               This opinion is subject to revision before final
                    publication in the Pacific Reporter

                                 2017 UT 51

                                  IN THE
     SUPREME COURT OF THE STATE OF UTAH

            CAROLE MARZIALE and JAMES MARZIALE,
                       Respondents,
                                     v.
                         SPANISH FORK CITY,
                             Petitioner.


                           No. 20160696
                       Filed August 22, 2017

           On Certiorari to the Utah Court of Appeals

                    Fourth District, Provo
               The Honorable Darold J. McDade
                       No. 130401364

                               Attorneys:
           Mark T. Flickinger, Provo, for respondents
 John M. Zidow, S. Spencer Brown, Salt Lake City, for petitioner

  JUSTICE HIMONAS authored the opinion of the Court, in which
      CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
          JUSTICE DURHAM, and JUSTICE PEARCE joined.


   JUSTICE HIMONAS, opinion of the Court:
                         INTRODUCTION
    ¶ 1 This appeal requires us to decide whether a credit card
error that caused Carole and James Marziale’s complaint against
Spanish Fork City (the City) to be rejected means that their
complaint and the attached undertaking were not timely filed. We
affirm the court of appeals and hold that the payment error did
not affect the timeliness of the Marziales’ filing.
                 MARZIALE v. SPANISH FORK CITY
                      Opinion of the Court

                        BACKGROUND
    ¶ 2 The Marziales submitted a complaint against the City
alleging that Ms. Marziale was injured from a fall at the City’s
sports complex on July 11, 2011. The Marziales first submitted a
complaint in the Spanish Fork division of the Fourth Judicial
District through the court’s e-filing system at 4:10 p.m. on
August 2, 2013.1 Their complaint, however, did not include a
notice of undertaking as required by the Governmental Immunity
Act of Utah and was automatically rejected in a matter of seconds
by the e-filing system. A printout of the “filing status” for this
complaint from the Utah State Bar’s “eFiling portal” stated that
the system “returned a ‘failure’ status during the validation step”
because “this court accepts only claims 20000 or less; you
submitted ‘unspecified.’” The Marziales contend that they did not
receive this notice.
    ¶ 3 At 4:20 p.m. that same day, the Marziales filed the same
complaint against the City, but this time with an undertaking and
in the Provo division of the Fourth Judicial District. The status
history of this complaint shows that it was “submitted by”
counsel for the Marziales on August 2, 2013, at 4:20:08 p.m., and
the status history showed both “approved” and “receipt issued”
at 4:41:56 p.m. The status history also showed that a clerk
manually rejected the filing at 4:41:56 p.m., setting the status to
“invalid.” The rejection contained the contact information for the
clerk and a message that said, “A credit card error has occurred;
please resubmit filing with valid credit card information for fee
payment. You may want to try re-entering the credit card
information, or a different credit card, before resubmitting.” The
Marziales state that they did not receive this notice.

   1 In opposition to the City’s motion for summary judgment,
the Marziales submitted several affidavits detailing facts
surrounding the process by which they commenced their lawsuit.
The City moved to strike these affidavits, but the district court
denied this motion, and we accordingly draw on these affidavits
to the extent that we must in construing the record in the light
most favorable to the nonmoving party. See Orvis v. Johnson, 2008
UT 2, ¶ 6, 177 P.3d 600 (stating that we view “the facts and all
reasonable inferences drawn therefrom in the light most favorable
to the nonmoving party” (citation omitted)).


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    ¶ 4 The statute of limitations for the Marziales’ claim
expired on September 6 or 7, 2013. On September 10, 2013, counsel
for the Marziales was unable to locate the filings on the court’s
system and an employee of the law firm contacted the Fourth
District Court. The Marziales state that this is when they first
learned the filings had been rejected. The Marziales refiled the
complaint and undertaking in the Provo division on
September 10, 2013, and it was accepted with proper payment.
    ¶ 5 The City then filed a motion for summary judgment,
arguing that the court lacked jurisdiction over the Marziales’
action because the September 10 filing date was outside of the
statute of limitations. The Marziales filed an opposition to the
City’s motion and a motion to correct the record, asking the
district court to change the date of their filing from September 10,
2013 to August 2, 2013. The court granted the City summary
judgment and denied the Marziales’ motion, finding that the
Marziales’ complaint had not been filed until September 10, 2013.
   ¶ 6 The Marziales appealed. The Utah Court of Appeals
reversed, holding that “the complaint’s electronic receipt was the
meaningful equivalent of its acceptance” and therefore the
complaint was filed on August 2, 2013. Marziale v. Spanish Fork
City, 2016 UT App 166, ¶ 17, 380 P.3d 40.
   ¶ 7 The City timely petitioned this court for certiorari, which
we granted pursuant to our jurisdiction under Utah Code section
78A-3-102(3)(a).
                    STANDARD OF REVIEW
    ¶ 8 “On certiorari review, this court reviews the decision of
the court of appeals, not the decision of the district court.”
Colosimo v. Roman Catholic Bishop of Salt Lake City, 2007 UT 25, ¶ 11,
156 P.3d 806. “Because a summary judgment presents questions of
law, we accord no particular deference to the court of appeals’
ruling and review it for correctness.” Ellsworth Paulsen Constr. Co.
v. 51-SPR-L.L.C., 2008 UT 28, ¶ 12, 183 P.3d 248 (citation omitted).
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the moving party is entitled to
judgment as a matter of law.” UTAH R. CIV. P. 56(a). We “view the
facts and inferences to be drawn therefrom in the light most
favorable” to the nonmoving party. Hamblin v. City of Clearfield,
795 P.2d 1133, 1135 (Utah 1990).


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                   MARZIALE v. SPANISH FORK CITY
                        Opinion of the Court

                             ANALYSIS
     ¶ 9 The City argues that neither of the Marziales’ attempts at
filing their complaint on August 2, 2013, was successful. The court
lacked subject matter jurisdiction over the complaint in the
Spanish Fork division, the City argues, because that filing did not
have an undertaking, which is a requirement under the
Governmental Immunity Act. And, the City contends, the
complaint filed in the Provo division was not valid because it
lacked proper payment at the time of filing. We hold that the
credit card error for the Marziales’ filing in the Provo division did
not affect the validity of their filing of the complaint. Because this
means that the Marziales’ lawsuit may proceed, we decline to
decide whether the filing in the Spanish Fork division was valid
because the question is moot.
       I. THE TIMELINESS OF THE PROVO COMPLAINT
    ¶ 10 The Marziales’ complaint in the Provo court was rejected
solely on the basis of a credit card error—the type of dishonored
payment that both our rules of civil procedure and case law say
does not affect the validity of the filing of a complaint.
    ¶ 11 We begin our analysis with the plain language of the
rules at issue. See Aequitas Enters. v. Interstate Inv. Grp., 2011 UT 82,
¶ 17, 267 P.3d 923. Rule 3 of the Utah Rules of Civil Procedure
details the commencement of an action and states in relevant part
that “[d]ishonor of a check or other form of payment does not
affect the validity of the filing, but may be grounds for such
sanctions as the court deems appropriate,” UTAH R. CIV. P. 3(a),
and that “[t]he court shall have jurisdiction from the time of filing
of the complaint or service of the summons and a copy of the
complaint,” UTAH R. CIV. P. 3(b). Rule 5 states that “[f]iling is
complete upon the earliest of acceptance by the electronic filing
system, the clerk of court or the judge.” UTAH R. CIV. P. 5(e).
Neither rule by its plain language requires valid payment for a
complaint to be filed or accepted. In fact, rule 3(a) explicitly states
the opposite—that dishonor of payment does not affect whether
the filing is valid.
   ¶ 12 Despite the clear language of rule 3, the City argues that
we should read into our procedural rules a requirement that filing
fees must be paid at the time a complaint is accepted for the filing
to be valid. The City points to Utah’s court fees statute, which


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requires that “all fees shall be paid at the time the clerk accepts the
pleading for filing,” UTAH CODE § 78A-2-301(1)(dd), and to
language added in 2008 to rule 5 tying the completion of filing to
the time of “acceptance.” The City argues that the use of
“acceptance” in rule 5 and “accepts” in the court fees statute
means that we should read the court fees statute’s requirement of
payment at the time of filing into rule 5.
    ¶ 13 We rejected a similar argument in Dipoma v. McPhie,
holding that rule 3 does not explicitly incorporate statutes—
including the precursor to the court fees statute—that require
payment of fees before court employees may perform their
services. 2001 UT 61, ¶¶ 10, 13 & n.5, 29 P.3d 1225 (holding that
statute providing that “all fees shall be paid at the time the clerk
accepts the pleading for filing” was not incorporated in rule 3 for
jurisdictional purposes). We reject the City’s argument that the
court fees statute is incorporated in rule 5 for similar reasons. The
use of “acceptance” in rule 5 and “accepts” in the court fees
statute does not mean that those provisions must be read together
in the way the City urges, which is to say, in a way that directly
conflicts with rule 3’s statement that dishonor of payment does
not affect the validity of filing.
    ¶ 14 Rather than requiring payment at the time of filing as a
matter of jurisdiction, rule 3 provides that dishonor of payment
“may be grounds for such sanctions as the court deems
appropriate, which may include dismissal of the action and the
award of costs and attorney fees.” UTAH R. CIV. P. 3(a). So while a
party should pay fees “at the time the clerk accepts the pleading
for filing,” UTAH CODE § 78A-2-301(1)(dd), dishonor of payment
results not in an invalid filing but in court-determined sanctions,
which may vary from case to case, UTAH R. CIV. P. 3(a); see also
Dipoma, 2001 UT 61, ¶ 19 (stating that where “a litigant receives
notice that his or her original payment has been returned for
insufficient funds, the litigant must pay the required filing fee
within a reasonable time to avoid dismissal of his or her action”).
   ¶ 15 Our holding in Dipoma squarely supports this
conclusion. In that case, the plaintiff filed a complaint with a
personal check for the amount due for the filing fee. 2001 UT 61,
¶ 2. The clerk of court accepted the check for the filing fee and
stamped the plaintiff’s complaint “filed.” Id. But a little over a
month later—after the statute of limitations had run—the check


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                  MARZIALE v. SPANISH FORK CITY
                       Opinion of the Court

was returned to the clerk of court for insufficient funds. Id. ¶ 3.
The plaintiff eventually paid the filing fee and served the
defendant, but the defendant moved for summary judgment,
arguing that the complaint was not filed until the plaintiff actually
paid the filing fee and therefore was barred under the statute of
limitations. Id. ¶¶ 3–4.
    ¶ 16 We held that “payment of filing fees is not a
jurisdictional prerequisite for the commencement of an action
under rule 3 of the Utah Rules of Civil Procedure,” noting that a
contrary rule “could potentially lead to harsh, unintended results,
especially in the case of a check returned for insufficient funds.”
Id. ¶¶ 15–16.
    ¶ 17 The City argues that the e-filing system’s status history
showing “approved” and “receipt issued” at the same time it was
rejected shows that the complaint was not initially approved and
stamped “filed,” as was the case in Dipoma. But Dipoma’s holding
was not tied to the complaint being stamped “filed” before the
payment error was noticed. In Dipoma, the payment error, noticed
after filing, did not undo the validity of the filing; here, the error
was noticed before (or at the same time as, according to the
e-filing status history) the clerk’s rejection and cannot serve as a
basis to find the filing untimely. Dipoma’s holding—that payment
of filing fees is not a jurisdictional prerequisite to a valid filing—
does not depend on when the error is discovered.
   ¶ 18 We therefore hold that the dishonor of the credit card
payment did not affect the validity of the filing for the Provo
complaint.2



   2  We need not decide at which point in time the Marziales’
complaint was accepted by the court’s e-filing system. The e-filing
system indicates that at some point—either before or
contemporaneous to the e-filing system’s rejection—the
Marziales’ complaint was “approved.” Given that the filing was
approved at some point, a dishonor of payment cannot form the
basis for a rejection of the filing. We pause to note, however, that
we may have reached a different conclusion regarding whether a
filing occurred if the City had established that the complaint had
never been accepted. But it was the City’s burden to demonstrate
                                                               (cont.)

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       II. THE TIMELINESS OF THE PROVO UNDERTAKING
    ¶ 19 Because the Marziales’ payment also covered their
undertaking, the City’s argument that the late filing deprived the
district court of subject matter jurisdiction also raises the question
of whether the dishonor of payment affected the validity of the
undertaking.
    ¶ 20 We note upfront that failure to timely file an
undertaking under the Governmental Immunity Act “is an
affirmative defense” and not a jurisdictional issue. Hansen v. Salt
Lake Cty., 794 P.2d 838, 840 (Utah 1990) (“In contrast to other
procedural requirements of the Governmental Immunity Act,
failure to comply with [the undertaking provision] does not bar a
suit.”).3 And we hold that the principle in rule 3 of the Utah Rules
of Civil Procedure—that dishonor of payment does not affect the
validity of the filing—extends to the payment of an undertaking
under the Governmental Immunity Act.
    ¶ 21 Utah Code section 63G-7-601 provides that (1) actions
under the Governmental Immunity Act are “governed by the
Utah Rules of Civil Procedure to the extent that they are
consistent” with the Act, UTAH CODE § 63G-7-601(1); and (2) an
action must include an undertaking at the time of filing, id.
§ 63G-7-601(2). Nothing in rule 3 is inconsistent with the
Governmental Immunity Act. We therefore must determine how


that no genuine issue of material fact existed as to this issue. And
the City has not carried its burden.
   3  Hansen v. Salt Lake County, 794 P.2d 838 (Utah 1990),
addressed a previous version of the Governmental Immunity Act,
which stated, “At the time of filing the action the plaintiff shall file
an undertaking in a sum fixed by the court, but in no case less
than the sum of $300, conditioned upon payment by the plaintiff
of taxable costs incurred by the governmental entity in the action
if the plaintiff fails to prosecute the action or fails to recover
judgment.” UTAH CODE § 63-30-19 (1989). This law was repealed
and replaced in 2004, but the current version contains no
substantive differences. See UTAH CODE § 63G-7-601 (2017). Thus,
Hansen’s principle that the provision is not jurisdictional still
applies. 794 P.2d at 840.


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                  MARZIALE v. SPANISH FORK CITY
                       Opinion of the Court

rule 3, which governs commencement of actions, applies to filings
under section 601.
    ¶ 22 Rule 3 explicitly applies only to complaints, which are a
general requirement for civil actions. UTAH R. CIV. P. 3(a). But we
believe that it is consistent with the Governmental Immunity Act
to apply rule 3’s principle—that dishonor of payment does not
affect the validity of a filing—to an undertaking as well.
    ¶ 23 Indeed, incorporation of rule 3 into the Governmental
Immunity Act’s undertaking requirement is proper as a matter of
constitutional avoidance. This canon encourages courts to “reject[]
one of two plausible constructions of a statute on the ground that
it would raise grave doubts as to its constitutionality,” since we
presume that the legislature enacts laws “in the light of
constitutional limitations.” Utah Dep’t of Transp. v. Carlson, 2014
UT 24, ¶ 23, 332 P.3d 900 (citation omitted). A holding that
dishonor of payment affects the validity of the filing of an
undertaking could have serious due process problems if—as is
alleged here—the undertaking payment has been dishonored
through no fault of the plaintiff and the plaintiff has received no
notice of the dishonor of payment until after the statute of
limitations has run. Timely notice of rejection is key because
“[t]imely and adequate notice” is part of “the very heart of
procedural fairness.” Nelson v. Jacobsen, 669 P.2d 1207, 1211 (Utah
1983); see also Dipoma v. McPhie, 2001 UT 61, ¶ 15, 29 P.3d 1225
(“[A] check may be returned for many reasons, some of which are
beyond the ability of the payor to control—such as bank error—
and a plaintiff should not have his or her action dismissed due to
problems beyond their control.”). The City maintains that the
court sent a notice of rejection after each of the Marziales’
submissions. But, as the moving party, the City bears the burden
of establishing that there are no disputed facts on a material issue,
and it has failed to establish undisputed facts showing that the
Marziales received any such notice.4 Thus, to avoid possible


   4 The City alleges that the notice of the credit card error was
sent to the Marziales’ service provider on August 2, 2013, but the
Marziales provided evidence, by affidavit, that they did not
receive notification that their payment was rejected until
September 10, 2013, when an employee of their law firm contacted
                                                              (cont.)

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constitutional problems stemming from a lack of notice, the better
reading of section 63G-7-601 and rule 3 is that an undertaking is
encompassed by the rule.
    ¶ 24 We emphasize that our determination today that rule 3
is not displaced by the provisions of the Governmental Immunity
Act extends only to the filing of an undertaking, not to the other
prerequisites to filing an action under the Governmental
Immunity Act, such as a notice of claim. The Governmental
Immunity Act does not generally displace all otherwise applicable
law, but it is “comprehensive” and “all-encompassing” on the
“matters that it regulates in comprehensive detail.” Craig v. Provo
City, 2016 UT 40, ¶ 22, 389 P.3d 423 (emphasis omitted). Thus,
where portions of the Act, such as the notice of claim portion,
specifically regulate an area and contain no language to support
the idea that they should be supplemented, we will not import
other statutory language. Id. ¶¶ 26, 38–40 (holding that the
Governmental Immunity Act already speaks “in elaborate detail
on the precise timing of the initial notice of claim and of the
subsequent action to be filed in district court” and therefore a
separate statute that allowed for the extension of a statute of
limitations did not apply (citing UTAH CODE §§ 63G-7-402, 403)).
    ¶ 25 But the Governmental Immunity Act does not regulate
when an action is considered filed or how payment errors affect
the filing, instead incorporating by reference—and thereby
deferring to—the Utah Rules of Civil Procedure. See UTAH CODE
§ 63G-7-601(1). It is therefore appropriate to apply rule 3’s
principle that “[d]ishonor of a check or other form of payment
does not affect the validity of the filing” to the payment of an
undertaking under the Governmental Immunity Act.
                         CONCLUSION
   ¶ 26 We hold that the Marziales’ credit card payment error
was the equivalent of “[d]ishonor of a check or other form of
payment” and therefore did not “affect the validity of the filing”

the Fourth District Court. And because this is on appeal from a
motion for summary judgment, we view “the facts and all
reasonable inferences drawn therefrom in the light most
favorable” to the Marziales, who are the nonmoving party. Orvis
v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation omitted).


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                  MARZIALE v. SPANISH FORK CITY
                       Opinion of the Court

of their complaint or undertaking in the Provo division under
rule 3 of the Utah Rules of Civil Procedure. Thus, the City has not
met its burden to show as a matter of law and undisputed fact
that the Marziales’ filing was outside of the statute of limitations.
We therefore affirm the court of appeals in reversing the district
court’s grant of summary judgment for the City, and we remand
for proceedings consistent with this opinion.




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