Opinion
Case No. 20080364-CA.
Filed April 16, 2009. Not For Official Publication
Appeal from the Third District, Salt Lake Department, 050921371 The Honorable L.A. Dever.
J. Kent Holland, Salt Lake City, for Appellant.
Rick L. Rose and Kristine M. Larsen, Salt Lake City, for Appellee.
Before Judges Greenwood, Bench, and Orme.
MEMORANDUM DECISION
Mark Greer appeals the trial court's grant of summary judgment in favor of Big 5 Corp., which does business as Big 5 Sporting Goods (Big 5), arguing that the trial court erred by failing to toll the statute of limitations for the filing of his complaint and by failing to hold a hearing on Big 5's motion for summary judgment. "We review a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness, and we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Stevens v. LaVerkin City, 2008 UT App 129, ¶ 16, 183 P.3d 1059 (citation and internal quotation marks omitted).
The trial court correctly held that Greer's claims against Big 5 were barred by the statute of limitations. Because Greer's claims arose out of an accident at Big 5's store that occurred on December 1, 2001, Greer was required to file suit against Big 5 by December 1, 2005.See Utah Code Ann. § 78B-2-307(3) (2008) (requiring an action for relief not otherwise governed by a separate statute of limitations to be brought within four years). It is undisputed that the only complaint against Big 5 on record with the court was date-stamped December 2, 2005 — one day past the four-year limitations period.
Although Greer would have us determine the timeliness of his filing based on a copy of the complaint that was date-stamped November 28, 2005, which Greer claims to have placed in the district court's external file box after hours that same day, we abide by the date-stamp on the only complaint found in the district court's file. Cf. In re M.S., 781 P.2d 1287, 1288-89 (Utah Ct.App. 1989) (assessing the timeliness of a notice of appeal based on the date the notice was filed with the correct court rather than the date that the notice was, "through mistake or inadvertence, incorrectly filed with [another court]"); Fields v. Mountain States Tel. Tel. Co., 754 P.2d 677, 679 (Utah Ct.App. 1988) (holding that a complaint is considered filed when a copy is received by the court clerk and not when it is placed in the mail).
Utah Code section 78B-2-112 does not toll the statute of limitations because there was no injunction or other statutory prohibition that prevented Greer from filing suit. See id. § 78B-2-112 ("The duration of an injunction or statutory prohibition which delays the filing of an action may not be counted as part of the statute of limitations."). Greer indicates that Big 5 was in forfeiture for 144 days during the relevant limitations period due to its failure to designate a registered agent in its state of incorporation — Delaware. However, Greer has not identified any statute in Utah or Delaware that would prohibit him from filing suit against a corporation in forfeiture.
Nor does Utah Code section 78B-2-104 toll the statute of limitations because Big 5 was not absent from the state of Utah during the relevant limitations period. See id. § 78B-2-104 ("If after a cause of action accrues the person departs from the state, the time of his absence is not part of the time limited for the commencement of the action."). Big 5 continued to exist during the time it was in forfeiture. See Restatement (Second) of Conflict of Laws § 299 (1971) ("Whether the existence of a corporation has been terminated or suspended is determined by the local law of the state of incorporation."); see also Frederic G. Krapf Son, Inc. v. Gorson, 243 A.2d 713, 715 (Del. 1968) (holding that a Delaware corporation does not cease to exist during a period of forfeiture and remains subject to suit); cf. Murphy v. Crosland, 886 P.2d 74, 83 (Utah Ct.App. 1994) (holding that suspension does not affect a Utah corporation's existence),aff'd, 915 P.2d 491 (Utah 1996). Moreover, Big 5 was qualified to conduct business in Utah and had a registered agent for service of process within the state during the entire limitations period. Therefore, Greer's claim that Big 5 was absent from the state is without merit.
We further conclude that the trial court did not err in granting summary judgment to Big 5 without allowing oral argument. Rule 7(e) of the Utah Rules of Civil Procedure states, "The court shall grant a request for a hearing on a motion [for summary judgment] . . . unless the court finds that . . . the issue has been authoritatively decided." Utah R. Civ. P. 7(e). As the dispositive issues related to the grant of summary judgment had been authoritatively decided, the trial court was not required to hold a hearing on Big 5's motion.
Accordingly, we affirm.
WE CONCUR: Pamela T. Greenwood, Presiding Judge, Gregory K. Orme, Judge.