Conner v. Department of Commerce

2019 UT App 91

THE UTAH COURT OF APPEALS

REBEKAH CONNER,

Appellant,

v.

DEPARTMENT OF COMMERCE, STATE OF UTAH,

AND FRANCINE GIANI,

Appellees.

Opinion

No. 20160909-CA

Filed May 23, 2019

Third District Court, Salt Lake Department

The Honorable Matthew Bates

No. 130907251

C. Reed Brown and Elizabeth B. Grimshaw,

Attorneys for Appellant

Kristin A. VanOrman, S. Spencer Brown, and Ashley

F. Leonard, Attorneys for Appellees

JUDGE DIANA HAGEN authored this Opinion, in which

JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.

HAGEN, Judge:

¶1 Rebekah Conner appeals from a dismissal of her wrongful

termination claim. The last business day before trial, the

Department of Commerce, State of Utah, and Francine Giani

(collectively, the Defendants) filed a motion for judgment on the

pleadings under rule 12(c) of the Utah Rules of Civil Procedure,

asserting that they were immune from suit due to governmental

immunity. The district court deferred consideration of the

motion until after trial. The jury found the Defendants liable for

wrongful termination and awarded Conner $240,000 in

damages. After trial, the district court granted the rule 12(c)

motion on the ground that the claim tried to the jury—wrongful

Conner v. Department of Commerce

termination in violation of public policy—is a tort claim for

which the government has not waived immunity. The court

rejected Conner’s argument that her amended complaint could

be reasonably read to state a statutory claim for wrongful

termination. The court also denied Conner’s subsequent motion

under rule 15(b) of the Utah Rules of Civil Procedure to amend

the pleadings to reflect that claim. Accordingly, the court

vacated the jury’s verdict for wrongful termination and entered

judgment on the pleadings, effectively immunizing the

Defendants from the jury’s verdict.

¶2 We conclude that the district court properly entered

judgment on the pleadings. Even when construed in the light

most favorable to Conner, her amended complaint did not state

a viable statutory claim for the simple reason that the statute on

which she relies does not provide for a private right of action.

For that same reason, the district court also properly denied

Conner’s motion to amend the pleadings to state such a

non-existent cause of action. We further conclude that the

Defendants did not waive their governmental immunity defense

and that the district court did not exceed its discretion when it

chose to entertain the Defendants’ rule 12(c) motion filed on the

eve of trial. Finally, Conner did not preserve her procedural due

process claim below and does not argue an exception to

preservation on appeal. Therefore, we affirm the district court’s

judgment on the pleadings.

BACKGROUND

¶3 Conner sued the Defendants after she was fired in 2013

from her job at the Department of Commerce. Conner had

served as the administrative assistant to the director, Giani, for

eight years. As a schedule AD employee in a confidential

relationship with and reporting directly to the department head,

Conner was exempt from the career service provisions of the

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Conner v. Department of Commerce

Utah State Personnel Management Act (USPMA). 1 Utah Code

Ann. § 67-19-15 (LexisNexis 2013). 2 According to Conner, Giani

did not like or trust the leadership of the Utah Attorney

General’s Office, where Conner’s husband worked as a special

agent. Conner claims that she was fired “based on Giani’s

troubled relationship with the A.G.’s office and the mere fact

that Conner’s husband was employed there.”

¶4 This appeal relates to the first cause of action alleged in

Conner’s amended complaint. 3 Conner titled this cause of action

as “Wrongful Termination Against Public Policy (Vindication of

Rights Created by Statute to be Free from Discrimination on

1. At-will employees are statutorily classified under Schedule A

of the USPMA while career service employees are statutorily

classified under Schedule B. “Career service systems were

designed to protect public employees from unfair personnel

practices occurring with political changes.” Report to the Utah

Legislature, A Limited Review of the State’s Career Service System

(July 2010), https://le.utah.gov/audit/10_08rpt.pdf [https://perma.

cc/K8VL-LD6W]. Among other protections, “[c]areer service

employees have the right to grieve certain personnel actions, a

right not granted to noncareer-service employees.” Id.

2. Throughout this opinion, we refer to the provisions of the

Utah Code in effect at the time of Conner’s termination, unless

otherwise noted.

3. Conner also claimed that the Defendants failed to pay her

severance benefits mandated by Utah law (second cause of

action) and, in the alternative, that the failure to pay severance

benefits breached the implied covenant of good faith and fair

dealing (third cause of action). Conner prevailed at trial on her

claim for severance benefits, and the Defendants have not

challenged that verdict and judgment on appeal.

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Conner v. Department of Commerce

the Basis of Political Affiliation or Other Nonmerit Factor).”

Conner cited Utah Code section 67-19-18(2) of the USPMA and

rule R477-2-3(2) of the Utah Administrative Code, both of

which provide that an employee may not be dismissed

because of “political affiliation.” Conner alleged that the statute

and rule reflect a substantial public policy against terminating

an employee based on political affiliation, which the

Defendants violated by firing Conner based on her husband’s

employment. She also alleged that she “has a statutory right

to be free from discrimination on the basis of political

affiliation.” 4

¶5 The Defendants filed an answer to the amended

complaint alleging two immunity-based affirmative defenses.

The thirteenth defense stated that Conner’s claims were “barred

by the doctrines of absolute and qualified immunity.” The

fourteenth defense stated that Conner’s claims were barred

because she had “failed to comply with the applicable

requirements of the Governmental Immunity Act” (GIA).

Although the Defendants later withdrew the fourteenth defense

concerning whether Conner had complied with the

requirements of the GIA, they did not withdraw the thirteenth

defense.

¶6 The Defendants did not move for judgment based on their

immunity from suit prior to the pretrial motion deadline. The

district court denied the Defendants’ motion for partial

summary judgment based on other grounds, and the case was

set for trial.

4. Although Conner’s briefs do not explain how her husband’s

employment in another part of state government constitutes

“political affiliation,” the jury found that she was terminated for

her “political affiliation,” and that finding is not at issue on

appeal.

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Conner v. Department of Commerce

¶7 One business day before trial, the Defendants filed a rule

12(c) motion for judgment on the pleadings, arguing that

Conner’s wrongful termination claim was barred by

governmental immunity. See Utah R. Civ. P. 12(c). Specifically,

the Defendants argued that Conner’s first cause of action was a

tort claim for wrongful termination in violation of public policy

for which governmental immunity had not been waived.

¶8 Conner moved to strike the motion for judgment on the

pleadings, arguing that it was untimely and that the

governmental immunity defense had been waived and

abandoned by the Defendants. The district court requested

briefing on the rule 12(c) motion but did not continue the trial.

The district court “made it clear that [it] was deferring on ruling

on the motion and that [it] . . . would rule on the motion after

trial.”

¶9 The jury returned a verdict in favor of Conner, finding

that Conner was terminated due to her political affiliation and

awarding her $240,000 in compensatory damages.

¶10 After full briefing post-trial, the district court heard

argument on the rule 12(c) motion. The district court recognized

that it “could have denied this motion for being untimely” as the

motion “was filed literally on the eve of trial.” Although the

court observed that governmental immunity “should have been

raised in a 12(b)(6) or in a 12(c) [motion] right after the answer

was filed,” it elected to entertain the motion because of the

“importance of the issues raised in the motion” and because,

when suing a governmental entity, a plaintiff is “responsible for

understanding [governmental immunity], knowing it, preparing

for it, [and] arguing alternative causes of action.” On the merits,

the district court construed Conner’s amended complaint to

assert “a wrongful termination tort” for which governmental

immunity had not been waived under the GIA. Accordingly, the

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Conner v. Department of Commerce

court granted the Defendants’ motion for judgment on the

pleadings.

¶11 In its oral ruling from the bench, the district court

indicated it was vacating the jury’s verdict. In a subsequent

written ruling, however, the court concluded that vacating the

jury’s verdict was “unnecessary and improper.” The court

explained,

The question of governmental immunity was not

put to the jury. Rather it was reserved for judgment

by the Court on the pleadings. Because the jury

never decided the issue of governmental

immunity, there is no reason to vacate the jury’s

verdict with respect to the first cause of action.

Instead, the jury’s verdict stands and the Court’s

order has the effect of immunizing [the]

Defendants from the verdict and dismissing the

cause of action.

¶12 Conner subsequently filed a rule 52(b) and 59 motion to

alter or amend the judgment and for a new trial, along with a

rule 15(b) motion to amend the pleadings to conform to the

evidence at trial. See Utah R. Civ. P. 52(b), 59(a)(7), 15(b)(1).

Conner argued that her wrongful termination claim could be

construed either as a claim sounding in tort, which would be

barred by governmental immunity, or as a statutory enforcement

claim. Conner argued that in granting the Defendants’ rule 12(c)

motion, the district court erred in not construing the pleadings

more liberally to include a claim that she was terminated in

violation of a statutory right. In the alternative, she argued that

such a statutory enforcement claim was tried by implied consent

and that the pleadings must be amended under rule 15(b) to

reflect the claim actually tried to the jury. The court denied

Conner’s motions, concluding that the “pleadings correctly

reflect the claim that was actually tried to the jury: wrongful

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Conner v. Department of Commerce

termination in violation of public policy,” which was “a tort

claim of wrongful termination.”

¶13 Conner appeals the district court’s grant of the

Defendants’ rule 12(c) motion, which resulted in the dismissal of

the wrongful termination claim, and the denial of her rule 15(b)

motion, in which the court refused to amend the pleadings to

include a claim of statutory enforcement.

ISSUES AND STANDARDS OF REVIEW

¶14 Conner makes two related arguments as to why her first

cause of action should not have been dismissed. She argues, first,

that the district court erred in granting the Defendants’ motion

for judgment on the pleadings under rule 12(c) of the Utah Rules

of Civil Procedure, and second, that the district court erred when

it declined to amend the pleadings to conform to the evidence

presented at trial under rule 15(b) of the Utah Rules of Civil

Procedure. Specifically, she argues that the district court should

have either construed her amended complaint or amended the

pleadings to assert a statutory cause of action that could survive

the affirmative defense of governmental immunity. Both issues

require us to consider the threshold question of whether such a

statutory cause of action exists. “Whether a particular statute

provides a private right of action is a question of statutory

interpretation,” Buckner v. Kennard, 2004 UT 78, ¶ 41, 99 P.3d 842,

which we review for correctness, Marion Energy, Inc v. KFJ Ranch

P’ship, 2011 UT 50, ¶ 12, 267 P.3d 863.

¶15 Next, we address Conner’s contention that the

Defendants should have been precluded from raising the

affirmative defense of governmental immunity on the eve of

trial. “We review the trial court’s findings of fact for clear error

and its conclusions of law for correctness.” Hart v. Salt Lake

County Comm’n, 945 P.2d 125, 132 (Utah Ct. App. 1997). We

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Conner v. Department of Commerce

review the district court’s interpretation and application of the

rules of civil procedure for correctness and will reverse only if

the appellant shows “error that was substantial and prejudicial.”

Hofheins v. Bajio Mountain West LLC, 2017 UT App 238, ¶¶ 26, 32,

414 P.3d 531 (quotation simplified).

¶16 Finally, Conner contends that her right to due process

was violated because the district court granted the Defendants’

rule 12(c) motion without providing Conner an opportunity to

modify her presentation at trial. “Constitutional issues,

including questions regarding due process, are questions of law

that we review for correctness.” Osburn v. Bott, 2011 UT App 138,

¶ 4, 257 P.3d 1028 (quotation simplified). But where the

constitutional issue is unpreserved, the appellant must establish

an exception to the preservation requirement. See In re A.W.,

2018 UT App 217, ¶ 26, 437 P.3d 640. Unless an exception to the

preservation rule applies, an appellate court will not review

unpreserved constitutional claims. Id.

ANALYSIS

¶17 The overarching issue on appeal is whether Conner’s

complaint adequately stated, or should have been amended to

state, a claim that is not barred by the GIA. “Generally, to

determine whether a governmental entity is immune from suit

under [the GIA], we apply a three-part test, which assesses

(1) whether the activity undertaken is a governmental function;

(2) whether governmental immunity was waived for the

particular activity; and (3) whether there is an exception to that

waiver.” Van de Grift v. State, 2013 UT 11, ¶ 8, 299 P.3d 1043

(quotation simplified).

¶18 On appeal, the parties do not dispute that the first part of

the test is met, because the Defendants’ actions with respect to

Conner’s employment qualify as a governmental function.

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Conner v. Department of Commerce

Concerning the second part, our supreme court has held that

termination of employment “for a reason that contravenes a

clear and substantial public policy gives rise to a cause of action

in tort,” Hansen v. America Online, Inc., 2004 UT 62, ¶ 7, 96 P.3d

950 (citing Peterson v. Browning, 832 P.2d 1280, 1284 (Utah 1992)),

for which immunity has not been waived, see Broadbent v. Board

of Educ. of Cache County School Dist., 910 P.2d 1274, 1277 (Utah Ct.

App. 1996). Therefore, if Conner’s first cause of action is

properly characterized as a tort claim for wrongful termination

in violation of public policy, immunity has not been waived and

there is no need to look for an exception to waiver under the

third part of the test.

¶19 Thus, the crux of this appeal is whether Conner’s first

cause of action could be properly construed or amended to state

a “statutory enforcement” claim instead of a wrongful

termination tort claim for which governmental immunity has not

been waived. 5 Because we conclude that the statute on which

Conner relies does not create a private right of action, Conner’s

claims could not be construed or amended in a way that would

survive the defense of governmental immunity.

I. No Statutory Cause of Action

¶20 On appeal, Conner makes two alternative arguments that

rely on the assumption that there is a private statutory cause of

action for violation of Utah Code section 67-19-18(2) and rule

R477-2-3(2) of the Utah Administrative Code. As an initial

matter, Conner contends that the district court should have

denied the Defendants’ rule 12(c) motion for judgment on the

5. Conner presumes that governmental immunity would be

waived for a claim of “statutory enforcement.” Because we

conclude that there is no private right of action under Utah Code

section 67-19-18(2), we have no need to address that premise.

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pleadings because, when construed in the light most favorable to

her as the nonmoving party, her amended complaint could be

read as stating a statutory enforcement claim. Alternatively, she

argues that such a statutory enforcement claim was tried by

implied consent and that the district court should have granted

her motion to amend the pleadings under rule 15(b) to reflect the

claim actually tried to the jury. See Fisher v. Davidhizar, 2011 UT

App 270, ¶ 9, 263 P.3d 440 (explaining that where an issue is

tried by the parties’ express or implied consent, the court “must

treat the claim as if it were properly raised in the pleadings”

(quotation simplified)).

¶21 In her amended complaint, Conner titled her first cause of

action “Wrongful Termination Against Public Policy,” which, as

the district court noted, is “a well-recognized tort claim in Utah.”

However, the label attached to the claim is not necessarily

dispositive. “Our rules of pleading require that a cause be made

out, but not necessarily that it always be correctly labeled.”

Youngblood v. Auto-Owners Ins. Co., 2007 UT 28, ¶ 22, 158 P.3d

1088. Where a complaint is “capable of more than one

construction,” only one of which is barred by governmental

immunity, our supreme court has “required that ambiguities be

construed in a manner that sustains the complaint.” Bingham v.

Roosevelt City Corp., 2010 UT 37, ¶ 45, 235 P.3d 730; see also Baker

v. Angus, 910 P.2d 427, 432 (Utah Ct. App. 1996) (viewing the

complaint in the light most favorable to the plaintiffs to state a

claim exempt from governmental immunity).

¶22 Conner notes that there are three exceptions to the general

rule that an employer’s decision to terminate an at-will

employee, like her, is presumed valid. An employee can

overcome the presumption of validity by demonstrating that

(1) there is an implied or express agreement that

the employment may be terminated only for cause

or upon satisfaction of some agreed-upon

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condition; (2) a statute or regulation restricts the

right of an employer to terminate an employee

under certain conditions; or (3) the termination of

employment constitutes a violation of a clear and

substantial public policy.

Hansen, 2004 UT 62, ¶ 7 (quotation simplified).

¶23 The district court ruled that Conner had pled and tried a

tort claim for wrongful termination in violation of public policy.

An at-will employee may bring a claim under the third exception

when “the public interest is so strong and the policy so clear and

weighty that we should place the policy beyond the reach of an

at-will employment contract.” Ray v. Wal-Mart Stores, Inc., 2015

UT 83, ¶ 12, 359 P.3d 614 (quotation simplified). In determining

“whether the legal right at issue reflects the type of clear and

substantial Utah public policy that qualifies as an exception to

the at-will rule,” courts consider, among other things, “whether

the policy at issue is reflected in authoritative sources of state

public policy.” Id. ¶ 14. “A policy is recognized in an

authoritative source of state public policy if it is plainly defined

by legislative enactments, constitutional standards, or judicial

decisions.” Id. ¶ 15 (quotation simplified).

¶24 In her amended complaint, Conner cited to Utah Code

section 67-19-18(2) of the USPMA to show that termination of an

employee based on political affiliation is against public policy in

Utah. The USPMA provides, in part, that an employee may not

be dismissed because of “political affiliation, or other nonmerit

factor.” Utah Code Ann. § 67-19-18(2) (LexisNexis 2013). A

knowing violation of a provision of the USPMA is punishable as

a class A misdemeanor. See id. § 67-19-29. Conner also quoted

rule R477-2-3(2) of the Utah Administrative Code, which

implements the USPMA and states that employment actions

may not be based on “political affiliation . . . or any other non-job

related factor.” Conner then explained how the cited statute and

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Conner v. Department of Commerce

rule supported her claim of wrongful termination in violation of

public policy:

The fact that both the state legislature and the

executive branch through its rules-making process

have expressly stated that Utah State Government

employers . . . may not discriminate against

employees on the basis of an employee’s political

affiliations, or discriminate against an employee for

any reason that is not related to job performance,

demonstrates that this is a substantial public

policy. Likewise, the fact that the legislature

criminalized behavior that would violate the

[USPMA] also supports the fact that this is a

substantial public policy.

¶25 As the district court recognized, the alleged “violation of

Rule 477-2-3(2) and Utah Code section 67-19-18(2) was put to the

jury because it was the public policy that underpinned

[Conner’s] tort claim.” In other words, the references to the

governing statute and regulation were offered “to demonstrate a

substantial public policy against terminating at-will employees

for political affiliations.” Our courts frequently look to statutes

“as a source of clear and substantial public policy,” even when

the statute does not create a private statutory cause of action.

Touchard v. La-Z-Boy, Inc., 2006 UT 71, ¶¶ 21–22, 148 P.3d 945; see

also Petersen v. Browning, 832 P.2d 1280, 1282 (Utah 1992)

(holding that “the public policy exception applies in this state

when the statutory language expressing the public conscience is

clear and when the affected interests of society are substantial”);

Berube v. Fashion Centre, Ltd., 771 P.2d 1033, 1043 (Utah 1989)

(“Public policy is most obviously, but not exclusively, embodied

in legislative enactments.”). Moreover, in pretrial proceedings,

Conner affirmatively represented that her claim sounded in tort.

On this record, the district court correctly determined that

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Conner’s first cause of action was pled and tried as a tort claim

for wrongful termination in violation of public policy.

¶26 Given that such a tort claim is barred by governmental

immunity, Conner argues that her amended complaint can be

alternatively construed (or amended) to state a statutory claim.

But, as the Defendants point out, Conner’s argument assumes

her statutory claim “is a valid cause of action.” The Defendants

maintain that the Utah Code does not provide a private right of

action for state employees alleging discrimination based on

“political affiliation” in violation of section 67-19-18(2). We

agree. Conner has not demonstrated that the USPMA should be

construed as creating a private right of action for a violation of

section 67-19-18(2).

¶27 “[T]he courts of this state are not generally in the habit of

implying a private right of action based upon state law, absent

some specific direction from the Legislature.” Broadbent v. Board

of Educ. of Cache County School Dist., 910 P.2d 1274, 1278 (Utah Ct.

App. 1996). Because it is a matter of statutory interpretation, we

“look first to the plain language of the statute for an express

indication that a private right of action was intended.” Machan v.

UNUM Life Ins. Co. of Am., 2005 UT 37, ¶ 24, 116 P.3d 342. “A

statute’s mere prohibition of a certain act does not imply creation

of a private right of action for its violation.” See Antonin Scalia

& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

313 (2012) (discussing the presumption against an implied right

of action). Instead, “[t]he creation of such a right must be either

express or clearly implied from the text of the statute.” Id.

¶28 Unlike other provisions of the Utah Code, the USPMA

does not expressly state a private right of action. Where the Utah

Legislature has intended to establish a private right of action, it

has done so expressly. “The Utah Code has many examples of

the explicit language which creates such rights, none of which

require anyone to add language or make inferences to impart the

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full meaning of the statute.” Miller v. Weaver, 2003 UT 12, ¶ 21, 66

P.3d 592. For example, the Utah Protection of Public Employees

Act provides that a public employee may assert a claim of

retaliatory action by “bringing a civil action for appropriate

injunctive relief, damages, or both.” Utah Code Ann. § 67-21-

4(1)(c)(ii) (LexisNexis 2016).

¶29 The USPMA contains no such provision. Instead, the

USPMA provides that a knowing violation of a provision of the

chapter is punishable as a class A misdemeanor. See id. § 67-19-

29 (2013). “When a statute makes certain acts unlawful and

provides criminal penalties for such acts, but does not

specifically provide for a private right of action, we generally

will not create such a private right of action.” Youren v. Tintic

School Dist., 2004 UT App 33, ¶ 4, 86 P.3d 771.

¶30 Moreover, it would be inconsistent with the legislature’s

statutory scheme to imply a private right of action in this case.

“Utah courts have rarely, if ever, found a Utah statute to grant

an implied private right of action.” Buckner v. Kennard, 2004 UT

78, ¶ 43, 99 P.3d 842. The reluctance to imply a private right of

action “is particularly strong when the Legislature has already

designated a method of resolution through an administrative

agency specifically empowered to handle issues such as the

discipline or termination” of public employees. Id. ¶ 49

(quotation simplified). “Even where there is a strong public

policy, as in discrimination, the legislative body retains the right

to specify the remedies and course of action available for

violations of a statute it has enacted to pursue such policy.” Id.

¶ 52. For example, the Utah Antidiscrimination Act (the UADA)

“prohibits a number of forms of employment discrimination, but

limits a victim’s recourse by providing that the exclusive remedy

under state law for employment discrimination is the

administrative procedure set forth in the [UADA].” Id. ¶ 52

(quotation simplified); see also Utah Code Ann. § 34A-5-107(15)

(LexisNexis 2013).

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¶31 Here, in addition to the criminal penalty, the 2013 version

of the USPMA provides administrative remedies for

discriminatory employment actions. First, an employee alleging

employment actions based on race, color, sex, retaliation,

pregnancy or childbirth, age, religion, national origin, or

disability, which are prohibited by the UADA, 6 see Utah Code

Ann § 34A-5-107(15), “may submit a written grievance to the

department head where the alleged unlawful act occurred” and,

if dissatisfied with the decision, may submit a complaint to the

Division of Antidiscrimination and Labor, whose decision is

subject to further agency and judicial review, id. § 67-19-32(1).

Second, the USPMA provides that “[a]ll grievances based upon a

claim or charge of injustice or oppression, including dismissal

from employment, resulting from an act, occurrence,

commission, or condition shall be governed by Chapter 19a,

Grievance Procedures, and Title 63G, Chapter 4, Administrative

Procedures Act.” Id. § 67-19-30(2). Those grievance procedures

apply only to career service employees. Id. § 67-19a-301. Third,

the USPMA delegates authority to the executive director of the

Department of Human Resource Management to establish rules

governing executive branch dismissals. Id. § 67-19-18(3). These

rules, which apply to both career service and exempt employees,

Utah Admin. Code R477-2-1 (LexisNexis 2013), provide that any

“employee who alleges unlawful discrimination may: (a) submit

a complaint to the agency head; and (b) file a charge with the

Utah Labor Commission” or “directly with the [Equal

Employment Opportunity Commission (EEOC)],” id. R477-2-

3(3).

¶32 Conner argues that these administrative procedures

provide little protection in her particular case because

6. The current version of the UADA also prohibits employment

actions based on sexual orientation or gender identity. See Utah

Code Ann. § 34A-5-107 (LexisNexis Supp. 2018).

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(1) “political affiliation” is not protected by the UADA; (2) as an

employee who was in a confidential relationship with and

reported directly to a department head, she was exempt from the

grievance procedures provided for career service employees;

and (3) “neither the Utah Antidiscrimination Division nor the

EEOC had jurisdiction to investigate discrimination based on

‘political affiliation,’” so her only remedy under the rules was to

submit a complaint to the agency head. We agree that the

statutory scheme plainly affords more protection to employees

alleging discrimination on the basis of race, color, sex,

retaliation, pregnancy or childbirth, age, religion, national origin,

or disability under the UADA than to employees alleging

discrimination based on “political affiliation, or other non-merit

factor” under section 67-19-18. It also provides more protection

to career service employees who are entitled to grievance

procedures not available to exempt employees in special

positions. Yet even employees in those more highly protected

situations have no private right of action and are limited to the

administrative procedures and judicial review provided by

statute. See Blauer v. Department of Workforce Services, 2014 UT

App 100, ¶ 6 n.2, 331 P.3d 1 (recognizing that “the UADA

provides only an administrative remedy for violations of its

provisions, not a private right of action”). Affording more

protection to Conner by implying a private right of action for

career service exempt employees alleging discrimination based

on “political affiliation” would be inconsistent with this

statutory scheme.

¶33 In the absence of any express direction or clear

implication in the language of the statute, we will not assume

that the legislature intended to create a private right of action for

violation of section 67-19-18(2). 7 Because Conner has not shown

7. Conner argues that the absence of a private right of action

under Utah Code section 67-19-18(2) would violate the “open

(continued…)

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that such a cause of action exists, the district court did not err in

failing to construe or amend her complaint to state such a claim.

II. Timeliness

¶34 Conner also argues that the district court should not have

entertained the rule 12(c) motion because the Defendants waived

their defense of governmental immunity by failing to plead and

pursue this defense. “Governmental immunity is an affirmative

defense to suits against state or local government.” Buckner v.

Kennard, 2004 UT 78, ¶ 35, 99 P.3d 842. As an affirmative

defense, governmental immunity can be waived. Hart v. Salt Lake

County Comm’n, 945 P.2d 125, 133 (Utah Ct. App. 1997).

¶35 In Hart, this court affirmed the district court’s conclusion

that the Salt Lake County Commission waived its governmental

immunity defense. Id. Although the County raised the

affirmative defense in its answer, during oral argument on its

motion for summary judgment, the County “in open court . . .

waived and abandoned the governmental immunity defense.”

Id. at 131 n.4 (quotation simplified). The County made no

attempt to raise the defense “through the conclusion of trial and

the jury verdict.” Id. (quotation simplified). Six months after the

trial ended, the County moved for judgment notwithstanding

the verdict based on governmental immunity. Id. at 133. In

concluding that the County’s actions waived the governmental

immunity defense, this court emphasized that defendants have

the burden of proving governmental immunity at trial and that

(…continued)

courts” provision of article I, section 11 of the Utah Constitution.

The open courts provision does not create a remedy or cause of

action where none otherwise exists, but instead limits the

legislature’s power to abolish an existing remedy. See Puttuck v.

Gendron, 2008 UT App 362, ¶ 19, 199 P.3d 971.

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Conner v. Department of Commerce

the County “wholly failed to both argue governmental

immunity at trial and to produce any evidence supporting that

argument.” Id. “As a result of the County’s inaction and failure

to meet its burden at trial,” this court did not disturb “the

[district] court’s findings or conclusion that the County waived

its affirmative defense of governmental immunity.” Id.

¶36 Unlike the County in Hart, the Defendants’ actions during

the course of this litigation did not waive governmental

immunity. Instead, while they were not as diligent as they could

have been, the Defendants adequately pled and pursued the

affirmative defense.

¶37 First, the Defendants adequately pled the affirmative

defense of governmental immunity in their answer to the

amended complaint. The Utah Rules of Civil Procedure require

that pleadings “be construed to do substantial justice.” Utah R.

Civ. P. 8(f). In accordance with this rule, courts construe

pleadings in favor of the pleader and “require the parties to

proceed to the merits, if such a course is permissible, after giving

the allegations and averments contained in the pleadings, and

the necessary inferences arising therefrom, a liberal construction

and application.” Harman v. Yeager, 110 P.2d 352, 354 (Utah 1941)

(quotation simplified).

¶38 As their thirteenth defense, the Defendants asserted that

Conner’s claims were “barred by the doctrines of absolute and

qualified immunity.” Conner argues that this language did not

adequately plead a defense of governmental immunity under

the GIA. Although the terms absolute and qualified immunity

are more commonly used to refer to a type of immunity arising

under federal law, 8 the Utah Supreme Court has also applied

8. Under qualified immunity, “government officials are not

subject to damages liability for the performance of their

(continued…)

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Conner v. Department of Commerce

those terms when discussing immunity conferred by the GIA. In

this context, “qualified immunity” simply means “immunity

subject to exceptions,” Hansen v. Salt Lake County, 794 P.2d 838,

842 (Utah 1990), and refers to the GIA’s grant of “general

qualified immunity for governmental functions” subject to the

exceptions “as . . . otherwise provided in this chapter,” Provo

City Corp. v. State ex rel. Dep’t of Transp., 795 P.2d 1120, 1124

(Utah 1990). In contrast, “absolute immunity” would refer to

“unqualified immunity” not subject to the waivers provided in

the GIA. Id.

¶39 In ruling that the Defendants had adequately pled a

governmental immunity defense, the district court noted this

line of cases. While the court recognized that the Defendants

could “have phrased [their thirteenth defense] more artfully in

their answer,” it ultimately concluded that “by asserting the

defenses of qualified immunity and absolute immunity,” the

Defendants “affirmatively raised the defense of immunity under

the GIA.” Given our liberal pleading standards and in light of

the case law using the terms absolute and qualified immunity in

the context of the GIA, the district court correctly ruled that the

answer adequately asserted the affirmative defense of

governmental immunity.

¶40 Conner also argues that the Defendants waived the

governmental immunity defense when they agreed to withdraw

(…continued)

discretionary functions when their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.” Buckley v. Fitzsimmons,

509 U.S. 259, 268 (1993) (quotation simplified). Absolute

immunity applies only when a public official is performing

“special functions” that “deserve absolute protection from

damages liability.” Id. at 268–69.

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Conner v. Department of Commerce

their fourteenth defense. The fourteenth defense alleged that

Conner had “failed to comply with the applicable requirements

of the [GIA] and, therefore, her claims in this civil action [were]

barred.” The GIA provides that a plaintiff’s claim against a

governmental entity or employee is barred unless the plaintiff

complies with the requirement of filing a timely written notice of

claim. See Utah Code Ann. § 63G-7-402 (LexisNexis 2016).

Withdrawing this defense related to whether Conner had

complied with the applicable procedural requirements of the

GIA did not waive the argument that the Defendants were

immune from suit. Indeed, in the same correspondence

withdrawing the fourteenth defense, the Defendants’ attorney

stated, “My client will not agree to withdraw its Thirteenth

Defense in this matter.” Thus, the Defendants’ conduct in this

case is readily distinguishable from the type of express

abandonment that occurred in Hart.

¶41 Second, the Defendants in this case did not wait until

after trial to raise the governmental immunity defense. As we

pointed out in Hart, the defendant has the burden of proving an

affirmative defense at trial. By failing to raise governmental

immunity until six months after trial, the County in Hart failed

to meet that burden. 945 P.2d at 133. But Conner has not directed

us to any authority that would require a defendant to establish

an affirmative defense prior to trial, although doing so by means

of a dispositive motion would surely be more efficient and, in

this case, may have obviated the need for discovery and trial. 9

The affirmative defense of governmental immunity, in

particular, “conceptually arises subsequent to the question of

9. It is uncertain whether resolution of the immunity issue earlier

in this case would have avoided trial. Conner ultimately

prevailed on her claims for severance benefits. The parties may

or may not have settled those claims had the wrongful

termination claim been dismissed before trial.

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Conner v. Department of Commerce

whether there is tort liability in the first instance.” Ferree v. State,

784 P.2d 149, 153 (Utah 1989), overruled on other grounds by Scott

v. Universal Sales, Inc., 2015 UT 64, 356 P.3d 1172. As noted,

judicial economy may have been better served had the

Defendants brought the motion in time to avoid or substantially

limit the scope of trial, but their failure to more diligently pursue

the affirmative defense prior to trial does not necessarily amount

to waiver.

¶42 Relatedly, Conner contends that the district court violated

the timing requirement in rule 12(c) of the Utah Rules of Civil

Procedure when it allowed the Defendants to file such a motion

the day before trial. Rule 12(c) requires that the motion be

brought “after the pleadings are closed but within such time as

not to delay the trial.” Utah R. Civ. P. 12(c). In this case, the

motion was filed one business day before the scheduled trial. As

the district court here recognized, it would have been well

within its discretion to deny the motion as untimely. See

Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 17, 163 P.3d 615

(recognizing that “a trial court does not abuse its discretion

when it denies as untimely last minute motions on the eve of

trial”). But the question on appeal is whether rule 12(c) prohibits

the district court from entertaining the motion under these

circumstances.

¶43 The district court did not violate the rules of civil

procedure or exceed its discretion by reserving its ruling on

the motion for judgment on the pleadings until after trial. See

Maxfield v. Herbert, 2012 UT 44, ¶ 11, 284 P.3d 647 (recognizing

that “[w]ithin the bounds set by rule and statute, . . . a district

court’s management of its docket and trial schedule is reviewed

for an abuse of discretion” (quotation simplified)). Given

the district court’s handling of the rule 12(c) motion, the late

filing did not in fact delay trial. Although the motion could not

have been fully briefed and resolved “within such time as not to

delay trial,” the rules do not require district courts to hear and

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Conner v. Department of Commerce

resolve a rule 12(c) motion prior to trial. To the contrary, the

rules expressly allow a court to defer its ruling on a rule 12(c)

motion. Rule 12(d) provides that a rule 12(c) motion “shall be

heard and determined before trial on application of any party,

unless the court orders that the hearings and determination

thereof be deferred until the trial.” Utah R. Civ. P. 12(d).

Significantly, rule 12(d) expressly contemplates a deferred ruling

even though, by definition, a motion for judgment on the

pleadings would not rely on the evidence developed or the facts

found at trial. When Conner moved to strike the rule 12(c)

motion as untimely, the district court “made it clear that [it] was

deferring on ruling on the motion and that [it] . . . would rule on

the motion after trial.”

¶44 Although rule 12(d) speaks of deferring a ruling “until the

trial,” the district court’s decision to rule on the matter after trial

is consistent with the concept that governmental immunity does

not conceptually arise until after liability is determined. See

Ferree, 784 P.2d at 153. “Generally, it is appropriate to address

liability issues . . . prior to addressing the affirmative defense of

the defendant’s immunity from suit.” Lyon v. Burton, 2000 UT 19,

¶ 12, 5 P.3d 616. As the district court explained, “[t]he question

of governmental immunity was not put to the jury,” because it

was a purely legal issue that the district court “reserved for

judgment by the Court on the pleadings.” Once the jury found

the Defendants liable, the court’s ruling had “the effect of

immunizing [the] Defendants from the verdict.”

¶45 Judicial economy may be better served by performing

the immunity analysis first, especially where, as here, that

analysis ends the inquiry. See Ledfors v. Emery County School Dist.,

849 P.2d 1162, 1164 (Utah 1993) (citing cases in which the

court has “performed the immunity analysis first, typically when

it ended the inquiry”). But, while a pretrial ruling in this case

may well have been preferable, we cannot say that the district

court was required to resolve the question of governmental

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Conner v. Department of Commerce

immunity before the jury determined liability. Therefore, the

district court’s handling of the rule 12(c) motion did not violate

the rules of civil procedure or otherwise constitute an abuse of

discretion.

III. Due Process

¶46 Finally, Conner contends that the timing of the rule 12(c)

motion and the court’s ruling deprived her of due process.

“Procedural due process requires, at a minimum, timely and

adequate notice and an opportunity to be heard in a meaningful

way.” McBride v. Utah State Bar, 2010 UT 60, ¶ 16, 242 P.3d 769

(quotation simplified). This encompasses the right to be heard

both “at a meaningful time and in a meaningful manner.”

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quotation

simplified).

¶47 Conner claims that the Defendants, intentionally or

unintentionally, “sandbagged” her by waiting to raise the

governmental immunity defense until it was too late for her to

pursue an alternative claim for statutory enforcement at trial. 10

She asserts that she “had a right to know what issues the

[district] court would be considering in reference to the Rule 12

motion before she presented her case at trial” and that “she did

not have a meaningful opportunity to oppose [the Defendants’]

motion at a meaningful time.”

10. Although we do not reach the merits of this claim for lack of

preservation, we note that Conner’s procedural due process

claim would necessarily fail given our conclusion that she has

not established that a private right of action exists for a violation

of Utah Code section 67-19-18(2). See supra ¶¶ 26–33. Even if the

rule 12(c) motion had been brought in a timely fashion and

resolved prior to trial, Conner could not have successfully

pursued a non-existent statutory enforcement claim.

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Conner v. Department of Commerce

¶48 “As a general rule, claims not raised before the trial court

may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11,

10 P.3d 346. It is well-established that the preservation

requirement “applies to every claim, including constitutional

questions.” Id.; see also State v. Dalton, 2014 UT App 68, ¶ 55, 331

P.3d 1110 (“The preservation requirement applies to

constitutional issues.”). Although Conner claims that she

preserved this issue, the parts of the record cited by Conner do

not support that assertion. “For an issue to be preserved, a party

must raise it before the district court specifically, in a timely

manner, and with support by evidence and relevant legal

authority, such that the issue has been presented to the trial

court in such a way that the trial court has an opportunity to rule

on it.” True v. Utah Dep't of Transp., 2018 UT App 86, ¶ 24, 427

P.3d 338 (quotation simplified). The portions of the record

Conner cites reflect her objections to the timeliness of the rule

12(c) motion, but do not allege a violation of her constitutional

right to due process. Her constitutional claim is therefore

unpreserved. Where the constitutional issue is unpreserved, the

appellant must establish an exception to the preservation

requirement. See In re A.W., 2018 UT App 217, ¶ 26, 437 P.3d 640

(“[I]t is well established that Utah appellate courts will not

review unpreserved constitutional claims unless an exception to

the preservation rule applies.”). Because Conner does not allege

an exception to preservation on appeal, we do not consider the

merits of her due process claim.

CONCLUSION

¶49 The belated rule 12(c) motion resulted in a regrettable

waste of party and judicial resources that might have been

avoided had the Defendants sought judgment based on

governmental immunity promptly after pleadings were closed

or, at the very least, in sufficient time to possibly avoid a

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Conner v. Department of Commerce

five-day jury trial. However, we cannot say that the court

exceeded its discretion in electing to entertain the motion.

¶50 On the merits, the district court correctly construed

Conner’s first cause of action as a tort claim for wrongful

termination in violation of public policy and denied her motion

to amend the pleadings post-trial to state a statutory

enforcement claim to overcome the defense of governmental

immunity. Conner has failed to establish that the statute on

which she relies creates a private right of action. Because the

government has not waived immunity for Conner’s only viable

claim—wrongful termination in violation of public policy—the

district court correctly granted the Defendants’ motion for

judgment on the pleadings, denied Conner’s motion to amend,

and dismissed the claim notwithstanding the jury’s verdict.

¶51 Affirmed.

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