This opinion is subject to revision before

publication in the Pacific Reporter 

2013 UT 66 

IN THE 

SUPREME COURT OF THE STATE OF UTAH

GERARDO THOMAS GARZA, 

Plaintiff and Appellant, 

v. 

TROY BURNETT, 

Defendant and Appellee. 

No. 20120180 

Filed November 1, 2013 

On Certification from the United States Court of Appeals 

Michael D. Zimmerman, Amber M. Mettler, 

Salt Lake City, for appellant 

Heather S. White, R. Scott Young, 

Salt Lake City, for appellee 

ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of the 

Court, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM,

JUSTICE PARRISH, and JUSTICE LEE joined.

 

ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court: 

INTRODUCTION

¶ 1 We have agreed to answer the following question 

certified to us by the United States Court of Appeals for the Tenth 

Circuit: 

Under Tenth Circuit decisions at the time Gerardo 

Thomas Garza filed his complaint, approximately two 

years remained in [the] limitations period [before his 

claim would become time-barred]. A Supreme Court 

decision soon after filing, however, overturned those 

decisions and rendered his complaint approximately 

ten months late. Under Utah law, does an 
GARZA v. BURNETT

Opinion of the Court 

2	

intervening change in controlling circuit law merit 

equitable tolling under these circumstances?1 

¶ 2 For the reasons set forth below, we hold that an 

intervening change in law does merit equitable tolling. 

BACKGROUND

¶ 3 We recite the facts as stated in the certification order from 

the Tenth Circuit Court of Appeals.2 On April 19, 2002, Ogden 

City Police Officer Troy Burnett and another officer performed a 

“knock and talk” investigation of a motel room. A woman 

answered the door and permitted the officers to enter. Upon 

entering, the officers heard the bathroom door slam. They asked 

the woman who was in the bathroom and she replied that her 

boyfriend was inside. The officers entered the bathroom without 

permission and found Gerardo Thomas Garza inside with a gun 

and methamphetamine. Mr. Garza was arrested and charged 

with possession of a firearm by a felon and possession of 

methamphetamine, both in violation of federal law. Before trial, 

Mr. Garza challenged the constitutionality of the search and 

sought to exclude the evidence obtained from it, but failed. 

Mr. Garza then entered a conditional guilty plea, reserving his 

right to appeal the district court’s denial of his motion to 

suppress. The district court sentenced Mr. Garza to thirty-seven 

months imprisonment and three years supervised release. 

Mr. Garza appealed. On February 2, 2005, the Tenth Circuit 

overturned Mr. Garza’s conviction, holding that the officers’ 

search of the motel bathroom was unreasonable under the Fourth 

Amendment.3 Mr. Garza subsequently brought a claim under 

42 U.S.C. § 1983 against Officer Burnett in federal court on 

February 16, 2007, based on that unreasonable search.4 

1 Garza v. Burnett, 672 F.3d 1217, 1222 (10th Cir. 2012). 

2 Garza v. Burnett, 672 F.3d 1217 (10th Cir. 2012).

3 United States v. Garza, 125 F. App’x 927, 932–33 (10th Cir.). 

4 Technically, Mr. Garza’s complaint was received by the court 

on February 16, 2007, but “was not filed until after the court 

approved his motion to proceed in forma pauperis on April 5, 

2007.” Garza, 672 F.3d at 1219 n.1. The Tenth Circuit determined 

that “the filing date relates back to the date of the complaint’s 

(con’t.)
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Opinion of the Court 

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¶ 4 Shortly after Mr. Garza filed his claim, the United States 

Supreme Court issued its opinion in Wallace v. Kato, clarifying 

when certain § 1983 claims accrue.5 Almost two years later, on 

January 29, 2009, Officer Burnett moved for summary judgment. 

He claimed that Mr. Garza’s claim was barred by the statute of 

limitations. Mr. Garza opposed the motion for summary 

judgment. He argued that he was entitled to equitable tolling of 

the limitations period because Wallace changed the law affecting 

the accrual of his claim. The district court granted Officer 

Burnett’s motion. The court concluded that, as a result of Wallace,

Mr. Garza’s claim accrued on the date the Fourth Amendment 

violation occurred and Mr. Garza was not entitled to equitable 

tolling, and therefore Mr. Garza’s claim was untimely. 

¶ 5 The parties agree that state law determines the length of 

the statute of limitations period, and federal law governs the 

accrual date of the cause of action.6 Thus, it is clear under Utah 

law that a four-year statute of limitations applies to Mr. Garza’s 

§ 1983 claim.7 However, the question of when the limitations 

period began to run in this case is complicated. Four days after 

Mr. Garza filed his complaint in February 2007, the Supreme 

Court issued Wallace, which overturned then-existing Tenth 

Circuit law regarding the accrual date for § 1983 claims.8 

¶ 6 Under Tenth Circuit precedent at the time of Mr. Garza’s 

conviction, a § 1983 claim was not cognizable if it would render 

																																																																																																																																						

receipt under these circumstances,” and thus we treat 

February 16, 2007 as the filing date. Id.

5 549 U.S. 384, 391–92 (2007). 

6 It is well settled, and the parties agree, that federal law 

governs the issue of when a § 1983 claim accrues and state law 

dictates the length of the statute of limitations for a § 1983 claim—

the same period as provided for personal injury torts. Id. at 387–

88. 

7 UTAH CODE § 78B-2-307(3); see Jepson v. State Dep’t of Corr., 

846 P.2d 485, 488 (Utah Ct. App. 1993) (applying a four-year 

limitation to a personal injury suit). 

8 Garza, 672 F.3d at 1220. 
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Opinion of the Court 

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invalid a plaintiff’s conviction or sentence.9 This precedent was 

based on the Tenth Circuit’s interpretation of Heck v. Humphrey, 

wherein the United States Supreme Court determined that “a 

§ 1983 cause of action for damages attributable to an 

unconstitutional conviction or sentence does not accrue until the 

conviction or sentence has been invalidated.”10 Before Wallace, 

the Tenth Circuit interpreted the Heck bar of deferred accrual to 

apply “to both extant and anticipated convictions.”11 Therefore, 

under the rule in place when he was convicted, Mr. Garza could 

not have brought his § 1983 claim before the Tenth Circuit 

overturned his conviction. Had he attempted to do so, it would 

have been dismissed.12 Under the law existing at the time, the 

statute of limitations did not run on Mr. Garza’s § 1983 claim 

while he was incarcerated. Indeed, he did not have a claim until 

his conviction was overturned on February 2, 2005. “Thus, under 

circuit precedent on the date of filing, [Mr.] Garza’s accrual date 

would have been February 2, 2005 and his complaint would have 

been filed well within the four-year limitations period.”13 

¶ 7 However, in February 2007, the Supreme Court clarified 

the scope of Heck in Wallace. The Court held that Heck’s deferred 

accrual bar applies only when success in a § 1983 action would 

impugn an extant conviction, and it does not apply to anticipated 

convictions.14 In other words, if a plaintiff is convicted at the time

that a § 1983 claim accrues, then accrual of the claim would be 

deferred. But the mere possibility of a future prosecution or 

9 Beck v. City of Muskogee Police Dep’t, 195 F.3d 553, 557 (10th 

Cir. 1999). 

10 512 U.S. 477, 489–90 (1994). 

11 Garza, 672 F.3d at 1218. 

12 Although defendants argue the Heck bar was inapplicable to 

Mr. Garza’s claims all along, in certifying this question to us, the 

Tenth Circuit concluded that they “would have applied the Heck

bar to [Mr.] Garza’s suit had it been brought prior to [its] order 

reversing his conviction.” Id. at 1220. 

13 Id. 

14 549 U.S. at 393. 
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Opinion of the Court 

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conviction does not defer accrual of a § 1983 claim.15 So in this 

case, because Mr. Garza could have brought his § 1983 claim for 

the illegal search before his conviction, “his limitations period 

began to run on the date of the unconstitutional search, rendering 

his complaint untimely.”16 Consequently, Wallace retroactively 

rendered Mr. Garza’s claim untimely by transforming the accrual 

date from February 2005 to April 2002. 

¶ 8 The district court applied the Wallace rule and concluded 

that Mr. Garza’s § 1983 claims based on the unreasonable search 

accrued on the date of the challenged search, April 19, 2002, and 

were not tolled under federal law by his later conviction. Thus, 

the district court ruled that the statute of limitations for 

Mr. Garza’s claims expired on April 18, 2006—four years after the 

date of the search—and his complaint was untimely. The district 

court further determined that Utah’s doctrine of equitable tolling 

did not apply because Mr. Garza had “not shown that he was 

unable to assert his rights within the limitations period” and had 

“inexcusably and unreasonably slept on [his] rights, making him 

ineligible for equitable tolling under Utah law.”17 Consequently, 

the district court entered summary judgment in favor of Officer 

Burnett. Mr. Garza appealed to the Tenth Circuit, arguing that the 

intervening change in law brought about by Wallace entitled him 

to equitable tolling under Utah law. Mr. Garza also moved to 

certify the equitable tolling question to this Court. We accepted 

the invitation to answer the certified question. We have 

jurisdiction under Utah Code section 78A–3–102(1). 

STANDARD OF REVIEW 

¶ 9 “On a certified question, we are not presented with a 

decision to affirm or reverse, and traditional standards of review 

15 Id. 

16 Garza, 672 F.3d at 1221. 

17 Garza v. Burnett, No. 1:06-CV-134DAK, 2010 WL 1212084, at 

*4, *5 (D. Utah Mar. 23, 2010) (alteration in original) (internal 

quotation marks omitted). 
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do not apply. Therefore, [o]n certification, we answer the legal 

questions presented without resolving the underlying dispute.”18 

ANALYSIS

¶ 10 In certifying this question to us, the Tenth Circuit 

correctly notes that “the doctrine of equitable tolling ‘has been 

developed almost exclusively through application of the 

discovery rule.’”19 Indeed, “[n]o Utah court has ever found 

occasion to equitably toll a limitations period when there has not 

first been a demonstration that the party seeking the tolling could 

invoke the discovery rule.”20 An essential prerequisite to 

application of the discovery rule is that a plaintiff “did not know 

nor should have reasonably known the facts underlying the cause 

of action.”21 Although we have never equitably tolled a 

limitations period without first applying the discovery rule, we 

have been clear that “[t]his is not to say that no party may ever 

qualify for equitable relief in the absence of such a delay in 

discovering the claim, but rather to illustrate the high bar this 

court has required those seeking such extraordinary relief to 

hurdle.”22 

¶ 11 To that end, “[t]he doctrine of equitable tolling should 

not be used simply to rescue litigants who have inexcusably and 

unreasonably slept on their rights, but rather to prevent the 

expiration of claims to litigants who, through no fault of their own, 

have been unable to assert their rights within the limitations 

period.”23 “Under our traditional principles of equitable tolling, 

the party seeking equitable tolling must first show that he was 

18 Burns v. Astrue, 2012 UT 71, ¶ 7, 289 P.3d 551 (alteration in 

original) (footnote omitted) (internal quotation marks omitted). 

19 Garza v. Burnett, 672 F.3d 1217, 1221 (10th Cir. 2012) (quoting 

Beaver Cnty. v. Utah State Tax Comm’n, 2006 UT 6, ¶ 30, 128 P.3d 

1187). 

20 Beaver Cnty., 2006 UT 6, ¶ 29. 

21 Burneau v. Martino, 2009 UT 87, ¶ 23, 223 P.3d 1128. 

22 Beaver Cnty., 2006 UT 6, ¶ 29.

23 Id. ¶ 32 (emphasis added).
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Opinion of the Court 

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indeed disabled . . . from protecting his claim.”24 We have 

heretofore only found disability sufficient to warrant equitable 

tolling through application of the discovery rule. Today, we hold 

that an intervening change in controlling law that extinguishes a 

cause of action also constitutes disability sufficient to meet the 

high bar to warrant equitable tolling.25 

¶ 12 It is not often that a timely filed claim retroactively 

becomes untimely because of a judicial decision. We recognize 

that “[t]hese shifting authorities have placed . . . [Mr.] Garza in an 

unusual position.”26 Officer Burnett argues that Mr. Garza is not 

entitled to equitable tolling because he has failed to show that he 

could not reasonably have complied with the limitations period. 

Officer Burnett’s argument is premised on the fact that at the time 

Mr. Garza’s conviction was reversed, Mr. Garza still had over 

fourteen months in which to timely file his complaint under 

Wallace, but failed to do so. Instead, Mr. Garza waited two years 

to do so. The flaw in Officer Burnett’s argument can be traced to 

the fact that when Mr. Garza filed his complaint, it was timely 

under then-controlling circuit precedent. Statutes of limitations 

do not differentiate between plaintiffs who file as soon as their 

claims accrue and those who wait until the end of the limitations 

period. At bottom, Officer Burnett does not argue that Mr. Garza 

should have been more timely, but rather he is arguing that 

Mr. Garza should have been more prophetic. The law does not 

penalize parties for prophetic inadequacy.27 Neither does the law 

punish people for circumstances that are completely out of their 

control.28 Refusing to equitably toll the statute of limitations 

24 Id. ¶ 43. 

25 See id. ¶ 29.

26 Garza, 672 F.3d at 1218. 

27 See Houghton v. Dep’t of Health, 2005 UT 63, ¶ 23, 125 P.3d 860 

(“[P]laintiffs should not be penalized because their notice of claim 

failed to accurately predict future developments in the law.”). 

28 See R.C.S. v. A.O.L. (In re Baby Girl T.), 2012 UT 78, ¶ 28, 298 

P.3d 1251 (“It would fl[y] in the face of fundamental fairness . . . to 

allow a state agency’s inaction to cut off the rights of fathers who 

. . . have complied with the Act to the extent they are capable.” 

(alteration in original) (internal quotation marks omitted)). 
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Opinion of the Court 

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under these circumstances would be manifestly unjust because 

Mr. Garza would lose his cause of action due to circumstances 

beyond his control and through no fault of his own. 

¶ 13 Indeed, we are not the first court to address this question 

in the wake of Wallace. Wallace turned Heck on its head for a 

number of jurisdictions. Mr. Garza points to several district 

courts that have found that Wallace created circumstances 

sufficient to justify equitable tolling of the statute of limitations for 

plaintiffs whose claims were extinguished because of the change 

in controlling law.29 

¶ 14 In consideration of the rationale underlying equitable 

tolling, we hold that when a change in controlling law 

extinguishes an individual’s cause of action, equity will toll the 

statute of limitations to afford the plaintiff a reasonable period of 

time after the change in law to bring his claim. Indeed, this is 

precisely the type of circumstance that merits equitable tolling. 

29 Hargroves v. City of New York, 694 F. Supp. 2d 198, 211–12 

(E.D.N.Y. 2010) (“[T]he change in law occasioned by Wallace is the 

type of extraordinary circumstance that justifies equitable 

tolling. . . . Plaintiffs were diligent in pursuing their claims . . . and 

could not have predicted the still-years-away change in the law.” 

(footnote omitted)), rev’d on other grounds Hargroves v. City of New 

York, 411 F. App’x 378 (2d Cir. 2011); Wharton v. Cnty. of Nassau, 

No. 07-CV-2137(RRM)(ETB), 2010 WL 3749077, at *4 (E.D.N.Y. 

Sept. 20, 2010) (“Plaintiffs, through no fault of their own, relied on 

then-authoritative Second Circuit precedent to their detriment, 

and strict application of Wallace would effectively deprive 

Plaintiffs of their cause of action. . . . [This is the] extraordinary 

circumstance for which equitable tolling now applies.”); Kennedy 

v. City of Villa Hills, No. 07-122-DLB, 2008 WL 650341, at *5 (E.D. 

Ky. Mar. 6, 2008) (“The Court is not inclined to unilaterally punish 

Kennedy for circumstances not of his own making. . . . Under 

these circumstances, application of equitable principles is 

appropriate.”); Kucharski v. Leveille, 526 F. Supp. 2d 768, 775 (E.D. 

Mich. 2007) (“[S]trict application of Wallace to this case effectively 

deprives the plaintiffs of their cause of action. . . . [T]his is the 

unusual case that fits neatly within the doctrine of equitable 

tolling.”). 
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Opinion of the Court 

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Accordingly, a plaintiff that files timely before the change in law 

renders the claim untimely will uniformly satisfy this reasonable 

period of time. As such, Mr. Garza is entitled to equitable tolling 

because his claim was timely under Tenth Circuit precedent as it 

existed at the time of filing but was rendered untimely 

retroactively by the intervening change in law effectuated by the 

Supreme Court’s Wallace decision. 

CONCLUSION

¶ 15 We answer the Tenth Circuit’s certified question in the 

affirmative: Under Utah law, an intervening change in controlling 

law that extinguishes a previously timely cause of action does 

merit equitable tolling of the statute of limitations.