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

2

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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Opinion of the Court

3

¶ 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).
MARZIALE v. SPANISH FORK CITY

Opinion of the Court

4

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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Opinion of the Court

5

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 
MARZIALE v. SPANISH FORK CITY

Opinion of the Court

6

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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Opinion of the Court

7

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.
MARZIALE v. SPANISH FORK CITY

Opinion of the Court

8

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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Opinion of the Court

9

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).
MARZIALE v. SPANISH FORK CITY

Opinion of the Court

10

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.