2017 UT App 149

THE UTAH COURT OF APPEALS

ROGER STEPHENSON,

Appellant,

v.

GERALD ELISON, BENNETT NEILSEN,

AND ALPINE SCHOOL DISTRICT,

Appellees.

Opinion

No. 20150693-CA

Filed August 10, 2017

Fourth District Court, Provo Department

The Honorable David N. Mortensen

No. 140400281

Sara Pfrommer and Emily Adams, Attorneys

for Appellant

Sean D. Reyes and J. Clifford Petersen, Attorneys

for Appellees

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES

STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.

1

POHLMAN, Judge:

¶1 Roger Stephenson filed suit in 2014, alleging that in the 

early 1980s he had been sexually assaulted by a junior high 

school teacher. Stephenson alleged claims against the teacher, 

Gerald Elison; the junior high school principal at the time, 

Bennett Neilsen; and the Alpine School District (ASD). The 

district court granted summary judgment in favor of the 

 

1. Judge Stephen L. Roth participated in this case as a member of 

the Utah Court of Appeals. He retired from the court before this 

decision issued.
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defendants on the ground that the relevant statutes of limitations 

expired before Stephenson filed suit. We dismiss Stephenson’s 

appeal on the related ground that Stephenson’s failure to 

provide timely notice of his claims left the district court without 

subject matter jurisdiction to adjudicate them.

BACKGROUND

¶2 From 1979 until 1982, Stephenson attended Orem Junior 

High School, where Elison was a drama and musical theater 

teacher.2 Stephenson enrolled in Elison’s classes and participated 

in plays produced under Elison’s supervision. In 1981 or 1982, 

Stephenson had a conversation with a classmate regarding 

Elison’s conduct toward him and allegedly described conduct 

that constituted sexual assault. The classmate informed a 

teacher, and the teacher reported the matter to Neilsen. 

¶3 Neilsen questioned Stephenson regarding the allegations, 

in a manner Stephenson described as “hostile and accusatory,” 

which led Stephenson “to believe he had acted inappropriately 

and would be subject to discipline.” Neilsen allegedly instructed 

Stephenson to recount the accusations, and the following day 

Neilsen and Elison allegedly pressed Stephenson on whether 

there had been a “misunderstanding.” No further action was 

taken. 

¶4 Over twenty-five years later, in January 2008, Stephenson 

“approached the Orem Police Department . . . with information 

regarding Elison’s abuse.” But a member of the police 

department with a “family connection” to Elison allegedly 

 

2. Because this case comes to us on summary judgment, we 

construe the facts in a light most favorable to Stephenson, the 

nonmoving party. See Jensen v. Young, 2010 UT 67, ¶ 2, 245 P.3d 

731. 
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interfered with the investigation of Stephenson’s claims, and “no 

legitimate investigation of Elison was ever conducted.” 

¶5 In February 2008, Stephenson confronted Elison and 

allegedly obtained “what is effectively a[] [signed] admission” of 

sexual assault, as well as an agreement that Elison would have 

“no further contact with minor children.” Around that same 

time, Stephenson approached ASD with his concern that no 

charges had been filed against Elison, and he was allegedly told 

that a thorough investigation had been conducted but no 

evidence corroborating his allegations of sexual abuse had been 

uncovered. 

¶6 In November 2013, Stephenson submitted a notice of 

claim to ASD, and in early 2014, Stephenson filed his complaint 

in the underlying action. Against Elison, he alleged sexual 

assault and sexual battery; against Elison and Neilsen, he alleged 

intentional infliction of emotional distress; and against Elison, 

Neilsen, and ASD, he alleged negligence, conspiracy, and failure 

to report sexual abuse of a minor. He also sought declaratory 

and injunctive relief. 

¶7 With regard to the timing of his lawsuit, Stephenson 

alleged that “[o]nly in the past few years” had he “become 

cognizant to the full extent of damages caused by Elison’s sexual 

abuse and ASD’s and Neilsen’s complicit enabling through 

willful inaction and active cover-up attempts.” Moreover, 

“exceptional circumstances involving physical and medical 

issues” had prevented Stephenson from filing the lawsuit “until 

this time.” 

¶8 Elison and Neilsen moved to dismiss, asserting that 

Stephenson had not timely provided notice of his claims as 

required by the Governmental Immunity Act of Utah. See Utah 

Code Ann. § 63-30-12 (Allen Smith Co. Supp. 1985) (providing 

that “[a] claim against the state or its employee for an act or 

omission occurring during the performance of his duties, within 
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20150693-CA 4 2017 UT App 149

the scope of employment, or under color of authority, is barred 

unless notice of claim is filed . . . within one year after the claim 

arises”) (repealed 2004); id. § 63G-7-402 (LexisNexis 2008).

¶9 Elison and Neilsen asserted that Stephenson’s claims were 

tolled until he reached the age of majority in the mid-1980s, that 

the one-year period to provide notice of his claims expired the 

following year, and that Stephenson did not file notice of his 

claims until 2013. According to Elison and Neilsen, because 

Stephenson had already “lost his right . . . to recover” on his 

claims, the alleged 2008 cover-up of those claims could not have 

resulted in damage, and Stephenson had not alleged and could 

not have sustained injury stemming solely from the alleged 

cover-up. ASD filed a separate motion asserting these same 

grounds for dismissal. 

¶10 The district court denied the motions, concluding that the 

complaint did not state “facts relevant to [Stephenson’s] 

compliance with the notice of claim procedures,” as there was 

“no mention of a notice of claim.” The court elected not to treat 

the motions to dismiss as motions for summary judgment and 

thereby consider matters outside the complaint because, in the 

court’s view, the “sensitive nature and complexity of the claims 

and defenses” rendered “summary resolution . . . premature.” 

See Utah R. Civ. P. 12(b) (requiring conversion of motions to 

dismiss to motions for summary judgment when the court 

considers “matters outside the pleading”)

¶11 Shortly thereafter, when the parties were engaged in 

initial discovery and months away from the deadlines set for 

completion of fact and expert witness discovery, Elison and

Neilsen moved for summary judgment. ASD joined the motion, 

which asserted that the statutes of limitations relevant to 

Stephenson’s claims had expired before Stephenson filed suit.

¶12 Stephenson asked the court to deny the motion because 

“factual issues” existed regarding whether the “statutes of 
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limitations [were] tolled.” Stephenson also obtained leave to file 

supplemental briefing regarding whether he should receive 

additional time to conduct discovery. In his briefing, Stephenson 

asserted that “[f]urther discovery is needed” on the issues of 

“the nature and extent of” Stephenson’s competency to bring an 

action alleging sexual abuse, “whether exceptional 

circumstances exist that tolled the statute of limitations,” and 

“whether fraudulent concealment tolls the statute of 

limitations.” 

¶13 Elison and Neilsen objected, asserting that Stephenson 

had “fail[ed] to explain how additional discovery directed to”

the defendants would “aid in [Stephenson’s] evaluation of his 

own mental competency.” (Emphasis omitted.) According to 

Elison and Neilsen, Stephenson “also fail[ed] to present any 

argument explaining why the discovery rule and/or fraudulent 

concealment apply to facts including his having direct 

knowledge of the circumstances surrounding the allegations of 

sexual abuse . . . both in 1981 and again in 2008.”

¶14 On reply, Stephenson asserted that “[m]ental capacity and 

memory repression are both issues which, if present as alleged, 

would have the effect of tolling the statute of limitations”; that 

“memory repression, mental capacity, and even influence of 

fraud . . . are issues squarely for expert discovery”; and that 

“expert reports are typically produced after discovery is 

complete.” Stephenson also alleged that “[t]here are, at this time, 

documents which indicate the possibility of fraudulent 

concealment but which require additional discovery.”

¶15 The district court granted the defendants’ motion for 

summary judgment and dismissed all of Stephenson’s claims. 

The court concluded that the defendants had met their initial 

burden with regard to expiration of the limitations periods and 

that Stephenson had failed to present evidence creating a fact

issue as to tolling. The court also denied Stephenson’s request 
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for additional time for discovery, concluding that Stephenson 

had “fail[ed] to explain how additional discovery directed to 

defendants [would] aid in his evaluation of his own mental 

competency” or would “affect his own admissions of having 

direct knowledge of the circumstances surrounding the 

allegations of sexual abuse.” 

¶16 Stephenson then moved to alter or amend the judgment, 

asserting that “newly discovered[] material evidence, including 

the opinions of Stephenson’s expert, demonstrates that the 

statute of limitations should be tolled.” Stephenson attached a 

brief report by Dr. David M. Ranks, who evaluated Stephenson

shortly after summary judgment was granted. Dr. Ranks’s writeup included his “initial expert opinion that the abuse and 

subsequent concealment ‘left [Stephenson] factually unable to 

comprehend his trauma.’” (Alteration in original.)

¶17 Later, in his reply briefing, Stephenson submitted a more 

substantive write-up and supporting declaration by Dr. Ranks, 

which stated, among other things, that Stephenson’s “attempts 

to reach out to law enforcement” and ASD officials in 2008 were

not “conclusive evidence” that he “factually comprehended at 

that time he had been sexually abused,” and Stephenson was 

“unable to factually comprehend the circumstances of his 

abuse[], and that he had been sexually abused, until the time this 

lawsuit was filed. In other words, . . . Stephenson was unable to 

comprehend his abuse sufficiently to bring the litigation until the 

time he actually” filed his complaint. 

¶18 The district court denied Stephenson’s motion, 

concluding that the opinions and declaration of Dr. Ranks were 

not newly discovered evidence because, at a minimum, an 

affidavit from Dr. Ranks could have been submitted prior to 

issuance of the court’s ruling on summary judgment. In 

addition, the court concluded that the evaluations and 

declaration did not establish, for tolling purposes, that
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Stephenson was unaware of the facts underlying his claims for 

any period of time prior to 2014. Stephenson appeals. 

ISSUES AND STANDARDS OF REVIEW

¶19 Stephenson contends the district court erred by granting 

summary judgment in favor of the defendants, denying his

motion to alter or amend the judgment, and denying his request 

for additional time for discovery. The defendants assert that each 

of the district court’s rulings should be upheld. They also assert

that summary judgment may be affirmed on the ground that 

Stephenson did not comply with the one-year notice of claim 

requirement imposed by the Governmental Immunity Act, and 

the district court therefore lacks subject matter jurisdiction over

Stephenson’s claims. 

¶20 We review the district court’s “legal conclusions and 

ultimate grant or denial of summary judgment for correctness.” 

Jones & Trevor Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 9, 284 P.3d 630

(citation and internal quotation marks omitted). “Summary 

judgment is appropriate when there are no genuine issues of 

material fact and the moving party is entitled to judgment as a 

matter of law,” viewing the facts and all reasonable inferences 

drawn therefrom in a light most favorable to the nonmoving 

party. Id.; accord Utah R. Civ. P. 56(a).3

¶21 In addition, when a party opposing summary judgment 

seeks additional time for discovery, we review the grant or 

 

3. Utah Rule of Civil Procedure 56 was amended in 2015, after 

the motion for summary judgment was argued and decided. But 

because the 2015 amendments did not alter “substantive Utah 

law” with regard to rule 56, we cite the current version of the 

rule. See Utah R. Civ. P. 56 advisory committee notes; accord 

Porter v. EB Golf LLC, 2016 UT App 82, ¶ 7 n.3, 372 P.3d 709. 
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20150693-CA 8 2017 UT App 149

denial of the motion for abuse of discretion. Crossland Sav. v. 

Hatch, 877 P.2d 1241, 1243 (Utah 1994). We likewise review a 

district court’s grant or denial of a motion to alter or amend the 

judgment for abuse of discretion. Sanpete Am., LLC v. Willardsen, 

2011 UT 48, ¶ 28, 269 P.3d 118.

ANALYSIS

¶22 The defendants assert there is an “alternative ground” for 

affirming the district court’s grant of summary judgment: that 

Stephenson did not comply with the Governmental Immunity 

Act’s one-year notice of claim requirement, and the district court 

therefore lacked subject matter jurisdiction over all of 

Stephenson’s claims. However, absence of subject matter 

jurisdiction is not merely an alternative ground this court may, 

at its discretion, address. “Lack of jurisdiction can be raised at 

any time,” and if the district court lacks subject matter 

jurisdiction to adjudicate Stephenson’s claims, this court is 

required to dismiss them. See Lamarr v. Utah State Dep’t of 

Transp., 828 P.2d 535, 540 (Utah Ct. App. 1992); accord Utah R. 

Civ. P. 12(h) (“[W]henever it appears by suggestion of the parties 

or otherwise that the court lacks jurisdiction of the subject 

matter, the court shall dismiss the action.”).

¶23 “[F]ailure to comply with the notice requirements of the 

Utah Governmental Immunity Act deprives the trial court of 

subject matter jurisdiction” over the asserted claims. Nielson v. 

Gurley, 888 P.2d 130, 134–35 (Utah Ct. App. 1994); see also Thomas 

v. Lewis, 2001 UT 49, ¶ 13, 26 P.3d 217 (“The notice of claim 

provisions of the Governmental Immunity Act are 

jurisdictional.”). We therefore address the question of proper 

notice first, and we reach the other issues raised on appeal only 

as necessary to resolve this threshold question. See Thomas, 2001 

UT 49, ¶ 13.
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¶24 Under the Governmental Immunity Act, a claim against a 

governmental entity or employee “for an act or omission 

occurring during the performance of the employee’s duties, 

within the scope of employment, or under color of authority, is

barred unless notice of claim is filed” as specified “within one 

year after the claim arises.” Utah Code Ann. § 63G-7-402 

(LexisNexis 2008).4 For purposes of the notice provision, “a claim 

arises when the statute of limitations that would apply if the 

claim were against a private person begins to run.” Id. § 63G-7-

401(1)(a). 

¶25 On appeal, Stephenson “assumes” that he was required to 

file a notice of claim for each of his claims, but “submits that he 

fulfilled that requirement by notice given in November 2013.” 

He contends that “the same equitable tolling arguments” he has 

asserted with regard to the statutory limitations periods also

apply to the one-year period for filing a notice of claim. On that 

basis, he claims to have made a sufficient showing of entitlement 

“to equitable tolling of the notice of claims provisions,” such that 

the district court had subject matter jurisdiction to adjudicate his 

claims. We disagree.

¶26 A statute of limitations generally begins to run “upon the 

happening of the last event necessary to complete the cause of 

action.” Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 20, 108 

P.3d 741 (citation and internal quotation marks omitted). Here, 

the district court concluded Stephenson’s claims arose out of 

incidents alleged to have occurred in 1981 and 2008, and the 

limitations periods thus began running in 1985, when 

Stephenson turned eighteen, or in 2008, when the last acts 

 

4. Because the defendants assert the one-year notice of claim 

period began running on all of Stephenson’s claims by at least 

2008, we refer to the provisions of the Governmental Immunity 

Act in effect in 2008, unless otherwise indicated. 
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necessary to complete the latter causes of action occurred. On 

appeal, Stephenson does not challenge these conclusions, but 

instead relies solely on assertions of tolling. Accordingly, unless 

the limitations periods were tolled, they began running in 1985

for the earlier claims and in 2008 for the later claims, and the 

one-year notice periods expired in 1986 and 2009, respectively. 

¶27 There are “two narrow settings in which a statute of 

limitations may be tolled until the discovery of facts forming the 

basis for the cause of action.” Id. ¶ 21 (citation and internal 

quotation marks omitted). The first setting involves application 

of a statutory discovery rule, when the relevant statute of 

limitations, by its own terms, mandates tolling of the limitations 

period until the factual basis for the claim has been discovered. 

See id. The second setting involves application of an equitable 

discovery rule in cases involving fraudulent concealment or 

exceptional circumstances. Id. ¶¶ 24–25. Fraudulent concealment 

occurs when the plaintiff “does not become aware of the cause of 

action because of the defendant’s concealment or misleading 

conduct,” and exceptional circumstances exist when “the case 

presents exceptional circumstances and the application of the 

general rule would be irrational or unjust, regardless of any 

showing that the defendant has prevented the discovery of the 

cause of action.” Id. ¶ 25 (citation and internal quotation marks 

omitted).

I. The Governmental Immunity Act’s

Internal Discovery Rule

¶28 Stephenson contends that the Governmental Immunity 

Act’s one-year notice period was equitably tolled until he filed 

his notice of claims in November 2013. He asserts that the 

“notice of claims provisions are just another kind of statute of 

limitations and are therefore subject to the same equitable tolling 

arguments that apply to the filing of the complaint.”
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¶29 But tolling under statutory and equitable discovery rules

is usually mutually exclusive; in other words, “an equitable 

discovery rule may operate to toll an otherwise fixed statute of 

limitations . . . only where a statute of limitations does not, by its 

own terms, already account for such circumstances—i.e., where 

a statute of limitations lacks a statutory discovery rule.” Russell 

Packard Dev., 2005 UT 14, ¶ 25. And statutory language added in 

2004 to the Governmental Immunity Act’s one-year notice 

requirement sets forth an internal discovery rule:

(b) The statute of limitations does not begin to run 

until a claimant knew, or with the exercise of 

reasonable diligence should have known:

(i) that the claimant had a claim against the 

governmental entity or its employee; and

(ii) the identity of the governmental entity or 

the name of the employee.

(c) The burden to prove the exercise of reasonable 

diligence is upon the claimant.

Utah Code Ann. § 63-30d-401(1)(b), (c) (LexisNexis 2004). This 

language was in effect in 2008, when the conduct giving rise to 

Stephenson’s later claims allegedly occurred. See id. § 63G-7-

401(1)(b), (c) (2008).

¶30 No Utah appellate court has previously addressed 

whether this internal discovery rule precludes a claimant’s 

assertion of equitable tolling otherwise available under “the 

statute of limitations that would apply if the claim were against 

a private person.” See id. § 63G-7-401(1)(a). The parties do not 

address this question, and Stephenson neither cites the internal 

discovery rule nor asserts it as a basis for tolling his claims. But if

the internal tolling provision applies, Stephenson’s assertion of 

equitable tolling is inapplicable to all of his claims for which the 
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20150693-CA 12 2017 UT App 149

last event necessary to complete the cause of action occurred in

2008.5 See Russell Packard Dev., 2005 UT 14, ¶ 25.

¶31 We need not decide Stephenson’s appeal on this basis, 

however, because even assuming equitable tolling is available 

for all of Stephenson’s claims, the evidence on which Stephenson 

relies is insufficient to support equitable tolling for any of his 

claims, whether based on conduct that allegedly occurred in the 

early 1980s or in 2008.6 We therefore turn to the record in 

support of Stephenson’s claim of equitable tolling.

II. Equitable Tolling of Stephenson’s Claims

¶32 Stephenson concedes that he did not produce in his 

opposition to summary judgment “evidence to create a genuine 

issue of material fact about whether” the statutes of limitations 

applicable to his claims “should be equitably tolled.” Yet 

Stephenson asserts he should nevertheless be permitted to 

pursue his claims under a theory of equitable tolling, for three 

reasons. First, Stephenson claims the defendants are not entitled 

 

5. Earlier versions of the Governmental Immunity Act, including 

the provisions in effect in 1985 and 1986, did not contain the 

internal discovery rule set forth above. See Utah Code Ann. § 63-

30-11 (Michie 1986); id. (Allen Smith Co. Supp. 1985); Cedar Prof’l 

Plaza, LC v. Cedar City Corp., 2006 UT App 36, ¶¶ 1 n.1, 12, 131 

P.3d 275 (noting that the pre-2004 provisions of the 

Governmental Immunity Act did not contain an internal 

discovery rule applicable to the one-year notice period).

6. Although we need not address this issue further, we note that 

if Stephenson had asserted a claim of statutory tolling with 

respect to his 2008 claims, it would fail for many of the same 

reasons set forth with regard to his claim of equitable tolling. See 

infra ¶¶ 38–49.
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to summary judgment because they did not establish he “could 

never prove that the statute[s] of limitations could be tolled.” 

Second, Stephenson contends Dr. Ranks’s opinions and 

declaration, submitted with his motion to alter or amend the 

judgment, create a genuine issue of material fact with regard to 

tolling. Third, Stephenson asserts he should have been given 

additional time to conduct discovery on the issue. We address 

each argument in turn.

A. The Parties’ Respective Burdens of Proof

¶33 Generally, the burden of establishing that a limitations 

period should be tolled rests upon the plaintiff alleging the 

underlying claim. See Tracey v. Blood, 3 P.2d 263, 266 (Utah 1931) 

(“Apparently all courts are agreed . . . that the burden [is] upon 

the plaintiff to plead and prove facts sufficient to toll the statute 

of limitations . . . .”). And when a party bears the burden of 

proof on a legal theory, and the opposing party moves for 

summary judgment and demonstrates the absence of any 

genuine issue of material fact, the burden shifts to the 

nonmoving party to “set forth specific facts showing that there is 

a genuine issue for trial.” Jones & Trevor Mktg., Inc. v. Lowry, 2012 

UT 39, ¶ 30, 284 P.3d 630 (citation and internal quotation marks 

omitted). Likewise, when a defendant moves for summary 

judgment prior to the close of the discovery period, the 

defendant “bears the burden of proving it is entitled to judgment 

as a matter of law.” Advanced Forming Techs., LLC v. Permacast, 

LLC, 2015 UT App 7, ¶ 8, 342 P.3d 808. A plaintiff may oppose 

the motion by demonstrating a genuine issue of material fact, 

showing the defendant is not entitled to summary judgment 

based on the undisputed facts, or seeking a continuance in 

accordance with Utah Rule of Civil Procedure 56. See id.

¶34 In this case, the defendants moved for summary 

judgment before the close of the discovery period. As required, 

they demonstrated entitlement to judgment as a matter of law by 
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establishing expiration of the statutory limitations periods, given 

the undisputed passage of time between the conduct alleged and 

the filing of Stephenson’s complaint. Because Stephenson did not 

allege any deficiency in this showing, the burden shifted to 

Stephenson to establish a genuine issue of material fact with 

regard to tolling, and if Stephenson required additional time for 

discovery, he had the option of seeking additional time in 

accordance with rule 56. See id.

¶35 Likewise, on appeal the defendants have demonstrated

Stephenson’s failure to provide notice of his claims within the 

one-year period set forth in the Governmental Immunity Act.

They request that summary judgment be affirmed on that basis, 

and because Stephenson does not assert any error in the 

defendants’ showing, he bears the burden of demonstrating a 

genuine issue of material fact as to tolling or establishing error in 

the district court’s denial of his request for a continuance to 

obtain further discovery bearing on this question.

7

¶36 Yet Stephenson misunderstands his obligation, 

erroneously contending that summary judgment was improper

because the defendants did not establish Stephenson “could 

never” make a successful case for equitable tolling. Stephenson 

relies on a discussion in Advanced Forming Technologies, LLC v. 

Permacast, LLC, 2015 UT App 7, 342 P.3d 808, which is 

inapplicable here because it addressed a situation in which a 

defendant moving for summary judgment prior to expiration of 

the discovery period “did not demonstrate its entitlement to 

 

7. On appeal, Stephenson has not requested additional time to 

address the notice-of-claim question; his only argument in that 

regard is that the district court erroneously denied his request 

for additional time to conduct discovery prior to ruling on the 

summary judgment motion. We address Stephenson’s argument 

accordingly.
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judgment as a matter of law.” See id. ¶ 15. And Advanced Forming 

Technologies sets out the burdens outlined above when, as here, a 

defendant moves for summary judgment prior to the close of the 

discovery period and demonstrates entitlement to judgment as a 

matter of law. Id. ¶¶ 8–15.

¶37 In this case, it is undisputed that the issues litigated in the 

district court summary judgment proceeding overlap in all 

material respects with the issues relevant on appeal to the noticeof-claim question. And Stephenson does not assert that anything 

other than the summary judgment standard applies for purposes 

of this inquiry.

8 Applying the summary judgment standards set 

forth above, the burden is on Stephenson to identify evidentiary 

support for his equitable tolling claim or to demonstrate why 

additional time should have been provided to procure it. See 

Utah R. Civ. P. 56; Advanced Forming Techs., 2015 UT App 7, ¶ 8. 

We therefore examine whether Stephenson submitted sufficient 

evidentiary support for his claim of equitable tolling and

whether the district court exceeded its discretion by denying 

Stephenson’s request for additional time to obtain it.

B. The Evidence in Support of Equitable Tolling

¶38 Stephenson points to only one source of evidence in 

support of his claim of equitable tolling—Dr. Ranks’s opinions 

and declaration, which were submitted with Stephenson’s 

 

8. Indeed, each of Stephenson’s arguments assumes application 

of the summary judgment framework—i.e., his assertion that the 

defendants are not entitled to summary judgment because they 

did not rule out every possible basis for equitable tolling; that 

the order granting summary judgment should have been altered 

because Dr. Ranks’s opinions and declaration raise genuine 

issues of material fact; and that the summary judgment ruling 

should have been postponed.
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motion to alter or amend the judgment under Utah Rule of Civil 

Procedure 59. According to the parties, this evidence may 

support entry of an amended judgment only if it is “newly 

discovered material evidence that could not, with reasonable 

diligence, have been discovered and produced at the trial.” See 

Utah R. Civ. P. 59(a)(4). But we need not reach this question 

because regardless of whether the evidence was “newly 

discovered” for purposes of rule 59(a)(4), it does not raise a 

genuine issue of material fact as to tolling.

¶39 Before a statute of limitations may be tolled under the 

equitable discovery rule, due to either exceptional circumstances 

or fraudulent concealment, “the plaintiff must make an initial 

showing that he did not know nor should have reasonably 

known the facts underlying the cause of action in time to 

reasonably comply with the limitations period.” McBroom v. 

Child, 2016 UT 38, ¶ 34, 392 P.3d 835 (citation and internal 

quotation marks omitted). Stephenson asserts he has made this 

initial showing and did “not know and could not reasonably 

have discovered the facts underlying the cause[s] of action in 

time to commence an action” within the one-year notice period. 

(Internal quotation marks omitted.) Yet the allegations in 

Stephenson’s complaint belie his claim.

¶40 “An admission of fact in a pleading is a judicial admission 

and is normally conclusive on the party making it.” Baldwin v. 

Vantage Corp., 676 P.2d 413, 415 (Utah 1984). In his complaint,

Stephenson alleged (1) that he “approached the Orem Police 

Department . . . with information regarding Elison’s abuse” in 

January 2008, (2) that he confronted Elison and obtained “what 

is effectively a[] [signed] admission” of sexual assault and an 

agreement that Elison would have “no further contact with 

minor children” in February 2008, and (3) that he, at around that 

same time, approached ASD “about Elison’s molestation and 

[Stephenson’s] concern no charges had . . . been filed.”
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Stephenson further alleges he then met with an ASD official and 

“recounted Elison’s improper advances” and “molestation.”

¶41 Stephenson’s assertion that he did not know and could 

not reasonably have discovered the facts underlying his claims 

prior to November 2013, when he filed his notice, rests on 

statements pulled from Dr. Ranks’s opinions and declaration, 

including statements that “Stephenson [was] unable to factually 

comprehend the circumstances of his abuses, and that he had 

been sexually abused, until the time this lawsuit was filed”; “[i]t 

is inaccurate to state that . . . Stephenson’s attempts to reach out 

to law enforcement officials and [ASD] officials in 2008 is 

conclusive evidence he . . . factually comprehended at that time 

he had been sexually abused”; and “Stephenson could not 

factually comprehend he had been sexually abused . . . until 

around the time this lawsuit was filed.” In Stephenson’s view, 

his claims “are [all] predicated on him realizing that he was 

sexually abused,” and Dr. Ranks’s statements that Stephenson 

did not “factually comprehend” the abuse therefore support 

application of the exceptional circumstances and fraudulent 

concealment doctrines to all of his claims.

¶42 Normally, however, no genuine issue of fact is created by 

opinions and statements submitted by a party that contradict the

party’s pleaded allegations. See Monarrez v. Utah Dep’t of Transp., 

2014 UT App 219, ¶ 45, 335 P.3d 913 (noting with approval the 

principle that “[i]n moving for summary judgment, a party may 

rely on the doctrine of judicial admission by utilizing allegations 

in the opposing party’s pleadings to eliminate triable issues of 

material fact” (citation and internal quotation marks omitted)), 

aff’d, 2016 UT 10, 368 P.3d 846; Ramos v. Khawli, 908 N.E.2d 495, 

509 (Ohio Ct. App. 2009) (rejecting the argument that an expert 

opinion created a genuine issue of material fact, in part because 

the “appellant’s own admissions contradict her expert’s opinion 

and admit that the standard of care was not breached and that 

she was not injured”); cf. Brinton v. IHC Hosps., Inc., 973 P.2d 956, 
Stephenson v. Elison

20150693-CA 18 2017 UT App 149

973 (Utah 1998) (concluding that statements in the claimant’s 

affidavit did not raise a genuine issue of material fact, where the 

claimant had not adequately explained the contradiction 

between allegations in his complaint and testimony under oath, 

and the statements in his later-submitted affidavit); Rutherford ex 

rel. Rutherford v. Talisker Canyons Fin. Co., 2014 UT App 190, ¶ 11 

n.6, 333 P.3d 1266 (rejecting an argument as “contradictory to the 

allegations contained in the [parties’] complaint,” noting that 

“[a]n admission of fact in a pleading . . . is normally conclusive 

on the party making it” (second alteration in original) (citation 

and internal quotation marks omitted)), cert. granted, 343 P.3d 

708 (Utah 2015).

¶43 And many of Dr. Ranks’s statements are directly contrary 

to Stephenson’s allegations, which Stephenson has made no 

request to amend or withdraw. For example, Dr. Ranks opines 

that, after the 1980s, “Stephenson was . . . prevented from telling 

authority figures further about his abuse . . . until this lawsuit 

was filed,” but Stephenson alleged that by 2008 he had 

(1) brought the conduct to the attention of police officers, 

(2) sought out and obtained a confession from the perpetrator as 

well as a commitment that the perpetrator would avoid contact 

with minor children, and (3) shared his concern with ASD that 

no further action had been taken.

¶44 Dr. Ranks’s remaining statements appear similarly 

irreconcilable with Stephenson’s allegations and therefore do not 

support his claims. But even if construed as consistent rather 

than contradictory, the statements would not create genuine 

issues of material fact as to tolling. Under the fraudulent 

circumstances exception, “plaintiffs with knowledge of 

underlying facts must reasonably investigate their claims” 

because the limitations period will run. Colosimo v. Roman 

Catholic Bishop of Salt Lake City, 2007 UT 25, ¶ 44, 156 P.3d 806. 

And with regard to exceptional circumstances, “Utah precedent 

evidences . . . reluctance to apply the discovery rule absent 
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complete repression of all memory of the abuse.” Id. ¶ 27. Given 

the many strides Stephenson allegedly undertook to address the 

conduct giving rise to his claims, the record does not support 

application of equitable tolling under either the fraudulent 

concealment or exceptional circumstances doctrines.

9

¶45 When a plaintiff has asked a police department to 

investigate and pursue criminal charges, has sought out and 

obtained from the alleged perpetrator a written confession and 

promise to abstain from contact with a vulnerable population, 

and otherwise has brought the conduct to the attention of 

persons in positions of authority, the plaintiff must, at a 

minimum, explain how application of the general limitations 

rule would be irrational or unjust, or demonstrate why he or she

lacked sufficient notice to investigate his or her potential legal 

claims. Here, Dr. Ranks’s broadly stated opinions do not contain

any such explanation, and Stephenson does not otherwise 

provide one. For example, when pressed in oral argument as to 

the meaning of Dr. Ranks’s statements that Stephenson was 

“unable to factually comprehend” the abuse, Stephenson was 

unable to provide any clarification of Dr. Ranks’s statements or 

to effectively explain why he could reach out to law enforcement 

 

9. In so holding, we reject Stephenson’s assertion that all claims 

of sexual abuse of a child involve exceptional circumstances 

“such that a court should eliminate” any relevant limitations 

periods. Despite Stephenson’s argument to the contrary, recent 

legislative changes regarding the limitations periods for claims 

alleging sexual abuse of a child, see Utah Code Ann. § 78B-2-

308(3)(a), (7) (LexisNexis Supp. 2016), do not provide this court 

with authority to overrule the Utah Supreme Court’s holding in 

Colosimo v. Roman Catholic Bishop of Salt Lake City, 2007 UT 25, 156 

P.3d 806, which refused to categorically eliminate the limitations 

periods applicable to such claims, see id. ¶¶ 27, 36.
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and ASD officials but could not seek legal assistance in 

investigating private claims.

¶46 Moreover, even assuming that “[o]nly in the past few 

years” had Stephenson “become cognizant to the full extent of 

damages caused by Elison’s sexual abuse and ASD’s and 

Neilsen’s complicit enabling,” as Stephenson alleged, full 

comprehension of damages stemming from injurious conduct is 

not required before the clock starts running on the limitations

period. See Colosimo, 2007 UT 25, ¶ 31 (“Because the [plaintiffs] 

do not allege that they repressed all knowledge of their abuse, 

they had knowledge of the operative facts giving rise to their 

claims. Their inability to connect the abuse with their injuries 

does not render them eligible for application of the exceptional 

circumstances version of the discovery rule.”).

¶47 Stephenson, however, suggests that a plaintiff cannot 

reasonably be expected to investigate legal claims unless 

notification of authority figures results in acknowledgment of 

the validity of his allegations and some meaningful response; 

otherwise, he asserts, the plaintiff may feel rebuffed and 

uncertain of his claims and therefore decline to pursue legal 

recourse until a later date. But the relevant standard is not the 

degree of confidence a plaintiff has in his or her claims; the 

question is whether the plaintiff knew or reasonably should have 

known the facts underlying the cause of action “in time to 

reasonably comply with the limitations period.” McBroom v. 

Child, 2016 UT 38, ¶ 34, 392 P.3d 835 (citation and internal 

quotation marks omitted).

¶48 Moreover, even if the denial of a plaintiff’s allegations 

could, in some circumstances, excuse the plaintiff’s delay in 

asserting his claims, those circumstances are not present here, as

Stephenson allegedly obtained “effectively a[] [signed] 

admission” of sexual assault from Elison in 2008. Thus, even if 

the police department and ASD “aggravat[ed] the ongoing . . . 
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trauma caused by” the alleged sexual abuse by failing to pursue 

or corroborate Stephenson’s allegations, as Dr. Ranks opines, the 

record contains no genuine issue of material fact as to whether 

Stephenson was nevertheless sufficiently aware of the facts 

underlying his claims prior to expiration of the latest one-year 

notice period in 2009.

¶49 Sexual assault and the alleged cover-up of sexual assault, 

particularly against minors by those occupying positions of 

authority and trust, are deplorable offenses. But the legislature 

has not excepted these types of claims from the Governmental 

Immunity Act’s one-year notice period, and the record 

demonstrates Stephenson had sufficient awareness of the 

underlying facts “to put [him] on inquiry notice of potential 

causes of action against the . . . defendants and to impose on 

[him] a duty to undertake reasonable inquiry as to the existence 

of [his] claims.” Colosimo v. Roman Catholic Bishop of Salt Lake City, 

2007 UT 25, ¶ 50, 156 P.3d 806.10

 

10. Stephenson asserts in his reply brief that his notice of claims 

is timely as to Elison, based on recent amendments extending the 

pertinent statute of limitations and the period of time for filing a 

complaint against a perpetrator of child sexual abuse. See Utah 

Code Ann. § 78B-2-308(3)(a), (7) (LexisNexis Supp. 2016). But his 

conclusory argument in that regard is inadequately briefed, as 

Stephenson has failed to address whether his argument 

regarding the statutory amendments may be raised for the first 

time on appeal in a reply brief and whether this court may apply 

amendments not in effect at the time of the district court’s 

dismissal of the case. Stephenson also has not substantively 

addressed the interplay between the one-year notice of claims 

provision and the extended statutory limitations and filing 

periods, but largely assumes that the latter would revive the 

former. Given the lack of supporting legal analysis and citation 

to and development of legal authority with respect to these 

(continued...)
Stephenson v. Elison

20150693-CA 22 2017 UT App 149

C. Stephenson’s Request for Additional Time for Discovery

¶50 In his final challenge on appeal, Stephenson asserts his 

time for discovery was improperly cut short because the 

defendants moved for summary judgment early in the discovery 

period, months before fact and expert discovery were set to be 

completed. In Stephenson’s view, “the issue central to the 

summary judgment motion—whether [he] was entitled to 

equitable tolling—was [a fact-intensive] issue that required 

expert testimony,” and when Stephenson “asked for additional 

time to produce an expert report, . . . the district court denied 

that motion.”

¶51 Our case law instructs that to provide an adequate 

opportunity for discovery, a district court should liberally grant 

additional time when requested in accordance with Utah Rule of 

Civil Procedure 56. Spring Gardens Inc. v. Security Title Ins. 

Agency of Utah Inc., 2016 UT App 113, ¶ 10, 374 P.3d 1073. 

However, district courts have no obligation to grant such 

motions if they are “‘dilatory or lacking in merit.’” Id. (quoting

Crossland Sav. v. Hatch, 877 P.2d 1241, 1243 (Utah 1994)). And 

under the circumstances present here, “the district court did not 

abuse its discretion in denying [Stephenson] additional time for 

discovery because additional discovery time would have been of 

 

(...continued)

issues, we do not address them. See Cheek v. Clay Bulloch Constr.

Inc., 2016 UT App 227, ¶¶ 30–33, 387 P.3d 611; Utah R. App. P. 

24(a)(9). Thus, the possible effect of the subsequent changes in 

the law on Stephenson’s claims or on the validity of any notice of 

claim he has already filed are questions beyond the scope of this 

appeal and must be addressed, if at all, in the event Stephenson 

attempts to reassert his claims in the context of the amended 

statute of limitations.
Stephenson v. Elison

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no benefit to [Stephenson] given [his] [judicial] admissions.” See

id. ¶ 13.

¶52 Moreover, despite Stephenson’s assertion to the contrary, 

he had sufficient time to obtain expert opinions and statements 

from Dr. Ranks during the proceedings below, but Dr. Ranks’s 

submissions were deemed insufficient by the district court, a 

determination we have upheld on appeal. And Stephenson has 

failed to identify how additional time or additional discovery 

would result in any substantive differences in those opinions or 

statements, much less differences that could lead to a different 

outcome. We therefore uphold the district court’s denial of 

Stephenson’s request for additional time for discovery.

CONCLUSION

¶53 Stephenson failed to file notice of his claims within one 

year as required by the Governmental Immunity Act, and 

Stephenson has not raised a genuine issue of material fact as to 

equitable tolling of the one-year period. In addition, the district 

court acted within the bounds of its discretion when it denied 

Stephenson’s request for additional time for discovery. We 

therefore dismiss Stephenson’s appeal, because Stephenson’s

failure to provide timely notice of his claims left the district court 

without subject matter jurisdiction to adjudicate them.