opinions/mds/cline011305.htm 18:16:03 GMT --> Cline v. Associated Clinical

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IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Earl L. Cline II,

Plaintiff and Appellant,

v.

Associated Clinical and Counseling Psychologists; Family Assessment, Consultation, and Treatment; and Natalie Malovich, Ph.D.; et al.,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040654-CA
 

F I L E D
(January 13, 2005)
 

2005 UT App 15

 

-----

Third District, Salt Lake Department

The Honorable William B. Bohling

Attorneys: Earl L. Cline, Salt Lake City, Appellant Pro Se

Stephen W. Owens, Salt Lake City, for Appellees

-----

Before Judges Billings, Bench, and Greenwood.

PER CURIAM:

    This case is before the court on Appellees' Suggestion of Mootness and Motion to Dismiss Appeal. In addition, Appellant Earl Cline filed a motion for summary reversal, and Appellees filed a cross-motion for summary affirmance. Because we conclude that the appeal is moot, we do not consider the summary disposition motions.

    Cline filed a complaint seeking relief against Appellee Dr. Natalie Malovich, the custody evaluator in his divorce proceedings, as well as her employer(s). Appellees moved to dismiss the complaint under the Utah Health Care Malpractice Act (UHCMA), which governs actions against psychologists. See Utah Code Ann. 78-14-3(12) (Supp. 2004). The UHCMA specifies conditions precedent to filing an action against a health care provider "relating to or arising out of health care rendered." Utah Code Ann. 78-14-3(14). A party who intends to file such an action must give a prospective defendant "notice of intent to commence an action" at least ninety days prior to filing the action. Utah Code Ann. 78-14-8 (2002). In addition, "[t]he party initiating a medical liability action shall file a request for prelitigation panel review with the [Division of Occupational and Professional Licensing] within 60 days after the service of a statutory notice of intent to commence action." Utah Code Ann.  78-14-12(2)(a) (2002). The prelitigation panel is "compulsory as a condition precedent to commencing litigation." Utah Code Ann. 78-14-12(1)(c).

    The district court dismissed Cline's complaint for failure to comply with the prelitigation requirements contained in the UHCMA, and Cline appealed. Appellees contend that the appeal is moot because Cline has since complied with the conditions precedent, as evidenced by the Division of Occupational and Professional Licensing's issuance of a certification of compliance, and he may refile his action. We agree. Cline wishes to dispute the application of the UHCMA to his case, and urges this court to exercise its discretion to consider a technically moot case if it presents significant issues of public interest. We decline to retain the case on that basis. Accordingly, we do not consider the parties' motions for summary disposition.

    Appellees correctly note that the dismissal of a case for failure to satisfy the prelitigation requirements of the UHCMA does not prevent application of the savings provision of Utah Code section 78-12-40, which provides that "if the plaintiff fails in [an] action or upon a cause of action otherwise than upon the merits, and the time limited either by law or contract for commencing the same shall have expired, the plaintiff . . . may commence a new action within one year after the . . . failure." Utah Code Ann. 78-12-40 (2002); see also McBride-Williams v. Huard, 2004 UT 21,17, 94 P.2d 175 (holding "error in failing to comply with the proper prelitigation procedures does not prevent them from starting anew under the savings provision").

    We dismiss the action as moot, without prejudice to Cline's pursuing a new action in the district court following his compliance with the prelitigation requirements of the UHCMA.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

Pamela T. Greenwood, Judge

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opinions/mds/cline011305.htm 18:16:03 GMT -->