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By Joseph G. Ballstaedt
801-365-1021
[email protected]

Every lawsuit in Utah generally must be filed with a court within a certain period of time known as the “statute of limitations.” If not, the lawsuit is probably barred forever, and the parties involved can move on knowing that the dispute likely won’t be litigated. In civil cases (non-criminal cases), the  statute of limitations is generally between six months and eight years, depending on the type of lawsuit.

What happens in Utah when a party files a lawsuit within the applicable statute of limitations, but later, after the statute of limitations has run or expired, the case is dismissed based on some type of technicality not related to the merits? Can that suing party bring the lawsuit again after resolving that issue or technicality, even after the statute of limitations has now run? Probably. A Utah law known as the “saving statute” states that if a lawsuit is timely filed but then ends without being resolved on its merits, that lawsuit can be refiled within a year.

Let me provide you an example. In Utah, all lawsuits involving written contracts have a six-year statute of limitations. So, if somebody breaches a contract on January 1, 2020, the other party to the contract has in most circumstances until January 1, 2026 (six years later) to file a lawsuit claiming breach of contract. Let’s suppose that, after a breach on January 1, 2020, the other party files a lawsuit on January 1, 2025, a year before the statute of limitations runs. Then, after two years of litigation, the lawsuit is dismissed because the judge determines that the party who filed the lawsuit did not begin the case property since he or she did not correctly serve the complaint on the other party. The lawsuit has to be refiled. At this time, around January 1, 2027, the original statute of limitations has run by about a year, so in these circumstances, filing the complaint would usually be too late. However, Utah’s saving statute provides the party claiming breach of contract gets another year to refile because the dismissed case wasn’t resolved on the merits but rather on what many be considered a technicality.

The text of the saving statute reads:

If any action is timely filed and the judgment for the plaintiff is reversed, or if the plaintiff fails in the action or upon a cause of action otherwise than upon the merits, and the time limited either by law or contract for commencing the action has expired, the plaintiff, or if he dies and the cause of action survives, his representatives, may commence a new action within one year after the reversal or failure.

The phrase “upon the merits” used in this statute generally means that the legal claims were decided based on the relevant facts and the law governing those facts, not because one party failed to serve another in the correct manner, as discussed above, or some other non-meritorious or procedural issue or technicality. But interestingly, even if a party files a lawsuit and then voluntarily dismisses the lawsuit, the saving statute permits a refiling because the case fails other than upon the merits, according to Utah courts.

Utah court cases have also explained that the saving statute only allows a party to refile a substantially similar lawsuit, and new parties can be added to a new lawsuit only if doing so would not prejudice the new parties. For example, if new parties added were doing business under the name of the party who was named and sued in the first complaint, adding these related parties to the second complaint is probably fine—they were likely involved in the first lawsuit and knew all about it.

Also, as long as a complaint is filed, the save statute applies, regardless of whether the party who filed the lawsuit actually serves the complaint. So, for instance, if a party files a lawsuit but the case is dismissed because the party does not serve the other party within 120 day (as required by Utah court rules), the party can refile the lawsuit within a year.

The saving statute does not allow a lawsuit to live forever. A party can only benefit from the saving statute once. So, if a case is dismissed for failure to serve the complaint or some other grounds not based on the merits, and if a new case is filed within a year, the complaint must be properly served that time—and cannot be dismissed on some non-meritorious grounds thereafter. If it is, the saving statute cannot to revive the case a second time.

Also interesting, the saving statute also applies to counterclaims—claims that are (or could be brought) by the other party in response to the original claims. Let’s suppose that when a complaint is filed, counterclaims exist and are not barred by the statute of limitations, but then the complaint is dismissed on non-meritorious grounds. Then, the original complaint is filed again within the one-year period allowed by the saving statute. Once the original complaint is refiled, the counterclaims are revived and can be refiled, even if the statute of limitations for the counterclaims has run at the time of the refiling.

If you have questions about the statute of limitations or Utah’s saving statute, I am happy to help.  I offer a free consultation. My direct dial is 801-365-1021, and you can e-mail me at [email protected].

joseph-g-ballstaedt

Joseph G. Ballstaedt
801.365.1021
[email protected]

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