Justices rule against Provo mine owner, say time ran out to challenge annexation

The Utah Supreme Court Tuesday upheld a lower court's ruling against a mine owner's challenge to a Provo annexation of his land, saying the claim was not filed within the required statute of limitation.

In a 5-0 ruling, the justices upheld a previous court ruling that found Provo resident Richard Davis, owner of a mining claim near Provo's Rock Canyon, cannot challenge a Provo annexation of his property because the action took place 20 years before he bought the property, well past the statute of limitation.

"We affirm the district court's holding that the catch-all four-year limitations period applies and that Mr. Davis' cause of action against Provo City should be dismissed for failure of timely action," Supreme Court Justice Ronald E. Nehring wrote in his opinion.

Davis' attorney, Michael Zundel, and Provo's attorney, Robert West, did not return requests for comment.

In 1978, Provo annexed a large tract of land near Provo's Rock Canyon, an action later referred to as the Heritage Mountain Annexation. In 1998, Davis and business partner Greg Sperry purchased a mining claim within the Heritage Mountain Annexation. They paid half the amount at closing and were expected to pay the rest by 1999. Sperry failed to pay, and Davis paid the full amount.

When Davis found out Sperry transferred his interest in the mine to Stephen Kapelow on April 5, 1999, Davis filed a complaint against the two individuals for intentional misrepresentation, wrongful conveyance of partnership property, wrongful dissolution of partnership and breach of contract. He later included claims against multiple individuals and entities, including Provo, claiming the "city illegally annexed his land in 1978."

Provo responded saying Utah Code section 10-2-422 barred Davis from challenging because the statute requires a resident in the annexed area to contest the annexation within one year. If that section did not apply, Provo attorneys argued another section, the catch-all four-year statute of limitation, still applied and barred Davis' claim.

Davis also argued his property couldn't be "conclusively presumed to have been validly annexed" because he never received a tax notice assessing city taxes on the property. The Utah State Tax Commission admitted to mistakenly treating Davis' land as being entirely within unincorporated Utah County, hence tax notices Davis received did not include assessments from Provo.

The Supreme Court unanimously upheld a 4th District Court dismissal of Davis' challenge because the statute of limitation had run out.

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E-mail: jdana@desnews.com

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