author: BILLINGS, Judge: ORME, Judge

text:
    2001 UT App 209
    James DISHINGER and Nancy Dishinger dba TCBY Yogurt, Plaintiffs, Appellants, and Cross-appellees, v. Jana POTTER dba Silver Queen Hotel, Defendant, Appellee, and Cross-appellant.
    No. 20000081-CA.
    Court of Appeals of Utah.
    June 28, 2001.
    Rehearing Denied July 16, 2001.

      Dwayne A. Vance and David B. Thompson, Park City, for Appellants.
    Robert M. Felton, Salt Lake City, for Ap-pellee.
    Before Judges BILLINGS, ORME, and THORNE.
   OPINION

BILLINGS, Judge:

¶ 1 Plaintiffs James and Nancy Dishinger dba TCBY Yogurt (the Dishingers) appeal the trial court's judgment finding them in unlawful detainer. Defendant Jana Potter dba Silver Queen Hotel (Potter) cross-appeals the trial court's refusal to instruct the jury on the meaning of "prevailing rate" and its failure to award her administrative, late, and attorney fees. We reverse and remand.

BACKGROUND

¶ 2 In May of 1990, Erik Ziskend entered into a commercial lease with Potter for premises located on Main Street in Park City, Utah. On May 31, 1994, Ziskend assigned the lease to the Dishingers. Potter consented to the assignment. The Dishingers operated a frozen yogurt shop on the premises.

¶ 3 The lease provided for continuous three year options after expiration of the initial three year lease term. Under the terms of the lease, the Dishingers, as tenants, were required to notify Potter in writing of their desire to exercise the option 120 days prior to the expiration of the current lease term. The lease specified that the rental rate for an option period would be "adjusted upward, but not less than the current Minimum Monthly Rent being paid, to the then prevailing rental rate of similar buildings in the Main Street area of Park City, Utah."

¶ 4 On February 1, 1996, the Dishingers notified Potter in writing of their desire to exercise the lease renewal option. Thereafter, the following correspondence took place. On April 4, 1996, Potter advised the Dishing, ers that the prevailing rental rate of similar buildings on Main Street in Park City was $30 per square foot and thus, pursuant to the lease, $30 per square foot ($2,425.00/month) would constitute the new base monthly rent. The Dishingers responded that, based on the appraisal they had performed, the prevailing rental rate of similar buildings was $19 per square foot ($1,535.83/month).

¶ 5 At the commencement of the July 1, 1996 renewal period, without an agreement as to what would constitute the base monthly rent, the Dishingers began paying rent in an amount reflecting their appraisal of $19 per square foot. They sent Potter a check for $1,976.92, clearly noting it was for "New Base Rent." On July 8, 1996, Potter sent the Dishingers a notice of default on the grounds that the Dishingers were $889.17 delinquent in their July rental payment. On July 13, 1996, Potter served the Dishingers with a notice to pay the remaining rent or quit,. On July 15, 1996, Potter negotiated the Dishing-er's July 1 rent check. On the first of every month, from July 1996 through June 1997, the Dishingers sent Potter a check for $2,137.11 reflecting $19 per square foot in base monthly rent. Potter negotiated each of those checks.

¶ 6 On August 8, 1996, the Dishingers filed a declaratory judgment action asking the trial court to interpret the lease provision regarding the monthly rental rate. Potter counter-claimed for breach of lease and unlawful detainer.

¶ 7 After a jury trial, the jury returned a special verdict answering a number of factual questions. In the special verdict the jury found there was a legitimate dispute as to the "then prevailing rental rate," that the Dishingers tendered payment to Potter in full satisfaction of the disputed amount based on their appraisal of $19, and that Potter accepted the rent payments after the July 13 notice to quit. The jury also found the "then prevailing rental rate" to be $25 per square foot, and as such, Potter was entitled to recover the balance of base rent, totaling $8,730.

¶ 8 The Dishingers filed a motion for entry of judgment based on the special verdict, arguing that the jury's special verdict established an accord and satisfaction, which fixed the base rental rate at $19 per square foot, and thus, they were current in monthly payments and Potter's unlawful detainer claim should be dismissed. The Dishingers also argued that a determination that they were in' unlawful detainer of the premises was precluded because Potter accepted rental payments after serving the notice to quit, thus waiving forfeiture of the lease.

¶ 9 The trial court, first Judge Brian, then Judge Hilder in an amended judgment, entered judgment for Potter. The trial court concluded that, based on the findings of the jury in its special verdict, it was "clear" that while Potter accepted payments after the notice to quit, the amount received "did not represent a full payment of base rent," and thus did not constitute an accord and satisfaction. Thus, the trial court concluded the Dishingers were in unlawful detainer and entered judgment in favor of Potter for $8,730, which was trebled to $26,190 pursuant to Utah Code Ann. § 78-86-10 (1996). This appeal followed.

¶ 10 On appeal, the Dishingers argue the trial court was precluded from determining they were in unlawful detainer because the jury's special verdict established an accord and satisfaction as a matter of law. Alternatively, the Dishingers argue that Potter affirmed the lease by accepting rent payments, thereby waiving forfeiture of the lease, and thus precluding a finding of unlawful detain-er.

¶ 11 Potter cross-appeals, arguing the trial court should have instructed the jury that the "then prevailing rental rate" meant market rate. Potter also argues the trial court erred by failing to award her administrative fees, late fees, and attorney fees as required by the lease.

ANALYSIS

I. Preliminary Issues

¶ 12 In addition to the claims raised in her cross-appeal, Potter asserts that the Dishing-ers failed to preserve their claims below, failed to provide a transeript of the proceedings and marshal the evidence, and cannot rely on the jury's special verdict because it was merely advisory. Before addressing the main substantive issues on appeal, we first address these threshold arguments.

A. Preservation of Claims

¶ 13 Potter first argues the Dish-ingers failed to preserve their claim of accord and satisfaction in accordance with Rule 24(a)(5)(A) of the Utah Rules of Appellate Procedure. Rule 24(a)(5)(A) provides that "Itlhe brief of the appellant shall contain ... citation to the record showing that the issue was preserved in the trial court." Utah R.App. P. 24(a)(5)(A). The Dishingers reference several places in the record to show that the issue of accord and satisfaction was preserved in the trial court. Thus, Potter's argument that the Dishingers did not preserve the issue of accord and satisfaction is without merit.

B. Marshaling the Evidence

¶ 14 Potter next argues the Dishing-ers needed to provide a transcript of the proceedings to allow meaningful review of the evidence, and have also failed to marshal the evidence. A transcript of the proceedings is not required because the Dishingers are relying on the jury's special verdict on appeal, not the evidence presented at trial. See, e.g., Pugh v. North Am. Warranty Servs., Inc., 2000 UT App 121, ¶ 11, 1 P.3d 570. Moreover, the marshaling requirement applies only when challenging findings of fact. See Moon v. Moon, 1999 UT App 12, ¶ 24, 973 P.2d 431. Clearly, the Dishingers are not challenging findings of fact. Rather, they are challenging the trial court's application of the law to the jury's special verdict findings and thus the Dishingers do not have the burden of marshaling the evidence.

C. Advisory Jury Verdict

¶ 15 Relying on Peirce v..Petrce, 2000 UT 7, 994 P.2d 193, Potter next argues that the jury's special verdict was merely advisory, and therefore the trial court was not bound by the jury's findings in the special verdict. Potter's reliance on Peirce is misplaced. In Peirce, the issue before the court was "whether the jury served in an advisory capacity or whether [the] case was tried by a jury as a matter of right." Id. at ¶ 12. However, the plaintiff in Peirce was seeking an equitable remedy. See id. "When a jury is used in an equity case, it acts in an advisory capacity," id. (quoting Romrell v. Zions First Nat'l Bank, 611 P.2d 392, 394 (Utah 1980) (quotation and citation omitted)), " 'unless both parties have clearly consented to accept a jury verdict" " Id. at ¶ 13 (quoting Romrell, 611 P.2d at 394); see also Utah R. Civ. P. 39%(c). Because the parties did not clearly consent to accept a jury verdict, and the record indicated that the trial court treated the jury as advisory, the court held that the jury served only in an advisory capacity and thus afforded no deference to its findings. See id. at ¶ 15.

¶ 16 In the instant case, we are not dealing with an action in equity. Both the Dishing-ers and Potter pursued legal claims, the Dishingers specifically demanded a jury trial on those claims, and at no time did the trial court inform the parties or the jury that the jury was merely advisory. Cf. Goldberg v. Jay Timmons & Assocs., 896 P.2d 1241, 1244 (Utah Ct.App.1995) (stating, "if the trial court had intended ... to use an advisory jury, it should have notified the parties before the trial began"). Where, as here, the case is tried to a jury as a matter of right, Rule 49(a) of the Utah Rules of Civil Procedure permits the trial court to "require a jury to return only a special verdict in the form of a special written finding upon each issue of fact." Utah R. Civ. P. 49(a). "The [trial] court then applies the law to the facts as found and renders a verdict." Brigham v. Moon Lake Elec. Ass'n, 24 Utah 2d 292, 298, 470 P.2d 393, 397 (1970) (Ellett, J., further opinion) (commenting on Rule 49(a)).

¶ 17 As Justice Ellett explained in Brigham:

The special verdict was devised to relieve the jury of attempting to apply the law in a complicated case to the facts in arriving at a verdict. Instructions to the jury are thus simplified, and the jurors may, therefore, concentrate upon the functions which belong to them, viz., to find the facts in the case.

Id. Thus, "Tin [the] case of a special verdict, the jury only finds the facts, and the court applies the law thereto and renders the ver-diet." Id. This is what occurred in the instant case. The trial court instructed the jury: "[It is your exclusive duty to deter-maine the facts in this case, and to consider and weigh the evidence for that purpose"; "You are the exclusive judges of the facts and the evidence." (Emphasis added.) The trial court then entered judgment, "Based upon the evidence and the special verdict." (Emphasis added.) Thus, the jury was not merely advisory. Rather, the jury found the facts as set forth in its special verdict and the trial court entered judgment applying the law to those facts.

II. Accord and Satisfaction

¶ 18 The Dishingers argue that an accord and satisfaction occurred prior to trial which set the rental rate at $19 per square foot thus precluding a finding of unlawful detainer. They claim the jury's special verdict answers require a legal determination of accord and satisfaction. Whether the special verdict established an accord and satisfaction is a question of law which we review for correctness without any deference to the trial court. See ProMax Dev. Corp. v. Raile, 2000 UT 4, ¶ 17, 998 P.2d 254.

A. Elements of Accord and Satisfaction

¶ 19 To establish an accord and satisfaction, three elements must be present: "(1) an unliquidated claim or a bona fide dispute over the amount due; (2) a payment offered as fall settlement of the entire dispute; and (3) an acceptance of the payment as full settlement of the dispute." Id. at ¶ 20 (citing Marton Remodeling v. Jensen, 706 P.2d 607, 609-10 (Utah 1985)).

1. Bona Fide Dispute Over Amount Due

¶ 20 To satisfy the first element, "There must be a good-faith disagreement over the amount due under the contract. The disagreement need not be well-founded, so long as it is in good faith." Estate Landscape & Snow Removal Specialists, Inc. v. Mountain States Tel. & Tel. Co., 844 P.2d 322, 326 (Utah 1992) (citing Golden Key Realty, Inc. v. Mantas, 699 P.2d 730, 733 (Utah 1985); Ashton v. Skeen, 85 Utah 489, 496, 39 P.2d 1073, 1076 (1935)). The jury clearly found that there was a good faith disagreement over the amount due under the lease. The jury was asked:

Considering all of the evidence in this case, do you find by a preponderance of the evidence that a legitimate dispute existed as to 'the "then prevailing rental rate of similar buildings in the Main Street area of Park City" at the time 'the [Dishingers] made monthly rental payments based on $19 per square foot as satisfaction in full?

To this question the jury answered, "Yes." Thus, the first element of accord and satisfaction was established by the jury's special verdict.

2. Payment Tendered in Full Satisfaction of Dispute

¶ 21 The jury found that the payments tendered by the Dishingers were made in full satisfaction of the disputed rent. The jury was asked: "Considering all the evidence in this case, do you find by a preponderance of the evidence that the [Dishingers] notified [Potter] that these payments were made in full satisfaction of the disputed rent amount?" The jury answered, "Yes." Thus, the second element of accord and satisfaction was established by the jury's special verdict.

8. Acceptance of Payment as Full Settlement of Dispute

¶ 22 In Estate Landscape, the Utah Supreme Court reasoned that the third element of accord and satisfaction may be satisfied by the creditor's subjective intent to discharge an obligation by assenting to the accord, or conduct which gives rise to a reasonable inference that acceptance of payment discharged the obligation. See Estate Landscape, 844 P.2d at 330.

¶ 23 In the instant case, the jury found that Potter accepted the monthly payments made by the Dishingers. The jury was asked: "Considering all of the evidence in this case, do you find by a preponderance of the evidence that [Potter] accepted the monthly rent payments made by the [Dish-ingers] which are calculated at a rate of $19 per square foot?" The jury answered, "Yes." However, the jury did not make a finding that Potter subjectively intended to assent to the accord. 'The fact that Potter counterclaimed for breach of the lease and unlawful detainer shows she did not subjectively intend to assent to the accord. Thus, to find an accord and satisfaction, we must determine whether Potter's conduct established the accord and satisfaction as a matter of law.

¶ 24 In Estate Landscape, the defendant sent the plaintiff a check for $8,613, and followed it with a letter stating that the check was "payment in full for satisfaction of contracted services. If you are not willing to accept that sum, ... in full satisfaction of the sums due, DO NOT negotiate the check, for upon your negotiation of that check, we will treat the matter as fully paid." Id. at 324-25 (emphasis omitted). The plaintiff filed suit to recover the $30,162.50 it thought it was owed by the defendant, then negotiated the $8,613 check, and amended its complaint to recover the difference. See id. at 325.

¶ 25 The trial court ruled that negotiation of the check did not constitute an accord and satisfaction. See id. This court affirmed, over Judge Jackson's dissent, reasoning that the defendant's letter was "entirely unilateral," and that the plaintiff's

signature on the check is not an assent to an accord not found on the face of the check as a restrictive endorsement, where the party to whom the accord is offered has expressly rejected the proposed accord, continued the dispute, and filed litigation to resolve it adversarially in court.

Estate Landscape & Snow Removal Specialists, Inc. v. Mountain States Tel. & Tel. Co., 793 P.2d 415, 419-20 (Utah Ct.App.1990) (footnote omitted), rev'd, 844 P.2d 322 (Utah 1992).

¶ 26 The Utah Supreme Court disagreed and reversed, holding, "Where, as here, the check is tendered under the condition that negotiation will constitute full settlement, mere negotiation of the check constitutes the accord, regardless of the payee's efforts or intent to negate the condition." Estate Landscape, 844 P.2d at 330. Thus, " Twlhat is said is overridden by what is done, and assent is imputed as an inference of law' " Id. (quoting Hudson v. Yonkers Fruit Co., 258 N.Y. 168, 179 N.E. 373, 374 (1932)); see also Marton Remodeling v. Jensen, 706 P.2d 607, 609 (Utah 1985) (holding negotiation of check with restrictive condition is an accord and satisfaction even though creditor wrote "not full payment" beneath condition prior to negotiation); Cove View Excavating & Constr. Co. v. Flynn, 758 P.2d 474, 478 (Utah Ct.App.1988) (finding an accord and satisfaction even though ereditor crossed out restrictive condition on check before negotiation).

¶ 27 In the instant case, the Dishinger's first check noted the amount thereof was for "New Base Rent." Therefore, because Potter negotiated the check, which was tendered by the Dishingers in full satisfaction of the disputed amount of the base monthly rent, the fact that Potter at the same time brought an action for breach of lease and unlawful de-tainer is of no legal consequence. The third and final element of accord and satisfaction was established by Potter's conduct.

B. Special Verdict

¶ 28 In its special verdict, the jury found: (1) "that a legitimate dispute existed as to the 'then prevailing rental rate of similar buildings in the Main Street area of Park City' at the time the [Dishingers] made monthly rental payments based on $19 per square foot as satisfaction in full;" (2) the Dishingers "notified [Potter] that [the} payments were made in full satisfaction of the disputed amount;" and (8) Potter "accepted the monthly rent payments made by the [Dishingers] ... at a rate of $19 per square foot."

¶ 29 However, the jury also found that the prevailing rental rate was $25 per square foot, and that Potter was entitled to recover the "balance of base rent" from the Dishing-ers, totaling $8,730. Based on these findings, the trial court entered judgment for Potter, concluding that no accord and satisfaction existed and that the Dishingers were in unlawful detainer because the amount Potter received and accepted each month was less than what the jury subsequently determined to be the rental rate.

¶ 30 Although it could be argued that the special verdiet supports inconsistent legal theories (accord and satisfaction and unlawful detainer), the inconsistency is not fatal. The jury was instructed to answer all factual questions on all legal theories presented in the special verdict. While the jury's findings support inconsistent legal claims, a court is not precluded, under Rule 49(a), from applying the law to those findings and entering judgment for a party on one theory, as a matter of law, which precludes judgment on another inconsistent legal theory. See Milligan v. Capitol Furniture Co., 8 Utah 2d 383, 387, 335 P.2d 619, 622 (1959) {holding inconsistent special verdict answers immaterial under Utah R. Civ. P. 49(a)); see also Tsudek v. Target Stores, Inc., 414 N.W.2d 466, 469-70 (Minn.Ct.App.1987) (finding inconsistent special verdict answers reconcilable where jury was simply answering all questions submitted based on the evidence). Thus, as was the case here, if the special verdict findings support, as a matter of law, an accord and satisfaction then there cannot be an unlawful detainer.

C. Effect of Lease Provision

¶ 31 Potter responds that even if the jury's special verdict findings support an accord and satisfaction, the lease itself precludes an accord and satisfaction. Potter relies on the "Waiver" provision of the lease which states:

The waiver by Landlord of any term, covenant or condition herein contained shall not be deemed to be a waiver of such terms, covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any preceding default by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay particular rent also accepted, regardless of Landlord's knowledge of such preceding default at the time of the acceptance of such rent.

(Emphasis added.) Potter asserts that under this lease provision, "acceptance of partial rent could not constitute an accord and satisfaction."

¶ 32 Though not perfectly drafted, the boilerplate language of this "Waiver" provision is not ambiguous. The relevant portion, emphasized above, provides that if the Dishing-ers default on any term, covenant, or condition of the lease, and thereafter tender a rental payment to Potter, and Potter accepts, by accepting, Potter has not waived the prior defaults. For example, if the Dishingers install exterior lighting as prohibited by the lease, the installation, if not cured within thirty days of notice, is a default. If, thereafter, the Dishingers send Potter a rent check which Potter accepts, Potter has not waived the Dishinger's default for the installation. However, if the Dishinger's default for failure to pay rent, and thereafter tender a rental payment to Potter, which Potter accepts, Potter thereby waives the Dishing er's default for failure to pay rent.

¶ 33 What the lease provision does not provide, is that acceptance of partial rent does not constitute an accord and satisfaction. In fact, the term "accord and satisfaction" is conspicuously absent from the face of the lease, and beyond the "Waiver" provision, Potter fails to point to any language in the lease that would support her strained construction. Additionally, and perhaps more importantly, Potter cannot claim that the initial check tendered by the Dishingers was "partial rent," when there was never an agreement as to what would actually be the rental rate. While hindsight suggests that Potter should have provided for such a situation in the lease, we cannot write such a provision into the lease for her. See Jones v. ERA Brokers Consol., 2000 UT 61, ¶ 18, 6 P.3d 1129; see also Rio Algom Corp. v. Jimco Ltd., 618 P.2d 497, 505 (Utah 1980); Provo City Corp. v. Nielson Scott Co., 603 P.2d 803, 806 (Utah 1979). Thus, Potter's argument that the lease prohibits an accord and satisfaction is not supported by the lease itself.

¶ 34 In sum, the jury's special verdict established as a matter of law an accord and satisfaction. 'The trial court erred in not entering a judgment on the rental rate for the option period in favor of the Dishingers. We therefore reverse the trial court's judgment of unlawful detainer and remand for the entry of a judgment for the Dishingers based on the legal theory of accord and satisfaction setting the rental rate at $19 per square foot.

III. Administrative, Late, and Attorney Fees

¶ 35 Potter argues that the lease provides that the Dishingers shall pay administrative, late, and attorney fees. Potter submitted her claims for administrative and late fees to the jury. In its special verdict, the jury found that, in addition to what the Dish-ingers had already paid to Potter, Potter was only entitled to the "Balance of base rent." Based on this finding, the trial court determined that Potter was not entitled to administrative and late fees. However, this was properly a legal not a factual determination. The lease is clear and unambiguous that Potter was entitled to administrative fees. The lease states in no uncertain terms that the tenant shall pay for all costs and fees associated with supervising and administering to the common areas.

¶ 36 The Dishingers respond that Potter's argument for administrative fees was not presented below. However, the trial court clearly ruled on the issue based on the jury's special verdict findings. Thus, Potter's claim for administrative fees was presented below. Therefore, we reverse and remand to the trial court for an award of Potter's administrative fees.

¶ 37 The lease further provides:

Tenant shall pay to Landlord a late charge of ten ($10.00) dollars per day until the amount due is paid in full. Tenant further agrees to pay any attorney's fees [sic] incurred by Landlord by reason of Tenant's failure to pay rent and/or other charges when due hereunder.

(Emphasis added.) Thus, Potter was only entitled to late fees and attorney fees under this provision if the Dishingers failed to pay rent. Because we conclude there was an accord and satisfaction, the Dishingers were current on their rent payments and therefore Potter was not entitled to late fees.

¶ 38 The trial court determined that Potter was not entitled to attorney fees because the lease provided that the "prevailing party shall be entitled to recover" its attorney fees, and while Potter prevailed on her counter-claim, the Dishingers prevailed on their claims for an accounting and credit for overcharges of common area expenses. Thus, the trial court determined neither party should be awarded attorney fees because both prevailed.

¶ 39 Because we conclude that there was an accord and satisfaction and thus no unlawful detainer, the "prevailing party" issue as to attorney fees should be reconsidered by the trial court on remand. Therefore, pursuant to the terms of the lease, Potter is entitled to her administrative fees, and we remand to have the trial court determine if either party should be awarded attorney fees as the "prevailing party" under the lease.

CONCLUSION

¶ 40 We conclude, based on the jury's special verdict, an accord and satisfaction occurred as a matter of law fixing the "then prevailing rental rate" for the option period of the lease at $19 per square foot in base monthly rent. Therefore, because the Dish-ingers were in lawful possession of the premises, we reverse the trial court's legal determination of unlawful detainer and its award of treble damages. We further conclude that under the terms of the lease, Potter was entitled to her administrative fees and remand for the trial court to determine if either party is entitled to attorney fees as the "prevailing party" under the lease.

¶ 41 I CONCUR: WILLIAM A. THORNE, Jr., Judge.

ORME, Judge

(dissenting):

¶ 42 I cannot agree there was an accord and satisfaction in this case. While there was a bona fide dispute over the new rental rate and the Dishingers may well have tendered their payments with the thought it was in full satisfaction of what was due, there is no finding that Potter accepted the payments in full satisfaction nor any basis in the evidence to conclude that she did so. On the contrary, the Dishingers and Potter had exchanged letters indicating very different views of what constituted the "then prevailing rental rate." Nothing suggests either side thereafter acceded to the view of the other or that they reached a compromise. On the contrary, within days of accepting the Dishingers' check, Potter sent the Dishingers a default notice stating what she believed the shortfall to be. A couple of weeks later, the Dishingers filed their declaratory judgment action acknowledging there was a dispute between the parties and asking the court to resolve it-not claiming there had been a dispute between the parties that had been resolved by accord and satisfaction and asking the court to enforce the accord.

¶ 43 Applicable law does not require anything inconsistent with the expectations of the parties, as shown by their conduct. The "New Base Rent" notation, apparently made in the "For " space on the front of the check, clearly does not satisfy the UCC's requirement that "the instrument or an accompanying written communication contain|{ ] a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim." Utah Code Ann. § 70A-8-311(2) (1997) (emphasis added). In addition, cases relied on by the majority are inappo-site. In both Marton Remodeling v. Jensen, 706 P.2d 607 (Utah 1985), and Cove View Excavating & Construction Co. v. Flynn, 758 P.2d 474 (Utah Ct.App.1988), unlike in this case, the checks evidencing the accord and satisfaction contained actual restrictive endorsement provisions. See Marton Remodeling, 706 P.2d at 608 ("Endorsement hereof constitutes full and final satisfaction of any and all claims. ..."); Cove View, 758 P.2d at 476 (check contained "prot. in full" language on front of check and this restrictive endorsement language on back of check: "payment in full for all labor and materials to 6/26/84"). In Estate Landscape & Snow Removal Specialists, Inc. v. Mountain States Telephone & Telegraph Co., 844 P.2d 322 (Utah 1992), a detailed letter made it clear that the check could be accepted only as full payment. See id. at 8324-25.

¶ 44 As a matter of law, the facts in this case do not establish an accord and satisfaction. The jury recognized this and went on to find that the prevailing rental rate was $25 per square foot and that the Dishingers owed this to Potter under their contract. Does this mean the Dishingers unlawfully detained the premises, subjecting them to treble damages? It does not. Potter, in her "notice to pay rent or quit," demanded payment of a sum well in excess of what she was entitled to contractually. The jury found the prevailing rate was $25, but she had demanded payment of $30. The invalid demand renders the notice completely ineffective to place the Dishingers in a state of unlawful detain-er.

¶ 45 When the dust settles in this case, the proper result emerges with reasonable clarity. The Dishingers did not owe as much as Potter thought they did, but they owed more than they thought they did. There was no accord and satisfaction, so they are liable for the shortage. On the other hand, Potter had no right to demand payment of an amount to which she was not entitled, so she may not have the lesser amount to which she was actually entitled trebled, nor is she entitled to any other relief specially available under the unlawful detainer statute. Clearly, then, there is no prevailing party here-each side won a little and lost a little-so neither side is entitled to an award of attorney fees.

¶ 46 On remand, I would simply have the trial court amend its judgment to reflect the foregoing.

      . From a review of the record it appears that the Dishingers were paying $18.48 per square foot in minimum monthly rent at the time they notified Potter of their desire to exercise the option.

      . The Dishingers subtracted $160.19 from the July 1, 1996 rental payment for remaining credits and premature Consumer Price Index increases occurring in 1994 and 1995.

      . The Dishinger's citations to the record reference the jury's special verdict; the Dishinger's motion for entry of judgment based®on special verdict; the Dishinger's memorandum in support of motion for relief from judgment; and the Dishinger's supplemental memorandum in support of motion for relief from judgment. In all these instances the issue of accord and satisfaction was raised in the trial court.

      . We note the issue of accord and satisfaction was not raised in the pleadings. However, Rule 15(b) of the Utah Rules of Civil Procedure provides that issues not raised in the pleadings may be tried by express or implied consent. See Utah R. Civ. P. 15(b). "If an issue is fully tried,, a court may decide the issue and deem the pleadings amended even if the issue was not originally pleaded." Shinkoskey v. Shinkoskey, 2001 UT App 44, ¶ 6 n. 2, 19 P.3d 1005 (citing Fisher v. Fisher, 907 P.2d 1172, 1176 (Utah Ct.App.1995) (citation omitted)). "Whether the pleadings may be deemed amended depends on whether the opposing party had a fair opportunity to [prepare and meet the issue]." Id. (citing Colman v. Colman, 743 P.2d 782, 785 (Utah Ct.App.1987)). It must be evident from the record that the issue has been tried. See id. (citing Fisher, 907 P.2d at 1176).
      A review of the record reveals that evidence regarding the existence of an accord and satisfaction was presented at trial, and the jury was instructed on and made findings of fact that would support an accord and satisfaction. Additionally, the Dishingers argued accord and satisfaction in their motion for entry of judgment based on special verdict, which Potter had the opportunity to rebut, and the trial court entered judgment finding there was no accord and satisfaction. Thus, because Potter had the opportunity to prepare and meet the issue, we conclude that the issue of an accord and satisfaction was tried by implication.

      . Although neither party has addressed this issue in their briefs, we note at the outset that the option provision in the lease is most likely unenforceable in Utah. It is a well-recognized principle that, "A condition precedent to the enforcement of any contract is that there be a meeting of the minds of the parties, which must be spelled out, either expressly or implicitly, with sufficient definiteness to be enforced." Pingree v. Continental Group of Utah, Inc., 558 P.2d 1317, 1321 (Utah 1976) (emphasis added) (citation omitted). In Pingree, the Utah Supreme Court stated,
      "a provision for the extension or renewal of a lease must specify the time the lease is to extend and the rate to be paid with such a degree of certainty and definiteness that nothing is left to future determination. If it falls short of this requirement, it is not enforceable."
      Id. at 1321 (quoting Slayter v. Pasley, 199 Or. 616, 264 P.2d 444, 446 (1953).
      In the instant case, the lease provided that the rental rate for the renewal period would be "the then prevailing rental rate of similar buildings in the Main Street area of Park City." On July 1, 1996, the commencement of the renewal period, the parties had yet to agree on what constituted "the then prevailing rental rate of similar buildings in the Main Street area of Park City." Both parties had communicated to the other a vastly different rate and interpretation, and the Dish-ingers filed a declaratory judgment action asking the trial court to interpret the provision. Thus, it cannot be said that the rate provided for in the option provision of the lease possesses the certainty and definiteness required to be enforced. In sum, there was no meeting of the minds, and as a result, no agreement. Therefore, the lease terminated by its own terms as of July 1, 1996. However, because we conclude that an accord and satisfaction occurred, the unenforceability of the option provision does not affect our analysis.

      . In response, Potter attempts to rely on language from Tates, Inc. v. Little America Refining Co., 535 P.2d 1228 (Utah 1975), wherein our supreme court stated, "Ordinarily, the payment of part of a debt does not discharge it.... The reason for this is that in making the part payment, the debtor is doing nothing more than he is legally obligated to do." Id. at 1229. This general statement is true, to the extent that there is no "dispute or uncertainty as to the amount due." Id. at 1229-30. In the instant case it is well established that there is a dispute as to the amount due.

      . Because we conclude there was an accord and satisfaction and thereby reverse the trial court's legal conclusion that the Dishingers were in unlawful detainer, we do not address the Dishing-er's alternative argument of waiver and Potter's cross-appeal regarding the definition of the term "prevailing rate."

      . Specifically, the lease states that the tenant shall pay
      All costs to supervise and administer said common areas, used in common by the tenants or occupants of the building. [Slaid costs shall include such fees as may be paid to a third party in connection with same and shall in any event include a fee to Landlord to supervise and administer same in an amount equal to ten (10%) of the total costs of (i) above.

      . Potter does not argue she was entitled to attorney fees under this provision.


source: Caselaw Access Project

author: BENCH, Judge: THORNE, Judge

license: Public Domain

text:
    2001 UT App 257
    STICHTING MAYFLOWER MOUNTAIN FONDS; Stichting Mayflower Recreational Fonds; and Jordan Investors, Inc., Plaintiffs and Appellants, v. JORDANELLE SPECIAL SERVICE DISTRICT, a special service district of Wasatch County, State of Utah, Defendant and Appellee.
    No. 990910-CA.
    Court of Appeals of Utah.
    Sept. 7, 2001.
    Rehearing Denied Jan. 28, 2002.
    E. Craig Smay, Salt Lake City, for Appellants.
    Mark R. Gaylord and Craig H. Howe, Ballard, Spahr, Andrews & Ingersoll, Salt Lake City, for Appellee.
    Before Judges BENCH, BILLINGS, and THORNE.
   OPINION

BENCH, Judge:

¶ 1 Plaintiffs (collectively "Investors") appeal the trial court's order dismissing their action because a proper summons had not been served within the thirty-day time period allowed by Utah Code Ann. § 17A-8-229 (1999). We affirm.

BACKGROUND

¶ 2 Investors are property owners within the boundaries of Defendant Jordanelle Special Improvement District (Jordanelle). In 1999, Jordanelle passed an ordinance levying an assessment against certain properties within its district, including property owned by Investors, to pay for sewage system improvements. The effective date of the ordinance was February 3, 1999. On February 25, 1999, Investors filed a complaint in district court challenging the assessment. On the same day, Investors served a summons (first summons) and copy of the complaint on Jordanelle.

¶ 3 After being served with the first summons, Jordanelle filed a Motion to Quash Summons and Dismiss Action. Jordanelle argued that the first summons should be quashed because it failed "to state either that the complaint is on file with the court or that the complaint will be filed with the court within ten days of service." Utah R. Civ. P. 4(c)(1). Jordanelle also argued that if the court quashed the first summons, it should also dismiss the action because Investors' failure to serve a valid summons within thirty days of the ordinance's effective date rendered the matter incontestable under section 17A-83-229.

¶ 4 Investors responded by arguing that the first summons should not be quashed because it complied with Form 2 of the Utah Rules of Civil Procedure and because inclusion of the assigned case number on the face of the summons put Jordanelle on notice that an action had been commenced. Investors also argued that the action should not be dismissed because section 17A-3-229 "simply establishes a limitation period for commencement of the action," and does not "alter" the Utah Rules of Civil Procedure with respect to the time limits for serving a summons.

¶ 5 In addition to defending the validity of the first summons, Investors served Jorda-nelle with another summons (second summons) on March 30, 1999. In its reply memorandum on its motion, Jordanelle asked the court to quash the second summons because Jordanelle's copy of the summons was not signed. At oral argument, Investors argued that the second summons was proper because the copy of the summons attached to the sheriffs return of service was signed. After hearing argument on the validity of the first and second summonses, Judge Ray Harding, Sr. quashed both and directed Investors to re-serve Jordanelle in accordance with the Utah Rules of Civil Procedure.

¶ 16 Immediately following the hearing, Investors served Jordanelle with a third summons on April 28, 1999. While disputing the validity of the third summons, Jordanelle responded by renewing its Motion to Dismiss Action With Prejudice on the ground that section 17A-3-229 divested the court of authority to hear the case because a proper summons had hot been 'served within thirty days of the ordinance's effective date. Prior to a hearing on the motion, Investors served a fourth summons on May 26, 1999, which Jordanelle concedes was sufficient but not timely. The Motion to Dismiss was thereafter argued to Judge Lynn Davis, who dismissed the case pursuant to the provisions of section 17A-3-229. This appeal followed. |

ISSUES AND STANDARDS OF REVIEW

¶ 7 We must consider whether Judge Davis properly dismissed Investors' complaint under Rule 12(b)(6) of the Utah Rules of Civil Procedure. This presents a question of law that we review for correctness. See Larson v. Park City Mun. Corp., 955 P.2d 343, 345 (Utah 1998). In reviewing Judge Davis's dismissal of the action, we must review his interpretation of section 17A-8-229. Issues of statutory interpretation are questions of law that we review for correctness. See State v. Fixel, 945 P.2d 149, 151 (Utah Ct.App.1997). Furthermore, review of the dismissal also requires us to review Judge Harding's decision to quash the first summons. Whether service of process is proper presents a question of law that we review for correctness. See Bonneville Billing v. Whatley, 949 P.2d 768, 771 (Utah Ct.App.1997).

ANALYSIS

¶ 8 This case is governed by section 17A, 3-229, which requires that an action challenging an assessment or proceeding in a special improvement district "must be commenced and summons must be served ... not later than 30 days after the effective date of the ordinance." Id. § 17A-3-229(2) (emphasis added). In accordance with established rules of statutory construction, we rely only on the plain language of section 17A-3-229 unless the statutory language is ambiguous. See O'Keefe v. Utah State Ret. Bd., 956 P.2d 279, 281 (Utah 1998). We find the statutory language to be unambiguous, and neither party argues otherwise. Investors concede in their brief on appeal that the "proper construction of the statute appears to be that it requires filing of the complaint and service of a summons together within thirty (30) days after the ordinance." We agree. The plain language of the statute requires both an action be commenced and a summons be served within thirty days of the ordinanece's effective date. The effective date of the ordinance challenged here is February 3, 1999. Investors commenced an action within thirty days by filing a complaint with the district court on February 25, 1999. Investors also served the first summons the same day. Although timely served, we must decide whether the first summons was valid.

¶ 9 Utah currently allows two alternatives for commencing an action. First, a party may commence an action by filing a complaint with the court. See Utah R. Civ. P. S(a)(1). Alternatively, a party may com-menee an action by serving a summons together with a copy of an unfiled complaint, which complaint must be filed within ten days after service of the summons. See Utah R. Civ. P. 8(a)(2), 4(c)(2). To notify the party being served "the precise manner in which the action is commenced[,]" Wasatch Livestock Loan Co. v. District Court, 86 Utah 422, 423, 46 P.2d 399, 399 (1935), Rule 4 of the Utah Rules of Civil Procedure requires that a summons "shall state either that the complaint is on file with the court or that the complaint will be filed with the court within ten days of service." Utah R. Civ. P. 4(c)(1) (emphasis added).

¶ 10 Despite the unqualified requirements of Rule 4(c)(1), Investors argue that section 17A-3-229 effectively eliminates the option of commencing an action by service of a summons and a copy of the unfiled complaint, thereby making it unnecessary to indicate on the summons how the action was commenced. Jordanelle contends this issue was not preserved, but our review of the record indicates that Investors did preserve the issue by raising it before the trial court. See Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1045 (Utah 1983) ("For a question to be considered on appeal, the record must clearly show that it was timely presented to the trial court in a manner sufficient to obtain a ruling thereon.. ..").

¶ 11 Although preserved, Investors' argument fails for two reasons. First, application of section 17A-3-229 does not eliminate the option of commencing an action by service of a summons. A party challenging an ordinance like this one has ample time to serve a summons and file a complaint ten days later, and still be within the thirty-day time period allowed by the statute. Because the plain language of section 17A-8-229 does not eliminate either Rule 3 alternative for commencing an action, a plaintiff must provide the party being served with notice of how the action was commenced.

¶ 12 Second, regardless of the practical necessity for indicating how the action was commenced, the plain language of section 17A-8-229 does not provide for a special summons that alters the Rule 4 requirements. A brief survey of the Utah Code shows that the legislature knows how to change the Rule 4 requirements for a summons if it so desires. See, eg., Utah Code Ann. § 107-70 (§upp.2000) (establishing summons for alleged corporate violation of city ordinance); Utah Code Ann. § 78-4-4 (1989) (establishing summons for water rights action). Without an explicit change by the legislature, the plain language of section 17A-3-229 must be interpreted as requiring a regular summons that complies with Rule 4. See Berrett v. Purser & Edwards, 876 P.2d 367, 370 (Utah 1994) ("A cardinal rule of statutory construction is that courts are not to infer substantive terms into the text that are not already there.").

¶ 13 Investors' first summons indisputably did not contain the required statement indicating that the complaint had been filed with the court. See Utah R. Civ. P. 4(c)(1). Instead of following the requirements of Rule 4, Investors apparently followed Form 2. See Utah R. Civ. P.App. of Forms. Form 2, however, does not contain the required statement indicating either that a complaint is on file or will be filed. See Utah R. Civ. P. 4(c)(1). Thus, Investors were not justified in relying upon Form 2, which is "intended for illustration only." Utah R. Civ, P.App. of Forms (Introductory Statement).

¶ 14 The omission of the mandatory statement required by Rule 4 rendered the first summons "fatally defective." Wasatch Livestock Loan Co., 46 P.2d at 399 (interpreting earlier procedural statute that mirrors Rule 4(c)(1)); see also Locke v. Peterson, 3 Utah 2d 415, 285 P.2d 1111, 1113 (1955); Farmers' Banking Co. v. Bullen, 62 Utah 1, 217 P. 969, 971 (1923). Therefore, Judge Harding properly quashed the first summons.

¶ 15 After quashing the first summons on May 11, 1999, Judge Harding ruled that Investors could serve a new summons under the 120 day provision of Rule 4(b). Judge Harding did not, however, address the fact that the thirty-day time period allowed by section 17A-3-229 expired on March 5, 1999. This statute was the focus of the proceedings before Judge Davis. .

¶ 16 Section 17A-3-229 limits a court's authority over the matter as follows:

(2) Any action provided for in Subsection (1) must be commenced and- summons must be served ... not later than 30 days after the effective date of the ordinance levying assessments in the special improvement district. ...
(3) After the expiration of the 80-day period provided in this section:
(a) the special improvement bonds issued or to be issued against the district and the assessments levied in the district shall become incontestable as to all persons who have not commenced the action provided for in this section; and
(b) no swit to enjoin the issuance or payment of the bonds, the levy, collection, or enforcement of the assessment, or in any other manner attacking or questioning the legality of the bonds or assessments may be instituted in this state, and no court shall have authority to inquire into these matters.

Id. § 17A-8-229(2) to (8) (emphasis added). Jordanelle contends that the final clause of subsection (8)(b), "and no court shall have authority to inquire into these matters," precludes the trial court from inquiring into the matter unless the action has been commenced and a proper summons served within the thirty days. Id. § 17A-8-2298)(b). When read in conjunction with the introductory phrase of subsection (8), "[a]fter the expiration of the 30-day period provided in this section," the last clause of subsection (8)(b) appears to support Jordanelle's argument. Id. § 17A-3-229(8)(b).

¶ 17 However, under established rules of statutory construction, "[the plain language of a statute is to be read as a whole, and its provisions interpreted in harmony with other provisions in the same statute." Lyon v. Burton, 2000 UT 19, ¶ 17, 5 P.3d 616. When read in context of the rest of section 17A-3-229, the last clause of subsection (8)(b) leaves the trial court with some limited authority. The plain language of subsection (8) only requires a party to "commence" or "institute" an action. Utah Code.Ann. § 174, 3-229(8)(a) to (b). Interpreting subsection (3) as cutting off all authority even though an action has been timely commenced would go too far because it would render most of the language of subsection (8) superfluous. See State v. Hunt, 906 P.2d 311, 312 (Utah 1995) ("[Alny interpretation which renders parts or words in a statute inoperative or superfluous is to be avoided." (Quotations and citation omitted.)). Therefore, onee a party has timely commenced an action, the trial court retains some measure of authority over the matter.

¶ 18 The extent of retained authority, however, is limited by the requirements of subsection (2). Nothing in subsection (8) eliminates the subsection (2) requirement that a summons be served within the allowed thirty days. Accordingly, if an action has been commenced and a summons served within thirty days, section 17A-3-229 gives a trial court the limited authority to consider a motion to amend a defective summons under Rule 4G) of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 4G). If the trial court grants a motion to amend, the date of the amended summons relates back to' the date of the timely served but defective summons, thereby satisfying the timely summons requirement of subsection (2). See Meyers v. Interwest Corp., 632 P.2d 879, 881-82 (Utah 1981) (holding that summons may be amended even after statute of limitations has expired, and the date of the amended summons relates back to the date of the initial summons). .

¶ 19 Investors commenced an action by filing a complaint within the thirty days allowed by the statute. Although defective, the first summons was also timely served. Therefore, Judge Harding had authority to consider a motion to amend the defective first summons. Investors, however, failed to file a motion to amend even though they were clearly on notice that such a motion may be necessary. In its memorandum in support of its Motion to Quash Summons and Dismiss Action, Jordanelle argued that if the court were to quash the first summons, the action should be dismissed because it would be impossible for Investors to serve a proper summons within the thirty days allowed by section 17A-3-229(2). Investors could have easily responded with a motion to amend, but chose instead to rely upon the validity of the first summons.

¶ 20 As a result, the only motion argued to Judge Harding was Jordanelle's motion to quash the summons. Once Judge Harding quashed the first summons, as he had to do under controlling case law, Investors were left with only untimely served summonses. Without a timely served summons in existence, the requirements of section 17A-3-229(2) could not be met, and Judge Davis had no choice but to dismiss the action.

CONCLUSION

¶ 21 Although timely, Investors' first summons was fatally defective because it did not comply with Rule 4(c)(1) by stating whether a complaint was filed or would be filed within ten days. Although the trial court retained the authority to allow an amendment of the first summons, Investors did not request the court to do so. Therefore, Judge Harding properly quashed the first summons. After the first summons was quashed, the thirty-day requirement of section 17A-8-229(2) could not be satisfied. Therefore, Judge Davis properly dismissed the action.

1 22 Accordingly, we affirm.

1 23 I CONCUR: JUDITH M. BILLINGS, Judge.

THORNE, Judge

(dissenting in the result):

¶ 24 I write separately to dissent not from the principles outlined by the majority, nor their application to this case, but because I believe that a threshold matter should be resolved before these principles are addressed. The question is whether Jordanelle waived the right to further object to defects in the service of process after representing to the trial court that no prejudice would result to Stichting if the court were to quash the summons?

¶ 25 I would answer this question in the affirmative. Judicial estoppel is a court ere-ated doctrine that "focuses on the relationship between [a] litigant and the judicial system." 28 Am.Jur.2d Estoppel and Waiver § 85 (2000). "This doctrine prevents parties from 'playing "fast and loose" with the court or blowing "hot and cold" during the course of litigation.'" Roxas v. Marcos, 89 Hawai'i 91, 969 P.2d 1209, 1242 (1998) (citation omitted). Further, judicial estoppel "seeks to prevent a litigant from asserting a position [that is] inconsistent, conflicts with, or is contrary to one that [he orl she has previously asserted in the same or in a previous proceeding." 28 Am.Jur.2d Estoppel and Waiver § 74; see also Salt Lake City v. Silver Fork Pipeline Corp., 913 P.2d 731, 734 (Utah 1996) ("'[A] person may not, to the prejudice of another person deny any position taken in a prior judicial proceeding between the same person ... involving the same subject-matter, if such prior position was successfully maintained'" (Citation omitted.)).

¶ 26 Jordanelle, in its written motion, initially asked the court to quash the service and dismiss the case. However, during the subsequent motion hearing, Jordanelle represented to the trial court that,

The rights and duties of Mr. Smay and his client [are] to properly serve the summons and comply with the rule. The law is that if they don't do that it's to be rendered fatal and defective.
It doesn't mean that Mr. Smay can't re[-]serve the summons.
We're not saying that Mr. Smay's claims still won't be heard. They may be heard, but he has to follow procedure.
If he wants, he can come out and serve Jordanelle once again. He still is even within the 120 days. Nothing has been harmed by it, but we ought to be entitled to, and he ought to be required to follow the rules.

¶ 27 Through this representation, Jorda-nelle's attorney, either knowingly or mistakenly, lulled the trial judge into viewing the matter as a minor procedural wrinkle that could be resolved with a simple instruction to re-serve. This representation is, I believe, the equivalent of a waiver of all procedural defects regarding the service of process in this case. After such a representation has been made, a trial court should be entitled to rely upon counsel's representation and resolve what was represented to be a minor procedural matter by quashing service and instructing Stichting to re-serve the process, as agreed by counsel on the record.

¶ 28 Had Jordanelle's attorney instead, clearly represented to the court that granting the motion to quash would be determinative, the trial court would have had a reason to treat the matter differently. Instead of resolving the matter quickly, upon what is best termed an agreement by counsel to reserve the complaint, the trial court might well have inquired into the substance of the issue, including asking whether the problem could have been remedied by a motion to amend the service, or whether Jordanelle waived any procedural defects. The court would also have had the opportunity to consider other arguments that might have been raised by opposing counsel. However, in reliance upon Jordanelle's representation, the trial court ordered the summons quashed and instructed Stichting to serve a properly drafted summons upon Jordanelle.

¶ 29 Then, in the following round of motions, Jordanelle adopted a position wholly inconsistent with its prior position, arguing that, as a result of the summons being quashed, Stichting had failed to timely serve the summons and was now barred. Jorda-nelle's adoption of these contrary positions is clearly inapposite and constitutes Jordanelle playing " 'fast and loose' with the court." Marcos, 969 P.2d at 1242.

¶ 30 I believe that it is inadvisable for this court to countenance Jordanelle's misleading behavior. I also believe that our decision may have untoward consequences impacting the future utilization of judicial resources. Following this decision, trial judges may become reluctant to rely upon trial counsel's representations. Instead, trial courts may be forced to serutinize every representation of counsel for any possible unforeseen consequence, regardless of assurances to the contrary made by counsel, thereby unnecessarily expending both judicial and litigant resources searching for hidden consequences to virtually every action in court. This consequence can be avoided if we simply require counsel to either stand behind their representations to the court, or, in the event of a mistake, notify opposing counsel and the court so that the matter might be revisited.

¶ 31 For these reasons, I would conclude that Jordanelle waived any objection to the procedural defect contained in Stichting's summons, and reverse Judge Davis's dismissal with prejudice.

      . The record reflects that Investors believe Judge Harding quashed only the first summons. However, the plain language of Judge Harding's order quashed multiple "summonses" and not just one summons. This plain language interpretation is supported by the fact that Judge Harding directed Investors to serve a new summons after hearing arguments on the validity of both the first and second summonses.

      . Although Judge Harding also quashed the second summons, analysis of the second, third, and fourth summonses is unnecessary given our interpretation of Utah Code Ann. § 17A-3-229 (1999).

      . As pointed out by the dissent, Jordanelle agreed that Investors could re-serve the summons under the provisions of Rule 4. Despite the position taken by our dissenting colleague, the parties have not raised the issues of waiver or judicial estoppel.

      . As suggested by the majority opinion.

      . Given the workload of district judges, it would be very unusual for a trial judge to permit argument about a procedural matter that is easily remedied. Knowing the propensity of most trial judges to want to spend time on substantive disagreements between counsel, and not become mired in technical irregularities, opposing counsel may have been unwilling to force the issue when opposing counsel has represented in open court that the matter is both minor and inconsequential.

      . I view with some interest the fact that Jorda-nelle argued to Judge Harding, Sr. that no prejudice would result from quashing the summons, and then argued to Judge Lynn Davis, who did not have knowledge of Judge Harding's intent, that because the summons had been quashed, Stichting failed to serve the summons within the statutory period; therefore, Stichting's complaint should be dismissed with prejudice.


author: DAVIS, Judge.

text:
    2002 UT App 73
    A.K. & R. WHIPPLE PLUMBING AND HEATING, Plaintiff and Appellee, v. Thomas D. GUY; and Aspen Construction, a Utah corporation, Defendants and Appellants.
    No. 20001009-CA.
    Court of Appeals of Utah.
    March 14, 2002.
    Rehearing Denied May 6, 2002.

      Joseph M. Chambers, Logan, for Appellants.
    Steven B. Wall, Salt Lake City, for Appel-lee.
    Before Judges BENCH, DAVIS, and ORME.
   OPINION

DAVIS, Judge.

¶ 1 Aspen Construction (Aspen) appeals from the final judgment (on remand from the Utah Court of Appeals) of the Third District Court denying AK. & R. Whipple Plumbing & Heating's (Whipple) claim for foreclosure of its $30,647.20 mechanies' lien claim, entering a net judgment against Whipple in the amount of $527.00, and declining to award Aspen attorney fees.

BACKGROUND

¶ 2 The initial appeal and the subsequent remand involved three separate lien foreclosure matters that were consolidated into one action for trial. The trial court ruled in favor of Whipple on the other two foreclosure matters, determined the lien amounts ($631.00 for the Dianne Quinn lien and $1,666.00 for the Tom Guy Poolhouse lien), found Whipple to be the "successful party" with respect to those liens, determined reasonable attorney fees related to those lien foreclosure matters, and entered orders of foreclosure respecting those two parcels of property.

¶ 3 On March 18, 1999, we remanded this matter to the trial court for disposition consistent with our opinion stating:

The Utah mechanies' lien statute provides "in any action brought to enforce any lien under this chapter the successful party shall be entitled to recover [a] reasonable attorneys' fee, to be fixed by the court, which shall be taxed as costs in the action." Utah Code Ann. § 88-1-18 (1997). In this case ... the trial court ... went on to award Whipple the value of the work performed on Aspen's property. Based in part on this finding, the trial court conelud-ed that Whipple was the prevailing party and entitled to an award of attorney fees. However, this conclusion may be erroneous in light of our determination that section 58-55-604 precludes Whipple from recovering for its HVAC work. Based upon our review of the record, it appears the HVAC claim was the single most important issue in this case and Aspen, having fully prevailed on the HVAC claim in this appeal, may now be entitled to prevailing party status under section 38-1-18. If on remand the trial court determines Aspen is the prevailing party under section 38-1-18, then Aspen must be given the opportunity to present evidence regarding attorney fees incurred in pursuing its claim. We therefore remand this issue to the trial court for a redetermination of the attorney fees award consistent with this opinion and the entry of findings necessary to support the revised award.

A.K. & R. Whipple Plumbing & Heating v. Aspen Constr, 1999 UT App 87,¶ 31, 977 P.2d 518 (Whipple I) (footnote omitted). On remand, the trial court conferenced with counsel and set deadlines to submit memo-randa on the issues we identified.

¶ 4 A hearing was held on November 10, 1999, at which time arguments were heard and evidence presented, by way of affidavit, as to the reasonable attorney fees incurred by the parties. At the time of the hearing, Whipple's attorney argued that he could not allocate fees, but after the hearing an affidavit supporting Whipple's claim for attorney fees was submitted.

¶ 5 On January 20, 2000, the trial court again found Whipple to be the successful party with respect to the mechanics' lien claim on the Diane Quinn property as well as the Tom Guy Poolhouse property, and awarded fees to Whipple in connection with those two lien foreclosure matters. The trial court denied Whipple's claim for foreclosure of the $30,647.20 mechanies' lien claim filed against Aspen for the Thayne's Canyon property because Whipple was not licensed to perform HVAC work. After calculating an offset for the HVAC work against Whipple's total recovery, the court entered a net money judgment in favor of Aspen and against Whipple in the amount of $527.00. The court also ruled that the outcome was essentially a "draw" and concluded neither party should be awarded its fees because: 1) Aspen had barely prevailed in the lien foreclosure action involving the Thayne's Canyon property; 2) Aspen "prevailed on an essentially legal issue;" and 3) Aspen "should have allocated attorney fees [between] the mechanies['] lien claim of [Whipple] and the time expended litigating the Licensure issues but has failed to do so."

¶ 6 Aspen appeals the trial court's failure to award it attorney fees incurred in suceess-fully defending against the lien foreclosure aspect of the proceeding. No cross appeal was filed.

ISSUES AND STANDARD OF REVIEW

¶ 7 The issue before us is the scope and meaning of "successful party" in Utah Code Ann. § 88-1-18 (1997). "Whether attorney fees are recoverable in an action is a question of law [that] we review for correctness." Whipple I, 1999 UT App at ¶ 11. "Matters of statutory construction are questions of law that are reviewed for correctness." Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997).

¶ 8 Courts generally review a trial judge's decision on the amount of attorney fees for abuse of discretion. See, e.g., Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988). In most decisions dealing with fee awards, "appellate deference is owed to the trial judge who actually presided over the proceeding and has first-hand familiarity with the litigation" Utah Dep't of Soc. Servs. v. Adams, 806 P.2d 1193, 1197 (Utah Ct.App.1991).

ANALYSIS

¶ 9 The Utah mechanics' lien statute provides: "in any action brought to en-foree any lien under this chapter the sue-cessful party shall be entitled to recover a reasonable attorneys' fee, to be fixed by the court, which shall be taxed as costs in the action." Utah Code Ann. § 88-1-18 (1997). A successful party includes, but is not limited to, one who successfully enforces or defends against a lien action. See Reeves v. Steinfeldt, 915 P.2d 1073, 1079 (Utah Ct.App.1996); Palombi v. D & C Builders, 22 Utah 2d 297, 452 P.2d 325, 327-28 (1969).

¶ 10 Aspen argues that the terms "successful party" and "prevailing party," as used in the statute and Utah case law do not have the same meaning and that success "is determined solely by whether or not the party asserting the right to enforce the lien was successful."

¶ 11 The terms "prevailing party" and successful party" are often used synonymously. See Cobabe v. Crawford, 780 P.2d 834, 835 n. 1 (Utah Ct.App.1989). Black's Law Dictionary defines the term "prevailing party" as: "A party in whose favor a judgment is rendered, regardless of the amount of damages awarded (in certain cases, the court will award attorney[] fees to the prevailing party). Also termed successful party." Black's Law Dictionary 1145 (7th ed.1999). Black's defines a "successful party" as follows: "See prevailing party." Id. Perhaps the most compelling example of synonymous usage is our decision in Whipple I, where, referring to the "successful party" language of section 38-1-18, we consistently substituted the words "prevailing party" in our analysis. Whipple I, 1999 UT App at ¶¶ 31, 40; see also Reeves, 915 P.2d at 1079 (holding a successful party includes one who successfully enforces or defends against a lien action); J.V. Hatch Constr., Inc. v. Kampros, 971 P.2d 8, 15 (Utah Ct.App.1998) ("[A] lien claimant's prima facie evidence establishing its right to attorney fees is met by showing that it is the prevailing party in the mechanies]"] lien cause of action.").

¶ 12 Further, our courts have addressed methodologies for determining which party or parties, perhaps among multiple parties or claims, occupy prevailing party status in various contexts. See, e.g., Reeves, 915 P.2d at 1079; Mountain States Broad. Co. v. Neale, 783 P.2d 551 (Utah Ct.App.1989). Indeed, "[clourts have, in extraordinary situations, declined to award attorney fees to a prevailing party in spite of an enforceable contractual provision." Crawford, 780 P.2d at 836 n. 3. Finally, application of our "prevailing party" jurisprudence to section 38-1-18 does not detract from its objective. Under the circumstances presented here, we see no reason why the terms "successful party" and "prevailing party" should not be used synonymously when determining entitlement to attorney fees under section 38-1-18.

¶ 13 In so ruling, we do not suggest that whether a claim is ultimately determined to be enforceable under the provisions of seetion 38-1-18 is not a factor to be considered in determining which party or parties prevail or are successful.

¶ 14 In Mountain States, both parties challenged the trial court's award granting both sides their attorney fees. This court, upon review, determined that even though plaintiff had obtained an offset in its favor, defendant was clearly the prevailing party. The court then noted that:

Typically, determining the "prevailing party" for purposes of awarding fees and costs is quite simple. Plaintiff sues defendant for money damages; if plaintiff is awarded a judgment, plaintiff has prevailed, and if defendant successfully defends and avoids an adverse judgment, defendant has prevailed. However, this simple analysis cannot be employed here because both plaintiff and defendant obtained some monetary relief against the other. Our review of the relevant case law convinees us that under the provision at issue, there can be only one prevailing party even though both plaintiff and defendant are awarded money damages on claims arising from the same transaction.

Mountain States, 783 P.2d at 555-56 (footnotes omitted).

¶ 15 In Occidental/Nebraska Fed. Sav. Bank v. Mehr, 791 P.2d 217 (Utah Ct.App.1990), this court noted that the Mountain States court had rejected a "blanket adoption of the 'net judgment' rule except as a good starting point in making determinations of which party prevailed." Id. at 221. The Occidental court also noted that Mountain States recognized "'the need for a flexible and reasoned approach to deciding in particular cases who actually is the prevailing party'" Occidental, 791 P.2d at 221. (citation omitted).

¶ 16 The plaintiffs in Occidental claimed a balance due of over $600,000.00 resulting from a trustee sale. See id. The defendants asserted that the sale was valid but stipulated to a $7,300.00, deficiency notwithstanding the sale. See id. As a result, plaintiffs obtained a judgment of approximately $7,300.00 and argued that they should therefore be deemed the prevailing party and thus be entitled to attorney fees. Defendants argued that they should be the prevailing party because they had successfully defended against plaintiffs claim for $600,000.00, and the court agreed. See id. at 222. Using a "flexible and reasoned approach" the court determined that, regardless of having prevailed on this issue, obtaining a judgment for a small fraction of the amount sought was not enough to warrant a recovery of attorney fees. Id.

¶ 17 In the case at hand, the trial court applied this line of reasoning and made its determination based upon the following calculations:

The [c]ourt now turns to the Thayne's canyon property. As to the contract claims only, the [clourt at trial awarded plaintiff $32,646.00, which included the following:
1. Water and sewer laterals from curb to house $ 3,200.00
2. Plumbing ($14,158.00 less $2,000.00 for offset) $12,158.00
3. Gas line $ 1,015.00
4. Backhoe $ 100.00
5. Water and sewer laterals from the street to curb $7,000.00
6. HVAC $12,265.00 contract price less $8,092.00 to finish $ 9,173.00
TOTAL: $32,646.00
AMOUNT PAID BY DEFENDANTS: - $17,000.00
Offset for damages on deficient work - $ 7,000.00
TOTAL: $ 8,646.00
Less contract price per Court of Appeals - 9,178.00
GRAND TOTAL: . (6 527.00)
Under a strict application of the "Net ° Recovery Rule" defendant would be the prevailing party on the Thayne's canyon property.

¶ 18 The facts and cireumstances surrounding a determination of prevailing party status vary widely. Because of those variances, we believe it, entirely appropriate, when adequately supported by the facts, to conclude, as the trial court did here, that there is no prevailing party.

¶ 19 This case, like Occidental, dealt with sums far in excess of Aspen's recovery of only $527.00. A key part of the flexible approach to deciding who actually is the prevailing party is common sense. This includes looking at the amounts actually sought and then balancing them proportionally with what was recovered. See Stichting Mayflower v. Newpark Res., 917 F.2d 1239, 1248 n. 9 (10th Cir.1990) ("[W]e think the district court should attempt to weigh the relative success of the parties['] .:. claims if it can find a reasoned basis for doing so.").

¶ 20 Regarding the Thayne's Canyon Property, the facts are undisputed. Whipple sought roughly $13,000.00 (allowing for the $17,000.00 already paid), and Aspen was claiming $25,000.00 in damages for negligence by Whipple. The court determined that "where the net recovery is only $527.00, . this is essentially a 'draw,"" in effect, determining there was no prevailing party. In making this determination the court looked to the language in Occidental, and noted that "[clourts in our state have acknowledged that the 'net recovery rule' is essentially a starting point and need not be applied strictly under all circumstances." 791 P.2d at 221. In addition, the trial court weighed the relative success of the parties' claims, reasoning: 1) Aspen had barely prevailed in the lien foreclosure action involving the Thayne's Canyon property; 2) Aspen "prevailed on an essentially legal issue;" and 3) Aspen "should have allocated attorney fees [between] the mechanies['] lien claim of [Whipple] and the time expended litigating the Licensure issues but has failed to do so."

CONCLUSION

¶ 21 We hold that, for the purpose of obtaining entitlement to attorney fees under the provisions of section 38-1-18, the term "successful party" therein is synonymous with the term "prevailing party." Accordingly, the trial court correctly applied "prevailing party" analysis to the undisputed facts of this case and appropriately determined that there was no "prevailing party." Therefore, we affirm the trial court's determination that neither party was entitled to an award of attorney fees on the Thayne's Canyon claim.

122 WE CONCUR: RUSSELL W. BENCH, Judge, and GREGORY K. ORME, Judge.

      . A detailed summary of the underlying facts in this case is set forth in A.K. & R. Whipple Plumbing & Heating v. Aspen Constr., 1999 UT App 87, 977 P.2d 518 (Whipple I).

      . The three lien foreclosure actions, which were consolidated for purposes of trial, are referenced herein as: (1) the Dianne Quinn lien; (2) the Tom Guy Poolhouse lien; and (3) the Thayne's Canyon property lien.


author: JACKSON, Presiding Judge:

text:
    2002 UT App 131
    SECURITY INVESTMENT LTD., a Utah limited partnership; William K. Olson, individually; and Bill Olson Investment Ltd., a Utah limited partnership by William K. Olson, general partner, Plaintiffs and Appellants, v. Allyson BROWN, Clerk of the Second Judicial District Court, Farmington, Utah; State of Utah, by and through its Treasurer, William T. Alter; Administrative Office of the Courts, by and through its Administrator, Dan Becker; and State of Utah, by and through any officer or agency receiving interest on funds deposited in courts, Defendants and Appellees.
    No. 20010679-CA.
    Court of Appeals of Utah.
    April 25, 2002.

      George K, Fadel, Bountiful, for Appellants.
    Mark L. Shurtleff, Attorney General, Nancy L. Kemp, Assistant Attorney General, and Brent M. Johnson, Administrative Office of the Courts, Salt Lake City, for Appellees.
    Before JACKSON, P.J., and ORME, and THORNE, JJ.
   OPINION

JACKSON, Presiding Judge:

T1 William K. Olson, Bill Olson Investment Ltd. (collectively, Olson), and Security Investment Ltd. (Security), filed suit against three state employees (State Employees) because Security and Olsen (collectively, Landowners) were not paid interest on funds deposited into trust accounts prior to occupancy in eminent domain proceedings against two parcels of land. The district court dismissed Landowners' complaint on State Employees' Motion to Dismiss under Rule 12(b)(6) of the Utah Rules of Civil Procedure. Landowners appeal the district court's dismissal of their complaint. We affirm.

BACKGROUND

[ 2 When reviewing a dismissal under Rule 12(b)(6) of the Utah Rules of Civil Procedure, we recite the facts as set forth by the plaintiff, and draw all reasonable inferences "from those facts in the light most favorable to the plaintiff." Hall v. Department of Corr., 2001 UT 34, ¶ 2, 24 P.3d 958.

¶ 3 The Utah Department of Transportation (UDOT) named Landowners and several other entities as defendants in eminent domain actions against two properties in Woods Cross, Utah. UDOT filed a motion for occupancy, and, pursuant to Utah Code Ann. § 78-34-9 (Supp.1999), deposited funds (the Deposited Funds) with the Clerk of the Court (the Clerk). They deposited amounts of $139,300 and $290,600 in May and August 1997, respectively, as security to compensate those with property interests in the land. The Deposited Funds were held in a trust account by the State, and neither UDOT nor any of the named defendants requested the Deposited Funds be placed in an unrestricted, interest-bearing account. The last of the named defendants, other than Landowners, disclaimed interest in the land in April 1999, thus permitting Landowners to collect their just compensation. Court orders in April and July 1999, instructed the Administrative Office of the Courts (the AOC) to pay $292,-350 to Security "as just compensation herein," and $189,300 to Olson "for the interests in real property." The orders specifically stated that acceptance of the awards did not prejudice "any action which [Landowners] may take with respect to the determination of [their] entitlement to any interest on money deposited with the Clerk."

¶ 4 The Clerk paid the court-ordered awards to Landowners, but not amounts accrued as interest on the Deposited Funds. The Clerk acted under the direction of the AOC and stated that the Deposited Funds were held in a restricted account pursuant to Rule 3-407(8)(F) of the Utah Code of Judicial Administration. Further, the AOC told Landowners that it would not pay out any interest on the Deposited Funds without a court order. Landowners filed a motion in the condemnation action to compel payment of interest on the Deposited Funds, but the court denied Landowners' claim against UDOT. Landowners appealed the district court's denial to the Utah Supreme Court, which affirmed the district court's decision "since UDOT was no longer a part of the action once it deposited the money with the court." Utah Dep't of Transp. v. Security Invest. Ltd., 2000 UT 97, ¶ 1, 17 P.3d 587. However, the supreme court also stated, "we decline to address defendants' argument that the clerk of the court, and/or any other persons in control of the [Deposited Funds] or any interest earned thereon, should pay such interest to defendants, as such persons are not parties to this appeal." Id.

¶ 5 Landowners then filed the complaint in the instant action, alleging that the State Employees "and any other persons in control of the [Deposited Funds] and the interest thereon, are defendants named herein," and that these defendants "owe to [Landowners] all interest earned on money deposited in said eminent domain proceedings." Landowners also alleged that State Employees violated their civil rights by unlawfully taking property, namely, the interest on the Deposited Funds, without due process of law. Accordingly, Landowners demanded payment of the interest on the Deposited Funds, interest on the interest, and attorney fees under 42 U.8.C.A. § 1988 (West 2001).

¶ 6 State Employees filed a motion to dismiss Landowners' complaint under rule 12(b)(6) for "failure to state a claim upon which relief can be granted." Utah R. Civ. P. 12(b)(6). The district court entered its detailed 'judgment on August 6, 2001, concluding that Landowners were not entitled to the relief they sought, and ruled, inter alia, as follows:

3. [Landowners] did not perfect a property right in the UDOT interest funds at issue. Having no property right, there was no unconstitutional taking of plaintiffs' property, and therefore no violation of [Landowners] constitutional rights.
6. The Court's jurisdiction was not properly invoked pursuant to the Utah Governmental Immunity Act.

Landowners now appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Landowners appeal the district court's dismissal of their complaint" 'Because the propriety of a 12(b)(6) dismissal is a question of law, we give the trial court's ruling no deference and review it under a correctness standard."" Hall v. Department of Corr., 2001 UT 34, ¶ 2, 24 P.3d 958 (quoting Prows v. State, 822 P.2d 764, 766 (Utah 1991)). We accept the allegations in the complaint as true, and draw all reasonable inferences in the light most favorable to the Landowners. See id.

¶ 8 Landowners challenge the district court's ruling that "jurisdiction was not properly invoked pursuant to the Utah Governmental Immunity Act." Whether the district court erred in concluding it did not have jurisdiction presents a question of law, which we review for correctness. See Wheeler v. McPherson, 2002 UT 16, ¶ 9, 40 P.3d 632.

ANALYSIS

¶ 9 Landowners argue that the district court erred in concluding they did not properly invoke its jurisdiction. They assert that the notice requirement of the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -88 (1997), does not apply here because the provisions of the Utah Constitution Article I, Section 22, are self-executing. State Employees argue that Landowners were required to give notice to the state agency as required by the Governmental Immunity Act. We first analyze the subject matter of Landowners' complaint, then we address governmental immunity.

A. Condemnation Action

¶ 10 UDOT filed its condemnation action in 1997, and the trial court ordered payment of just compensation on the two parcels of land in April and July 1999, but refused to order payment of the interest accrued on the Deposited Funds. Landowners appealed the court's refusal to award interest on the Deposited Funds. The Utah Supreme Court affirmed the trial court's decision, declining, however, to make any decision directly affecting State Employees because they were not named in the action. Landowners filed a new suit, this time naming State Employees, and claim to be seeking compensation for the State's "taking" of Landowners' property interest in the interest acerued on the Deposited Funds. Further, Landowners argue that governmental immunity was waived under Utah Code Ann. § 63-30-10.5 (1997) because this case is a continuation of eminent domain proceedings, and that this case is thus excepted from the notice requirement of the Governmental Immunity Act. Landowners misconstrue the law.

¶ 11 Landowners have a property right to the interest on the value of their property under Article I, Section 22 of the Utah Constitution. See Utah Const. art. I, see. 22 ("Private property shall not be taken or damaged for public use without just compensation."); Utah Code Ann. § 78-34-9 (1996) (stating that "rights of just compensation for the land so taken [by condemnation] . shall vest in the parties thereto" when a motion for occupancy is granted). However, Landowners do not have any right to the interest accrued on the funds deposited when a motion to occupy is filed. See Utah Code Ann. § 78-34-9. Funds deposited with a motion to occupy are "for the purposes of the motion only," and the amount deposited is "not admissible in evidence on final hearing" to determine just compensation. Id. The just compensation that property owners are entitled to includes

interest at the rate of 8% per annum on the amount finally awarded as the value of the property and damages, from the date of taking actual possession thereof by the plaintiff or order of cccupaney, which ever is earlier, to the date of judgment; but interest shall not be allowed on so much thereof as shall have been paid into court.

Id. (emphasis added). Thus, as the district court concluded, Landowners have no property interest in the interest accrued on the Deposited Funds. Further, this case does not involve a claim under Article I, Section 22 of the Utah Constitution and section 78-34-9 where "immunity from suit of all governmental entities is waived for the recovery of compensation from the governmental entity when the governmental entity has taken or damaged private property for public uses without just compensation," Utah Code Ann. § 63-30-10.5(1), or a claim which is excepted from the notice requirement of the Governmental Immunity Act. Accordingly, this action is a new proceeding, which must comply fully with the Governmental Immunity Act. See Hall v. Department of Corr., 2001 UT 34, ¶¶ 22-23, 24 P.3d 958.

B. Governmental Immunity

¶ 12 Landowners new suit must comply with the Governmental Immunity Act to properly invoke the jurisdiction of the court. See id. For Landowners to have properly invoke the district court's jurisdiction, prior to filing their complaint they should have filed a notice of claim with the attorney general and the state agency against which Landowners intended to bring the claim. See Utah Code Ann. §§ 68-30-11 to -12, -15 (1997). Landowners filed this action on December 14, 2000, and filed a notice of claim on February 7, 2001. Thus, they did not comply with the notice requirement.

¶ 13 "We have consistently required strict compliance with the requirements of the Governmental Immunity Act." Rushton v. Salt Lake County, 1999 UT 36, ¶ 19, 977 P.2d 1201. Further, "the Governmental Immunity Act's notice of claim requirement is not subject to exception, even if the governmental entity at issue has effective notice of the claim." Hall, 2001 UT 34 at ¶ 25, 24 P.3d 958. Failure to strictly comply with the filing requirement "deprives the court of subject matter jurisdiction." Rushton at ¶ 18. Thus, as the district court correctly concluded, its "jurisdiction was not properly invoked pursuant to the Utah Governmental, Immunity Act." Accordingly, we affirm the district court's dismissal.

CONCLUSION

¶ 14 We first conclude that Landowners have no property right in the interest on the Deposited Funds. We next conclude that these new proceedings must comply with the Governmental Immunity Act. Landowners did not comply with the notice requirement of the Governmental Immunity Act, accordingly, the district court properly dismissed their complaint for lack of subject matter jurisdiction.

( 15 We affirm.

116 I CONCUR: WILLIAM A. THORNE JR., Judge.

17 I CONCUR, EXCEPT THAT AS TO SECTION A, I CONCUR ONLY IN THE RESULT: GREGORY K. ORME, Judge.

      . We note that although this award to Security was higher than the amount deposited by UDOT for the corresponding property, this result is not outside of what is contemplated by statute. Prior to the 1998 amendments, the plaintiff in a condemnation action had to deposit an amount equal to at least seventy-five percent of its initial appraisal of the value of the property. See Utah Code Ann. § 78-34-9 (1996); cf. Utah Code Ann. § 78-34-9(3)(a) (2001) (requiring plaintiff in condemnation action to deposit sum equal to appraised value of property). The final award includes the adjudged value of the property plus damages and eight per cent interest per annum from the time of occupancy. Id.

      . Landowners do not challenge determinative rulings on their federal claims; thus, we do not discuss them. ,

      . Because we find the jurisdictional issue determinative, we do not reach Landowners' arguments regarding interest earned on property values in takings cases, immunity, interpretation of judicial council rules, or involuntary trustee duties.

      . Even if Landowners could successfully argue there was an implied contract to pay the interest on the Deposited Funds, the implied contract would not act as a waiver of the notice requirement of the Governmental Immunity Act because State Employees were acting within the scope of their employment. See Utah Code Ann. § 63-30-5 (1997); Nielson v. Gurley, 888 P.2d 130, 134 (Utah Ct.App.1994).


author: GREENWOOD, Judge.

text:
    2002 UT App 134
    STATE of Utah, Plaintiff and Appellee, v. David HITTLE, Defendant and Appellant.
    No. 20000712-CA.
    Court of Appeals of Utah.
    April 25, 2002.

      Edward R. Montgomery, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Kris:C. Leonard, and Eric D. Petersen, Salt Lake City, for Appel-lee.
    Before Judges DAVIS, GREENWOOD, and THORNE.
   OPINION

GREENWOOD, Judge.

¶ 1 Defendant David Hittle appeals his conviction and the trial court's denial of his motion to withdraw his guilty plea because the trial court failed to advise Defendant of his right to a speedy trial under Rule 11(e)(3) of the Utah Rules of Criminal Procedure. While conceding that the trial court failed to advise Defendant of his right to a speedy trial under rule 11(e)(8), the State argues that the error was harmless because Defendant has failed to show that but for the trial court's omission, he would have proceeded to trial. We reverse.

BACKGROUND

¶ 2 Defendant was charged with a third degree felony and a class A misdemeanor for criminal mnon-support, in violation of Utah Code Ann. § 76-7-201 (1999). During a hearing in April 2000, Defendant pleaded guilty to the class A misdemeanor, agreed to pay all child support arrearages, and agreed to 36 months probation in exchange for the State dropping the felony, charge and the trial court suspending his one year jail sentence. However, during the rule 11 colloquy, the trial court failed to inform Defendant of his right to a speedy trial. The trial court stated the following:

Do you understand that by entering this plea today ... you are giving up your right to go to trial; [your] right to confront and cross examine witnesses, to present evidence on your behalf or to refrain from presenting evidence if you[ ] wish and to make the State carry the burden of proving beyond reasonable doubt all of the elements of the offense as charged; to have witnesses brought on your behalf to court to testify, with the compulsion of a subpoena if necessary. You have the right not to commit yourself unless you choose to take the stand in which case you would be subject to cross examination. You have the right to, if you were to be convicted and found guilty following a trial by an impartial decision maker, or a jury in this matter, you would have the right to appeal. You're giving up those rights by entering this plea today.

Defendant stated that he was prepared to give up those rights and agreed that he understood the potential penalties for pleading guilty to a class A misdemeanor. Furthermore, the Plea Agreement Defendant signed did not include a provision waiving the right to a speedy trial.

¶ 3 On May 17, 2000, Defendant filed a motion to withdraw his guilty plea. The trial court denied the motion and this appeal followed.

ISSUE AND STANDARD OF REVIEW

¶ 4 Because Defendant did not object below to the trial court's omissions under rule 11, we review Defendant's claim for plain error. We determine whether the trial court committed plain error as a matter of law. See State v. Brooks, 868 P.2d 818, 821 (Utah Ct.App.1994).

ANALYSIS

¶ 5 Since Defendant claims for the first time on appeal that the trial court failed to inform him of his right to a speedy trial, Defendant must show plain error. See State v. Garcia, 2001 UT App 19, ¶ 6, 18 P.3d 1123. " 'To succeed on a claim of plain error, a defendant has the burden of showing (N[aln error exists; () the error should have been obvious to the trial court; and (iii) the error is harmful.'" State v. Tarnawiecki, 2000 UT App 186, ¶ 11, 5 P.3d 1222 (citations and internal quotations omitted) (alteration in original). "To show obviousness of the error, [Defendant] must show that the law was clear at the time of trial." Garcia, 2001 UT App 19 at ¶ 6, 18 P.3d 1123; see also State v. Ross, 951 P.2d 286, 239 (Utah Ct.App.1997) ("Utah courts have repeatedly held that a trial court's error is not plain where there is no settled appellate law to guide the trial court."). Our review of Defendant's claim under each element of plain-error analysis is set forth below.

¶ 6 First, the trial court erred by failing to advise Defendant of his right to a speedy trial. Under Rule l1(e)(8) of the Utah Rules of Criminal Procedure, a trial court may not accept a guilty plea until it finds that the defendant knows that by pleading guilty, he is waiving "the right to a speedy public trial." In analyzing alleged rule 11 violations, we have held that "strict compliance, rather than substantial compliance, with Rule 11 is required when accepting a guilty plea." Tarnawiecki, 5 P.3d 1222, 2000 UT App 186 at ¶ 12 (emphasis added); see also State v. Maguire, 830 P.2d 216, 217 (Utah 1991). The trial court did not strictly comply with rule 11 because it failed to advise Defendant of his right to a speedy trial either orally or in the plea affidavit. Therefore, the trial court erred.

17 Second, this error should have been obvious to the trial court in light of our opinion in Tarnawiecki. In Tarnawiecki, the trial court failed to notify the defendant of her right "to a speedy trial before an impartial jury" pursuant to rule 11. 5 P.3d 1222, 2000 UT App 186 at ¶ 16. Because the defendant raised the issue for the first time on appeal, we applied a plain error analysis and held that the trial court's omission was an obvious error. See id. at ¶ 18. We reasoned that in light of Utah appellate court opinions requiring strict compliance with the rule 11 colloquy requirements, the trial court should have known that failing to inform the defendant of her right to a "speedy trial before an impartial jury" was error. Id. at ¶ 19. Therefore, like Tarnawiecki, the trial court's failure to inform Defendant of his right to a speedy trial was an obvious error.

¶ 8 The State argues that the alleged error was not obvious because Tarnawieck is distinguishable from Defendant's case. In Tarnawiecki, the trial court "wholly failed to advise [the] defendant of her constitutional right to a speedy trial before an impartial jury." Id. at ¶ 17. However, in Defendant's case, the trial court omitted only the word "speedy" from the required rule 11 colloquy. Since the trial court complied with the requirements of Tarnawiecki, with the exception of the word "speedy," the State argues that the error was not obvious. However, because "strict compliance, rather than substantial compliance, with Rule 11 is required when accepting a guilty plea," the State's argument fails. Id. at ¶ 12. Furthermore, the constitutional right to a speedy trial is a distinct right of criminal defendants, separate from the right to a trial before an impartial jury. See U.S. Const. amend. VI. Thus, a defendant must be informed of this right and knowingly waive it in order to enter a valid guilty plea.

¶ 9 Finally, the trial court's omission was harmful because the omission dealt with a substantial constitutional right. See id. It is well established under Utah law that we will presume harm under plain error analysis when a trial court fails to inform a defendant of his constitutional rights under rule 11. See, e.g., Tarnawiecki, 5 P.3d 1222, 2000 UT App 186 at ¶ 18 (presuming harm when trial court failed to inform Defendant that she was entitled to a "speedy trial before an impartial jury"); State v. Ostler, 2000 UT App 28, ¶¶ 25-26, 996 P.2d 1065 (presuming harm where trial court failed to inform defendant that he would waive certain constitutional rights by pleading guilty); State v. Pharris, 798 P.2d 772, 774 n. 5 (Utah Ct.App.1990) (same).

¶ 10 The reason for presuming harm is that by not knowing which rights a defendant is waiving, the defendant cannot make a fully informed decision. See Ostler, 996 P.2d 1065, 2000 UT App 28 at ¶ 25. If the defendant is not fully informed of his rights prior to pleading guilty, then the guilty plea cannot be voluntary. See id. We cannot accept an involuntary guilty plea and still claim to have done justice. Therefore, because the trial court failed to advise Defendant of his substantial constitutional right to a speedy trial, we presume harm.

CONCLUSION

¶ 11 Because the trial court committed plain error in advising Defendant of his rights, we reverse and remand for proceedings consistent with this opinion.

T12 WE CONCUR: JAMES Z. DAVIS and WILLIAM A. THORNE JR., Judges.

      . Defendant also argues that the trial court committed other omissions under Rule 11 of the Utah Rules of Criminal Procedure and that his trial counsel was ineffective. Since we reverse on the ground that the trial court failed to inform Defendant of his right to a speedy trial, we do not address these other issues.