author: GREENWOOD, Judge:

text:
    2003 UT App 388
    Anthony H. COOMBS, an individual; Scott Haslam, an individual; Judith M. Haslam, an individual; and HASCO, LLC, a Utah limited liability company, Plaintiffs and Appellants, v. JUICE WORKS DEVELOPMENT, INC., an Arkansas corporation; TCBY Systems, Inc., an Arkansas corporation; Mrs. Fields Original Cookies, Inc., a Delaware corporation; Mrs. Fields, Inc.; Mrs. Fields Brand, Inc.; Mrs. Fields Holding Company, Inc.; and Mrs. Fields Famous Brands, Defendants and Appellees.
    No. 20020720-CA.
    Court of Appeals of Utah.
    Nov. 14, 2003.

      Conrad B. Houser, Salt Lake City, for Appellants.
    Deno G. Himonas, Jones Waldo Holbrook & McDonough, Salt Lake City, for Appellees.
    Before JACKSON, P.J., BENCH, and GREENWOOD, JJ.
   OPINION

GREENWOOD, Judge:

"[ 1 Anthony Coombs, Seott Haslam, Judith Haslam, and HASCO, LLC (collectively, Plaintiffs) appeal the trial court's grant of a motion to dismiss brought by Juice Works Development, Inc., TCBY Systems, Inc., and Mrs. Fields Original Cookies, Inc. (collective ly, Defendants) Defendants brought the motion to dismiss based on a forum selection clause in a contract between franchisee Plaintiffs and franchisor Juice Works. Based on the forum selection clause, the trial court granted Defendants' motion. We affirm.

BACKGROUND

T2 Anthony Coombs, Scott Haslam, and Judith Haslam were doing business through HASCO Synergeties, LLC, and were awarded a Juice Works franchise. HASCO and Juice Works entered into the Juice Works Franchise Agreement (the Agreement) on June 5, 1997. The Agreement contains a forum selection clause, which states,

F. EXCLUSIVE JURISDICTION
FRANCHISEE and the COMPANY agree that any action arising out of or relating to this Agreement (including, without limitation, the offer and sale of the franchise rights) shall be instituted and maintained only in a state or federal court of general jurisdiction in Pulaski County, Arkansas, and FRANCHISEE irrevocably submits to the jurisdiction of such court and waives any objection FRANCHISEE may have either to the jurisdiction or venue of such court.
G. BINDING EFFECT
This agreement is binding upon the parties hereto and their respective executors, administrators, heirs, assigns, and sucees-sors in interest, and shall not be modified except by written agreement signed by both FRANCHISEE and the COMPANY.

After the Agreement was signed, Plaintiffs opened a Juice Works store in Salt Lake City, Utah. They closed their franchise in March 2000, and subsequently filed suit in Utah state court, claiming breach of contract, fraud, concealment, breach of fiduciary duty, and negligence.

T3 Defendants filed a Motion to Dismiss for improper venue, based on the forum selection clause in the Agreement. The clause expressly provides that "any action arising out of or relating to this Agreement" shall be brought only in Arkansas courts. (Emphasis added.) Despite this provision, Plaintiffs claim suit should be permitted in Utah. They maintain that they have never been to Arkansas, the contract was not negotiated or entered into in Arkansas, and that they have only exchanged a few phone calls with individuals in Arkansas. Plaintiffs' complaint alleges that Juice Works, an Arkansas corporation, was in some manner purchased by TCBY Systems, Inc., which is owned or operated by Mrs. Fields Original Cookies, Inc. Because Mrs. Fields's corporate business offices are in Utah, Plaintiffs argue suit should be permitted in Utah.

T4 After oral argument on Defendants' Motion to Dismiss, the trial court allowed limited discovery on the financial impact that litigating in Arkansas would have on Plaintiffs. Based on this discovery, Defendants argued that Plaintiffs have sufficient funds to maintain suit in Arkansas. In response, Plaintiffs argued that Defendants overstated Plaintiffs' assets, and that the test for venue entails more than whether they can afford to litigate in a distant forum. The Motion to Dismiss was renewed and subsequently granted, based on the trial court's holding that Plaintiffs had not met their burden of establishing that the forum selection clause should not be enforced. Plaintiffs appeal.

ISSUE AND STANDARD OF REVIEW

15 Plaintiffs claim on appeal that the trial court erred when it granted Defendants' Motion to Dismiss under Utah Rule of Civil Procedure 12(b)(@8). This court reviews a trial court's dismissal based on a forum selection clause for abuse of discretion. See Prows v. Pinpoint Retail Sys., Inc., 868 P.2d 809, 810 (Utah 1998); see also O'Brien Eng'g Co., Inc. v. Continental Machs., Inc., 738 So.2d 844, 846 n. 2 (Ala.1999) (listing Utah among courts that apply abuse of discretion standard "in reviewing a lower court's order dismissing a case because of a forum selection clause").

ANALYSIS

16 Plaintiffs argue that the trial court improperly granted Defendants' Motion to Dismiss, which was based on a clause designating Arkansas as the sole forum for any actions arising out of or relating to the Agreement. Plaintiffs maintain they should be permitted to bring suit in Utah, despite the forum selection clause, because the clause was not negotiated, the franchise was in Utah, and Defendants have a significant presence in Utah. Plaintiffs also argue that the trial court abused its discretion by narrowly focusing on Plaintiffs' financial ability to litigate in Arkansas.

T7 Before reviewing the trial court's dismissal, we briefly discuss what may be considered in our review. Defendants' motion to dismiss for improper venue was brought under rule 12(b)(8) of the Utah Rules of Civil Procedure. Accordingly, this court may consider facts alleged outside the complaint, as did the trial court. Rules 12(b)(1) to-(5) motions are not converted " "into motions for summary judgment simply because they include some affirmative evidence relating to the basis for the motion. " Wheeler v. McPherson, 2002 UT 16,¶ 20, 40 P.3d 632 (quoting Spoons v. Lewis, 1999 UT 82,¶ 5, 987 P.2d 36). One reason a motion to dismiss for improper venue is not converted into a motion for summary judgment is because a party is not required to state facts in the complaint sufficient to establish "that there is no contract that precludes the plaintiff from proceeding in the forum it has chosen." Simon v. Navellier Series Fund, No. 17734, 2000 WL 1597890, 2000 Del. Ch. LEXIS 150 (Del. Ch. Oct. 19, 2000), at "18 (adopting flexibility allowed in addressing motions under Federal Rules of Civil Procedure 12(b)(1) to-(5)).

{8 In this case, the parties submitted affidavits and the court granted limited discovery on the motion to dismiss. Similarly, in Salt Lake Tribune Publishing Co. v. Memmott, 2001 UT 83, 40 P.3d 575, the trial court "granted limited discovery on the facts relating to venue, creating a record in addition to the allegations in the complaint." Id. at T4. In reviewing the question of venue, the court relied on facts alleged in the complaint, "supplemented where appropriate by the materials obtained through discovery." Id. So too in this case, this court relies on the complaint, affidavits, and the limited record cere-ated through discovery.

T 9 The Utah Supreme Court first considered the validity of a forum selection clause such as the one at issue in this case in Prows v. Pinpoint Retail Systems, 868 P.2d 809 (Utah 1993). In Prows, the court specifically adopted "section 80 of the Second Restatement of Conflict of Laws: 'The parties' agreement as to the place of the action will be given effect unless it is unfair or unreasonable." " Id. at 812 (quoting Restatement (Second) of Conflict of Laws § 80 (Supp. 1988)). The court stated,

Under this section, a plaintiff who brings an action in violation of a choice-of-forum provision bears the burden of proving that enforcing the clause is unfair or unreasonable.
To meet this burden, a plaintiff must demonstrate that the "chosen state would be so seriously an inconvenient forum that to require the plaintiff to bring suit there would be unjust."

Id. (citations and footnote omitted).

110 In defining the weight of this burden, the Prows court looked to M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 82 L.Ed.2d 518 (1972). See Prows, 868 P.2d at 811. " 'It should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be [so] gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court." " Id. at 812 (alterations in original) (quoting M/S Bremen, 407 U.S. at 18, 92 S.Ct. at 1917). The M/S Bremen court also stated that forum selection clauses are "prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the cireumstances." Id. at 10, 92 S.Ct. at 1918 (footnote omitted) Finally, where a forum selection clause is "obtained through 'freely negotiated agreements and [is] not 'unreasonable and unjust, [its] enforcement does not offend due process." Phone Directories Co., Inc. v. Henderson, 2000 UT 64, 115 n. 9, 8 P.3d 256 (quoting Burger King Corp. v. Rudzewics, 471 U.S. 462, 473 n. 14, 105 S.Ct. 2174, 2182 n. 14, 85 L.Ed.2d 528 (1985) (other citations omitted)).

1 11 Plaintiffs in this case attempt to meet this heavy burden of showing that the forum selection clause is either unfair or unreasonable. As previously noted, Plaintiffs argue that: (1) the forum selection clause was not negotiated and therefore should not be enforced; (2) because Defendants have a significant presence in Utah, suit should be permitted in Utah; and (8) the trial court improperly relied on Plaintiffs' financial ability to litigate in Arkansas.

{12 Plaintiffs first claim that the Agreement was not freely negotiated and therefore they should not be subject to it. Plaintiffs argue that they did not read the forty page Agreement and that there was no opportunity to discuss or alter any of the terms in the Agreement. However, the United States Supreme Court has noted that a forum selection clause in a non-negotiated form contract is valid, so long as it is not fundamentally unfair. See Cornival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 1528, 118 L.Ed.2d 622 (1991) (upholding forum selection clause included in three page form attached to cruise ship ticket); accord M.B. Rests., Inc. v. CKE Rests, Inc., 188 F.3d 750, 753 (8th Cir.1999) (enforeing forum selection clause in franchise agreements).

1 13 Moreover, Plaintiffs do not argue that the forum selection clause was unfair, only that they did not read it. They do not argue that the clause was invalid for reasons such as fraud or overreaching, see Prows, 868 P.2d at 812 n. 5, nor do they offer any other legitimate reason that the court should not "give effect to the legitimate expectations of the parties, manifested in their freely negotiated agreement." M/S Bremen, 407 U.S. at 12, 92 S.Ct. at 1914. Accordingly, we reject Plaintiffs' argument.

$14 Next, Plaintiffs argue that suit should be permitted in Utah because the franchise at issue was located in Utah and Defendants have a significant presence through related entities in Utah. The complaint alleges that although Juice Works is an Arkansas corporation, Plaintiffs believe Juice Works was in some manner purchased or acquired by TCBY Systems, Inc., a company owned and run by Mrs. Fields Original Cookies, Inc. Because Mrs. Fields is headquartered in Utah, Plaintiffs assert suit should be allowed in Utah.

¶ 15 Plaintiffs' argument disregards the legal test for whether a forum selection clause should be enforced: whether suit in the contracted-for venue would be "unfair or unreasonable" or whether enforcing the clause would in effect deny Plaintiffs their day in court. Prows v. Pinpoint Retail Sys., 868 P.2d 809, 812 (Utah 19983). Further, even when we "view the facts and 'construe the complaint in the light most favorable to the plaintiff and indulge all reasonable inferences in his favor/ " id. at 810 (citation omitted), Plaintiffs' argument fails. Ownership or management of Juice Works is not relevant to the forum selection clause which was accepted and signed by both parties to the Agreement. A primary reason for forum selection clauses is to protect a party, in this case Juice Works, from " 'having to litigate in distant forums all over the nation.... [SJuch provisions should be enforced when invoked by the party for whose benefit they are intended." " Medical Legal Consulting Serv., Inc. v. Covarrubias, 648 F.Supp. 153, 155 (D.Md.1986) (citation omitted). Further, Plaintiffs do not demonstrate why Defendants should not be entitled to "the benefit of [their] bargain which includes the forum selection clause," id., even if ownership of Juice Works has changed.

Y16 Lastly, Plaintiffs maintain the trial court abused its discretion by improperly focusing on their financial ability to maintain suit in Arkansas. This argument misconstrues the trial court's holding. While the trial court did allow limited discovery on Plaintiffs' financial resources, it did not dismiss the suit merely because Plaintiffs appear financially able to manage the increased costs of litigating in a distant forum. Rath er, the trial court's Memorandum Decision states that Plaintiffs failed to meet their burden to establish that suit in Arkansas would be "[so) gravely difficult and finconven-ient that [Plaintiffs] will for all practical purposes be deprived of [their] day in court." See Prows, 868 P.2d at 812 (first alteration in original) (quotations and citation omitted). The facts of this case are significantly different from those in Prows, where enforcement of the forum selection clause would have required suits in two forums and the impossible burden of proving conspiracy absent one of the two alleged conspirators. See id. at 813. Accordingly, the court's dismissal in this case was based on more than the financial impact of litigating in Arkansas, contrary to Plaintiffs' argument.

CONCLUSION

117 The trial court's grant of Defendants' Motion to Dismiss was not an abuse of discretion. Plaintiffs failed to meet their burden of demonstrating that the forum selection clause contained in the parties' Agreement was unfair or unreasonable, or that enforeement of the clause would deny Plaintiffs their day in court. We affirm.

18 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and RUSSELL W. BENCH, Judge.

      . Although the caption of this case lists Mrs. Fields, Inc., Mrs. Fields Brand, Inc., Mrs. Fields Holding Company, Inc., and Mrs. Fields Famous Brands as defendants in this action, these entities were never served. Therefore, the only participating defendants in this action are Juice Works Development, Inc., TCBY Systems, Inc., and Mrs. Fields Original Cookies, Inc.

      . "In reviewing a motion to dismiss under rule 12(b)(3) of the Utah Rules of Civil Procedure, we view the facts and 'construe the complaint in the light most favorable to the plaintiff and indulge all reasonable inferences in his favor.' " Prows v. Pinpoint Retail Sys., Inc., 868 P.2d 809, 810 (Utah 1993) (quoting Mounteer v. Utah Power & Light Co., 823 P.2d 1055, 1058 (Utah 1991)).

      . Additionally, Plaintiffs argued for the first time during oral argument before this court that the forum selection clause should not be enforced because it would bifurcate their claims. Plaintiffs argued that because the complaint enumerates both tort and contract claims, if the clause is enforced they will be required to litigate the contract claims in Arkansas and the tort claims in Utah. " 'We will not address any new arguments raised for the first time on appeal.' " Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 19, 70 P.3d 904 (quoting Treff v. Hinckley, 2001 UT 50,¶ 9 n. 4, 26 P.3d 212 (other citation omitted)). A review of the record and the briefs in this case reveals that Plaintiffs did not previously argue this theory.
      In any event, the Agreement expressly provides that "any action arising out of or relating to this Agreement" shall be brought in Arkansas courts. (Emphasis added.) This language appears to account for both tort and contract claims that arise out of or relate to the Agreement. Plaintiffs' claims in this action all arise out of Defendants' alleged misrepresentations or failures to perform under the Agreement.

      . Although M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) was an admiralty case, its principles have been generally applied in domestic forum selection cases. See, e.g., Prows, 868 P.2d at 811-13; Gil-man v. Wheat, First Sec., Inc., 345 Md. 361, 377-78, 692 A.2d 454 (1997) (listing non-admiralty Supreme Court cases applying principles of M/S Bremen ).

      . Additionally, Plaintiffs maintain that despite the limited discovery which was conducted, litigating in Arkansas would be a severe financial burden for them. "[Inconvenience to a party is an insufficient basis to defeat an otherwise enforceable forum selection clause." M.B. Rests., Inc. v. CKE Rests., Inc., 183 F.3d 750, 753 (8th Cir.1999).


source: Caselaw Access Project

author: ORME, Judge:

license: Public Domain

text:
    2003 UT App 381
    STATE of Utah, Plaintiff and Appellee, v. Jerry Lynn MARSHALL, Defendant and Appellant.
    No. 20020829-CA.
    Court of Appeals of Utah.
    Nov. 14, 2003.

      Margret Sidwell Taylor, Helper, and W. Andrew McCullough, McCullough & Assoc., Midvale, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Kris C. Leonard, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before JACKSON, P.J., BENCH and ORME, JJ.
   OPINION

ORME, Judge:

T1 Defendant was charged with felony DUI based on enhancement due to two prior DUI convictions. Defendant filed a motion to dismiss the felony DUI charge, arguing that the enhancement provision in the DUI statute was unconstitutional as applied to him because it violates the prohibition against ex post facto laws. The trial court denied his motion. Defendant appeals, and we affirm.

BACKGROUND

2 The parties stipulated to the facts governing this appeal. On April 26, 2002, Defendant purchased a twelve-pack of beer at BK's convenience store in Huntington, Utah. The transaction was witnessed by another customer, Sergeant Gayle Jensen of the Emery County Sheriffs Department, who noticed that Defendant appeared to be intoxicated. Sergeant Jensen told Defendant not to drive and suggested that he call a friend to pick him up. The Defendant placed a phone call, and Sergeant Jensen left. Soon after, however, Sergeant Jensen decided to return to BK's to ensure that Defendant did not drive. Upon his return to BK's, Sergeant Jensen observed Defendant drive away. Sergeant Jensen stopped Defendant, conducted field sobriety tests, and concluded that Defendant was intoxicated. Defendant was arrested and given an intoxilyzer test, which showed a blood alcohol concentration of .25, more than three times the legal limit in Utah. See Utah Code Ann. § 41-6-44(2)(a)(i) (Supp.2003). An open container of aleohol was also found in Defendant's vehicle.

T3 Defendant was charged by information with driving under the influence of alcohol and having an open alcoholic beverage con-taimer in a motor vehicle. Because two or more of Defendant's nine prior DUI convie-tions fell within ten years of his April 2002 arrest, Defendant's DUI charge was enhanced from a class B misdemeanor to a third degree felony pursuant to the 2001 amendment to the DUI statute. See Utah Code Ann. § 41-6-44(8)(a)0), (6)(a)G) (Supp. 2002). Pursuant to that amendment, effective April 30, 2001, a DUI conviction is a third degree felony if it occurs "within ten years of two or more prior [DUI] convictions." Id. § Prior to the 2001 amendment, the felony enhancement provision applied to a third conviction within six years. See id. § 41-6-44(6)(a) (Supp. 1999).

T 4 Defendant filed a motion to dismiss the felony DUI charge. First, Defendant argued that enhancement of the offense violated his due process rights because in 1995 and 1998, when his prior DUI convictions were entered, he was not given "notice of the consequences of any future violation" and "could not have ... foreseen that in the year 2001 the Utah State Legislature would pass a law by which his [prior] convictions would be used to enhance thle current DUI] charge to a third degree felony." Second, Defendant argued that the 2001 amendment could not be applied retroactively; thus, any offense committed prior to its enactment could not be used against him for enhancement purposes as that would violate the constitutional prohibition against ex post facto laws.

T5 The trial court rejected Defendant's ex post facto argument, concluding that "[the 2001 amendment does not affect the status of the previous offenses or convictions and does not increase their severity or penalty." Rather, the court held, the 2001 amendment merely "gives a more severe penalty [for the present offense] because of the prior convictions."

16 As for Defendant's due process argument, the trial court noted that Defendant had nearly one year's notice that the enhancement provision had been amended. Thus, Defendant was on notice as of April 30, 2001, the effective date of the 2001 amendment, "that if he committed a DUI after that date, his charge could be enhanced by any DUI convictions within alten] year period prior to the latest offense." Thus, the trial court concluded that application of the 2001 amendment to his 2002 offense did not violate Defendant's rights on either ex post facto or due process grounds and denied Defendant's motion to dismiss.

T7 With the trial court's approval, Defendant thereafter entered a conditional plea of no contest, reserving his right to appeal the trial court's denial of his motion to dismiss the third degree felony DUI charge. See generally State v. Sery, 58 P.2d 985, 988-39 (Utah Ct.App.1988). In exchange for his no contest plea, the State dropped the open container charge.

ISSUES AND STANDARDS OF REVIEW

18 We must determine whether the trial court properly denied Defendant's motion to dismiss on the basis that the 2001 amendment to the DUI statute violates neither the due process nor ex post facto provisions of the United States Constitution. [Thhe propriety of a trial court's decision to grant or deny a motion to dismiss is a question of law that we review for correctness." Tiede v. State, 915 P.2d 500, 502 (Utah 1996). "[Wlhether legislation violates the ex post facto clause[ ] of the ... United States Constitution{ ] is also a question of law, which we review for correctness, giving the trial court no deference." State v. Daniels, 2002 UT 2,137, 40 P.3d 611. Likewise, "constitutional arguments regarding ... due process present questions of law" that we review for correctness. State v. One 1980 Cadillac, 2001 UT 26,¶ 8, 21 P.3d 212. Accord State v. Frausto, 2002 UT App 259,¶ 14, 53 P.3d 486, cert. denied, 68 P.3d 104 (Utah 2002).

ANALYSIS

19 Defendant renews his ex post fac-to and due process arguments on appeal, e., Defendant argues that enhancement of his current DUI offense based on his prior DUI convictions violated his rights under the ex post facto and due process clauses of the United States Constitution. We now consider each of Defendant's arguments.

I. Ex Post Facto

110 "Article I, § 10, of the Constitution prohibits the States from passing any 'ex post facto Law." " California Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995). The United States Supreme Court has consistently identified four types of criminal laws that fall within the ex post facto prohibition:

"1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.
2d. Every law that aggravates a crime, or makes it greater than it was, when committed.
3d. Every law that changes the punish, ment, and inflicts a greater punishment, than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender."

Carmell v. Texas, 529 U.S. 513, 522, 120 S.Ct. 1620, 1627, 146 L.Ed.2d 577 (2000) (quoting Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798)) (emphasis in original). Accord State v. Daniels, 2002 UT 2,¶ 44, 40 P.3d 611. The first and fourth categories are inapplicable here. Therefore, with a view to the second and third categories, we must decide whether the 2001 amendment to the DUI law retroactively " 'aggravates' " Defendant's prior DUI crimes or " "inflicts a greater punishment' " than that attached to the crimes when they were committed. Id. (citation and emphasis omitted). We therefore turn our attention to our statutory DUI scheme and the 2001 amendment in particular.

T11 As stated above, two of Defendant's nine prior DUIs were used to enhance his tenth and current DUI offense to a third degree felony. The two prior DUI convie-tions relevant to this appeal occurred in December 1995 and September 1998. Our DUI statute has been amended numerous times over the years, reflecting society's increased intolerance for repeat DUI offenders. For example, at the time of Defendant's 1995 offense, a fourth DUI conviction was a third degree felony if committed within six years of the prior violations and if those violations occurred after April 28, 1990. See Utah Code Ann. § 41-6-44(7)(a) (1998). At the time of Defendant's 1998 offense, however, a third DUI conviction was a third degree felony if committed within six years of the prior violations and if those violations occurred after July 1, 1996. See Utah Code Ann. § 41-6-44(6)(a) (1998).

{12 In 1999, the Legislature deleted the date restriction contained in previous versions of the statute; therefore, a third DUI conviction was a third degree felony if committed within six years of the prior violations, regardless of when those violations occurred. See Utah Code Ann. § 41-6-44(6)(a) (Supp. 1999). Finally, in 2001, the Legislature amended the statute again, lengthening the time frame in which prior DUIs could be used for enhancement purposes from six to ten years. See Utah Code Ann. § 41-6-44(6)(a) (Supp.2001). Thus, under the 2001 version of the statute-the version under which Defendant was most recently conviet-ed-a third DUI conviction is a third degree felony if committed within ten years of two prior DUI convictions, regardless of when those prior convictions occurred. See id.

{13 Defendant argues that the 2001 amendment, as applied to him, constitutes a violation of the constitutional prohibition against ex post facto laws because it takes into account offenses committed before its enactment for purposes of enhancement. As a way of avoiding the felony enhancement provision of the 2001 statute, Defendant urges us to graft the cut-off date of the 1998 version of the statute onto the current version. Thus, under Defendant's view, the 2001 DUI statute should be read to allow felony enhancement only if Defendant was convicted of a third DUI within ten years of the prior DUIs, and only if those DUIs occurred after July 1, 1996. But see Utah Code Ann. § 41-6-44(6)(a@)@) (Supp.2001) (containing no cut-off date and stating simply "Ia DUI] conviction ... is a third degree felony if it is committed ... within ten years of two or more prior convictions under this section"). Of course, using the July 1, 1996 cut-off date would mean that Defendant's December 1995 DUI conviction could not be used to enhance his current DUI offense, for which he was convicted on October 1, 2002. We decline to adopt Defendant's peculiar interpretation of the 2001 statute, however, because we find no constitutional infirmity under the ex post facto clause of the United States Constitution.

[ 14 The United States Supreme Court has consistently upheld the constitutionality of recidivist statutes, explaining that "[aln enhanced sentence imposed on a persistent offender ... 'is not to be viewed as [an] additional penalty for the earlier erimes' but as 'a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.'" Monge v. California, 524 U.S. 721, 728, 118 S.Ct. 2246, 2250, 141 L.Ed.2d 615 (1998) (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948)). See also Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 1927, 128 L.Ed.2d 745 (1994) ("Enhancement statutes, whether in the nature of criminal history provisions ... or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction.... '[Thhis Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant' ") (citation omitted); Parke v. Raley, 506 U.S. 20, 26-27, 118 S.Ct. 517, 521-22, 121 L.Ed.2d 391 (1992) {noting that "[sltatutes that punish recidivists more severely than first offenders have a long tradition in this country that dates back to colonial times"; "[sluch laws currently are in effect in all 50 States"; "[sitates have a valid interest in deterring and segregating habitual criminals"; and "we have repeatedly upheld recidivism statutes 'against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, eruel and unusual punishment, due process, equal protection, and privileges and immunities' ") (quoting Speneer v. Texas, 385 U.S. 554, 560, 87 S.Ct. 648, 651, 17 L.Ed.2d 606 (1967)) (other citations omitted).

1 15 While Utah appellate courts have not had occasion to rule on the constitutionality of the 2001 amendment to the DUI statute in the face of an ex post facto challenge, the Utah Supreme Court has upheld recidivist statutes under analogous cireumstances. One such case is particularly instructive. In Zeimer v. Turner, 14 Utah 2d 282, 381 P.2d 721 (1963), the defendant challenged his conviection as a habitual criminal, stemming from violations occurring in 1949 and 1955. See id. at 722. Like Utah's DUI statute, the habitual criminal statute had been amended to allow for stiffer penalties for recidivists. See id. at 722-28. Under the 1950 version of the statute, the defendant's 1949 «offense could not be considered in determining his status as a habitual criminal, but under the 1951 version, it could. See id. The defendant argued that his conviction under the 1951 version of the statute was illegal, as it took into account an offense that occurred before its enactment. See id. at 728. The Utah Supreme Court rejected this argument, explaining that

[tlhe habitual criminal statute will apply only upon a conviction of the criminal offense last charged. Its invocation does not inflict additional or further punishment for the prior convictions or impose a new punishment therefor. It only serves to make more severe the punishment for the last or subsequent offense which might be imposed because of the previous convictions.
Our habitual criminal statute does not require that the prior convictions of an accused be subsequent to its enactment or amendments thereto. It has been generally held that a state may enact such statutes that would consider and apply convie-tions occurring prior to their enactment.

Id. at 728-24 (citations omitted). Cf. State v. Coleman, 540 P.2d 953, 953-54 (Utah 1975) (holding that defendant, who was "convicted of assault with a deadly weapon in the year 1969," could lawfully be charged with "possession of a dangerous weapon by a convicted person" because the latter offense occurred after the applicable statute was enacted in 1973, and because "[the statute ... only has prospective application and in no way affects the 1969 conviction").

116 In the instant case, the 2001 amendment does not retroactively " 'aggravate[ | " the crimes of Defendant's 1995 and 1998 DUIs, nor does it " 'inflict[ ] a greater punishment' " than that attached to those erimes when they were committed. Carmell v. Texas, 529 U.S. 518, 522, 120 S.Ct. 1620, 1627, 146 L.Ed.2d 577 (2000) (quoting Calder v. Bull, 3 U.S. 886, 390, 3 Dall. 386, 1 L.Ed. 648 (1798)) (emphasis omitted). Accord State v. Daniels, 2002 UT 2, 44, 40 P.3d 611. The 2001 amendment went into effect April 30, 2001, see supra note 1, and Defendant committed the current DUI offense on April 26, 2002. Defendant's current conviction punishes him only for the April 2002 offense, albeit more seriously than if he would have committed the same offense at an earlier point in time. For these reasons, Defendant's ex post facto challenge is unavailing.

II. Due Process

117 We now address the separate but closely related issue of whether application of the 2001 amendment violated Defendant's constitutional right to due process. "Due process requires, at a minimum, adequate and timely notice." In re McCully, 942 P.2d 827, 332 (Utah 1997). This means that a criminal statute must be " 'sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.' " Bouie v. Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964) (quoting Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 822 (1926)).

1 18 Defendant, who has managed to garner nine previous DUI convictions, does not argue that, at the time of the instant DUI offense, he was without notice that his conduct was prohibited by law. Indeed, any such argument would be unsuccessful, as it is well-settled that "[iJgnorance ... of [the] law is no defense to a crime." Utah Code Ann. § 76-2-304(2) (1999). Thus, Defendant was deemed to be on notice of the 2001 amendment to the DUI law, and the legal consequences thereof, as of its effective date of April 30, 2001, see Utah Motor Vehicle Act, ch. 289, § 41-6-44(6)(a), 2001 Utah Laws 1349, 1850, which was nearly one year before Defendant's current DUI offense, committed on April 26, 2002.

1 19 Instead, Defendant maintains that, at the time of his 1995 and 1998 convictions, he was constitutionally entitled to "specific notice" that those convictions could later be used to enhance a subsequent DUI offense to a third degree felony. The United States Supreme Court responded to a similar argument in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). In Nichols, the defendant argued that "at a minimum, due process requires a misdemeanor defendant to be warned that his conviction might be used for enhancement purposes should the defendant later be convicted of another crime." Id. at 748, 114 S.Ct. at 1928. The Court disagreed, stating:

No such requirement was suggested in Scott [v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 388 (1979)], and we believe with good reason. In the first place, a large number of misdemeanor convictions take place in police or justice courts which are not courts of record. Without a drastic change in the procedures of these courts, there would be no way to memorialize any such warning. Nor is it at all clear exactly how expansive the warning would have to be; would a Georgia court have to warn the defendant about permutations and commutations of recidivist statutes in 49 other States, as well as the criminal history provision of the Sentencing Guidelines applicable in federal courts? And a warning at the completely general level-that if he is brought back into court on another criminal charge, a defendant such as Nichols will be treated more harshly-would merely tell him what he must surely already know.

Id. Defendant cites rule 9-801 of the Utah Code of Judicial Administration to support his due process argument. Rule 9-801 applies to "justice courts in those cases where the defendant may be subject to an enhanced penalty if convicted of the same offense in the future." Utah Code Jud. Admin. R9-801. In such cases, the rule states that, "upon the entry of a plea of guilty, the justice court judge shall [aldvise the defendant, orally and in writing of the defendant's rights, the elements of the charged offense, the penalties

20 It is unclear, first of all, whether rule 9-301 applies outside of the context of determining the validity of a criminal defendant's guilty plea. Defendant does not state whether or not he pled guilty in connection with the 1995 conviction, but merely alleges that the offense "was prosecuted in the Justice Court as a Class B misdemeanor" and that he was not given "specific notice" of the possibility of third degree felony enhancement for subsequent DUI convictions.

121 Additionally, Defendant provides no citations to the record to support his argument that he was not advised of the possibility of enhancement at the time of his prior convictions. Defendant instead argues that "(tlhe State has not provided written evidence to prove that Defendant was so advised," but it is Defendant's burden, not the State's, to provide citations to the record to support his legal arguments on appeal. See Utah R.App. P. 24(a)(9) ("The brief of the appellant shall contain ... citations to the authorities, statutes, and parts of the record relied on.").

22 Furthermore, the "specific notice" Defendant claims he was entitled to in 1995, i.e., that in the future the Legislature would amend the DUI law so that a third DUI conviction in ten years would be charged as a third degree felony, would have been impossible to give. At most, the justice court can be responsible only for advising Defendant of the possibility of enhancement based on the DUI statute in force at the time of a future conviction, and again, Defendant has provided no evidence showing that he was not so advised.

{23 In any event, Defendant has not shown that he was constitutionally entitled to "specific notice" at the time of his prior DUI convictions that those offenses could be used to enhance his current DUI conviction to a third degree felony. Thus, Defendant's due process argument is unavailing.

CONCLUSION

24 The trial court correctly determined that application of the enhancement provision of the 2001 amendment to Defendant's current DUI conviction violates neither the ex post facto nor due process clauses of the United States Constitution.

[ 25 Affirmed.

26 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and RUSSELL W. BENCH, Judge.

      . The trial court mistakenly noted, as does the State on appeal, that the effective date of the 2001 amendment was July 1, 2001; however, the amendment actually went into effect April 30, 2001. See Utah Motor Vehicle Act, ch. 289, § 41-6-44(6)(a), 2001 Utah Laws 1349, 1350; amendment notes, Utah Code Ann. § 41-6-44 (Supp.2003). Because Defendant's DUI arrest occurred on April 26, 2002, Defendant had nearly one year's notice of the 2001 amendment.

      . As we " 'recognize[ ] no distinction between the protection against ex post facto laws provided by the Viah and the United States Constitutions," " State v. Daniels, 2002 UT 2,1 42, 40 P.3d 611 (citations omitted in original), and as Defendant "has not adequately set forth any separate legal analysis" under the due process provisions of the Utah Constitution, State v. Davis, 972 P.2d 388, 392 (Utah 1998), we do not separately analyze Defendant's state constitutional claims.

      . This position is inherently inconsistent with Defendant's general argument, which is that the 2001 amendment is an ex post facto law because it takes into account offenses committed before its enactment for purposes of enhancement. If, as Defendant suggests, a statute is rendered constitutionally infirm if it "looks back" to offenses committed before its enactment, such infirmity would not be cured by looking back only six years instead of ten.

      . Some of the United States Supreme Court cases we cite here are not necessarily pristine ex post facto cases, but they nevertheless apply by analogy. Monge v. California, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998), for example, was a double jeopardy case, but its reasoning is applicable here, where Defendant argues that the 2001 amendment operates to punish him (again) for conduct that occurred before its enactment. See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 1149, 155 L.Ed.2d 164 (2003) (noting relationship between ex post facto and double jeopardy jurisprudence).

      . Numerous other jurisdictions have rejected ex post facto challenges to enhancement statutes thai take into account prior DUI convictions. See State v. Yellowmexican, 142 Ariz. 205, 688 P.2d 1097, 1099 (Ct.App.1984) (citing cases from other jurisdictions and stating that "[eluhanced punishment statutes for repeat offenders have been consistently upheld against arguments that they violate ex post facto proscriptions" and holding that, in the case before it, "[the punishment imposed under [the Arizona DWI recidivist statute] is based on the third DWI [and] does not increase the penalty for the [two] prior convictions"), approved en bane by 142 Ariz. 91, 688 P.2d 983 (1984); Roberts v. State, 494 A.2d 156, 157 (Del.1985) (holding that "the mandatory sentencing provision of the statute is not an ex post facto law as it applies to this defendant, since the enhanced punishment could be invoked only after a second offense, and, in this case, the second offense took place after the statute had been amended"); Botkin v. Commonwealth, 890 S.W.2d 292, 295 (Ky.1994) (rejecting defendants' ex post facto challenge and holding, "[hlere the offenders are not being punished for crimes committed prior to the effective date of the [enhancement] statute, but for a crime committed thereafter, albeit they received a greater punishment by reason of their status as prior offenders for other driving under the influence offenses"); Bailey v. State, 728 So.2d 1070, 1074 (Miss.1997) (upholding enhancement statute and stating: "The statute regarding third-offense DUI charges has not been changed such that [defendant] would be receiving a stronger punishment than that enumerated in the statute at the time [defendant] committed his third DUI[;] ... therefore, the ex post facto analysis is inapplicable."); State v. Brander, 280 Mont. 148, 930 P.2d 31, 35 (1996) (rejecting defendant's ex post facto challenge and stating that "the increase in punishment at issue here is a consequence of [defendant's] present offense only and this enhancement neither punishes any previous conduct nor increases the penalty for any prior conviction of DUI[; rather,] the enhancement of [defendant's] present DUI to felony status is nothing more nor less than current punishment for his repetitive drunk driving offense"); State v. Hansen, 258 Neb. 752, 605 N.W.2d 461, 464 (2000) (upholding enhancement statute and stating: "In the instant case, [defendant] is not receiving additional punishment for his previous convictions, but he is being penalized under the newly amended statutory scheme for persisting in committing the offense of DUI."); State v. Edwards, 302 S.C. 492, 397 $.E.2d 88, 89 (1990) (rejecting defendant's argument "that the legislature did not intend for the 1988 amendment to apply 'retroactively' to allow consideration of his 1983 conviction [in determining the degree of his current DUI offense]" because "the clear and unambiguous language of the amendment indicates that the new 10 year period is to be used in determining the degree of any DUI committed on or after January 1, 1989").

      . We reject Defendant's argument under Utah Code Ann. § 68-3-3 (2000) for the same reasons. Section 68-3-3 states: "No part of these revised statutes is retroactive, unless expressly so declared." The 2001 amendment does not operate retroactively; therefore, it comports with section 68-3-3.

      . A violation of the prohibition against ex post facto laws necessarily implicates due process concerns, as an individual is deprived of "fair notice ... when the legislature increases punishment beyond what was proscribed when the crime was consummated." Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981). We have already determined that the 2001 amendment is not an ex post facto law. In this section, then, we treat Defendant's due process claim only insofar as it is advanced on a footing independent of his ex post facto argument.

      . Many other courts have echoed the Supreme Court's statements in Nichols, rejecting the notion that a criminal defendant is constitutionally entitled to specific notice that the instant conviction may later be used for enhancement purposes should the defendant be convicted of a subsequent crime. See State v. Chapman, 685 A.2d 423, 425 (Me.1996) (rejecting defendant's argument that her prior DUI convictions could not be considered for purposes of enhancement and holding that "[dlefendant's due process claim fails [because alfter the effective date of the amendment [to the DUI law], defendant had fair notice that a conviction for operating under the influence would subject her to the currently defined penalty"); State v. Zoellner, 920 S.W.2d 132, 135-36 (Mo.Ct.App.1996) (rejecting defendant's due process argument that he " 'had no reason to believe nor did he know that by entering pleas to two [prior DUI charges], that he was "two-thirds of the way" to a felony offense' " and stating that "a trial court is not required to inform a defendant who pleads guilty that the legislature may amend the law in the future"); State v. Arguello, 655 N.W.2d 451, 452-53 (S.D. 2002) (per curiam) (rejecting defendant's due process argument that "because he was not informed that [his two prior DUI] convictions could subsequently be used to enhance his [current DUI] sentence they are void for enhancement purposes" and stating that "[al 'defendant is not entitled, as a constitutional right, ... to information regarding the future use of his conviction for purposes of enhancement' ") (quoting Presley v. State, 498 S$o.2d 832, 833 (Miss.1986)); State v. Edwards, 302 S.C. 492, 397 S.E.2d 88, 89-90 (1990) (rejecting defendant's due process argument and stating: "The inquiry is not whether appellant had notice of the 1988 amendment at the time of his 1983 conviction, but whether he had fair notice of the amendment when he committed the current offense on February 3, 1989. Because the current offense took place after the effective date of the amendment, appellant clearly had notice that his 1983 conviction would be considered in determining his punishment for the current offense. Therefore, appellant's due process rights have not been violated.").

      . Even assuming Defendant did plead guilty to the charges culminating in his prior DUI convictions, it does not follow that those pleas would be invalidated for enhancement purposes based solely on a failure to comply with rule 9-301 of the Uiah Code of Judicial Administration. It is well-settled that
      failure to comply with [procedural rules, including] rule 11 [of the Utah Rules of Criminal Procedure] in taking a guilty plea does not in itself amount to a violation of a defendant's rights under either the Utah or the United States Constitution. To [collaterally attack a conviction], a petitioner must show more than a violation of the prophylactic provisions of [a procedural rule]; he or she must show that the guilty plea was in fact not knowing and voluntary.
      Salazar v. Warden, 852 P.2d 988, 992 (Uiah 1993). For a plea to be knowing and voluntary, "an accused must be 'fully aware of the direct consequences' of a guilty plea." State v. McFadden, 884 P.2d 1303, 1304 (Utah Ct.App.1994) (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ci. 1463, 1472, 25 LEd.2d 747 (1970), cert. denied, 892 P.2d 13 (Utah 1995) {emphasis in original). However, " 'if the consequence flowing from the plea is "collateral," then the defendant need not be informed of it before entering the plea.' " Id. (quoting Santos v. Kolb, 880 F.2d 941, 944 (7th Cir.1989), cert. denied, 493 U.S. 1059, 110 S.Ct 873, 107 L.Ed.2d 956 (1990). "A collateral consequence is one that is not related to the length or nature of the sentence imposed on the basis of the plea." Id. Courts that have considered the question have held that failure to advise a criminal defendant of the possibility of enhancement should he later be convicted of another crime is a collateral, and not a direct consequence of pleading guilty, and Defendant cites no authority to suggest otherwise. See, eg., United States v. Brownlie, 915 F.2d 527, 528 (9th Cir.1990) (''The possibility that the defendant will be convicted of another offense in the future and will receive an enhanced sentence based on an instant conviction is not a direct consequence of a guilty plea."); People v. Marez, 39 P.3d 1190, 1193-94 (Colo. 2002) ("It is also well-settled that the consequences of subsequent acts by a defendant, even if those consequences are enhanced by an earlier guilty plea, are collateral rather than direct consequences of the earlier plea and therefore are not consequences of which the defendant must have been advised upon entering the earlier plea."); Ex parte Dumitru, 850 S.W.2d 243, 244-45 (Tex.App.1993) ("[X]t is well settled that a trial court is not required to admonish a defendant that the consequences of her plea include the possibility that the conviction which ensues from the plea might be used for enhancement purposes in a subsequent trial.").


author: DAVIS, Judge:

text:
    2003 UT App 389
    STATE of Utah, Plaintiff and Appellee, v. Laura DABLE, Defendant and Appellant.
    No. 20020096-CA.
    Court of Appeals of Utah.
    Nov. 14, 2003.

      A.W. Lauritzen, Logan, for Appellant.
    Mark L. Shurtleff, Attorney General and Brett J. Delporto, Assistant Attorney General, Salt Lake City, for Appellee.
    Before DAVIS, GREENWOOD, and THORNE, JJ.
   OPINION (For Official Publication)

DAVIS, Judge:

T1 Laura Dable appeals the trial court's denial of her motion to suppress evidence on the grounds that the search warrant affidavit failed to establish probable cause. We reverse.

BACKGROUND

4 2 Sheriff's deputies from Lincoln County, Wyoming (Wyoming Deputies) received a tip from a confidential informant (Wyoming Informant) that Laura Dable was buying methamphetamine in Ogden, Utah to sell in Lincoln County, Wyoming. Acting on this tip and believing that Dable's vehicle traveled in excess of the speed limit, Wyoming Deputies executed a traffic stop of Dable. During a roadside search of the vehicle, they discovered methamphetamine. Dable admitted in her postarrest statements that she purchased the methamphetamine in Ogden, drove to her residence in Randolph, Rich County, Utah, and remained at her residence for a few hours before traveling to Lincoln County. Wyoming Deputies then gave that information to sheriffs deputies in Rich County, Utah (Utah Deputies).

[ 3 Utah Deputies then determined to seek a nighttime, no-knock search warrant to search Dable's residence in Randolph for illegal drugs using pre-printed forms for both the affidavit and the warrant. Utah Deputies stated in the affidavit that probable cause to search Dable's residence existed because (1) Wyoming Deputies arrested Dable for possession of methamphetamine; (2) Dable stopped at her home for a few hours after purchasing the methamphetamine; and (8) Threll Orton (Utah Informant) stated that he had purchased methamphetamine from Laura Dable on "at least two occasions." The affidavit omitted information known to Utah Deputies about Utah Informant's arrest and criminal activities, the date that information about his arrest and criminal activities was obtained from Utah Informant, and left entirely blank the sections that would justify a nighttime, no-knock search. Upon execution of the search warrant, police officers seized methamphetamine, marijuana, and drug paraphernalia. Defendant filed a motion to suppress the evidence seized from her residence on the ground that the affidavit failed to establish probable cause. Relying upon the details in the affidavit provided by Wyoming Deputies to Utah Deputies, the trial court denied Dable's motion. Dable subsequently entered a conditional guilty plea to two counts of possession or use of a controlled substance in violation of Utah Code Annotated section (2)(b)(®) (2002 & Supp.2008), a third degree felony, and Utah Code Annotated section 58-37-8@)(e) (2002), a class B misdemeanor. Under State v. Sery, 758 P.2d 935 (Utah Ct.App.1988), Dable appeals the trial court's denial of her motion to suppress.

ISSUE AND STANDARD OF REVIEW

%4 The issue we consider on appeal is whether the search warrant was supported by probable cause. "Upon appellate review, we examine the search warrant affidavit "in its entirety and in a common-sense fashion,' deferring to the magistrate's decision on whether the search warrant is supported by probable cause." State v. Purser, 828 P.2d 515, 517 (Utah Ct.App.1992) (citation omitted).

"[TJhis court, like the reviewing court below, is bound by the contents of the affidavit, we therefore need not defer to the trial court's finding. . .." Instead, " 'we make an independent review of the trial court's determination of the sufficiency of the written evidence'" "However, 'the [FJourth [AJmendment does not require that the reviewing court conduct a de novo review of the magistrate's probable cause determination[.] [Instead, it requires only that the reviewing court conclude "that the magistrate had a substantial basis for ... [determining] that probable cause existed."'" We therefore "pay great deference to the magistrate's determination."

State v. Saddler, 2008 UT App 82, ¶ 7, 67 P.3d 1025 (alterations in original) (citations omitted), cert. granted, 76 P.3d 691 (Utah 2003). Although the trial court focused upon information obtained from the Wyoming Deputies, we review the search warrant affidavit in its entirety.

ANALYSIS

15 "'Probable cause undoubtedly requires a nexus between suspected criminal activity and the place to be searched! In making a probable-cause determination, the issuing magistrate must examine the totality of the cireumstances set forth in the affidavit, including an informant's veracity and basis of knowledge." United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir.2000) (citations omitted). The totality of the cireumstances analysis provides a framework wherein a magistrate can "make a practical, common-sense decision whether, given all the cireumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).

T6 Furthermore, in Utah, when an informant is relied upon, "an analysis of the totality of the cireumstances requires us to consider the three factors articulated by this court in Kaysville City v. Mulcahy, 943 P.2d 231, 235-36 (Utah Ct.App.1997)[,]" State v. Saddler, 2008 UT App 82, ¶ 10, 67 P.3d 1025 (quotations and citations omitted), cert. granted, 76 P.3d 691 (Utah 2008), which are: (1) "the type of tip or informant[s] involved," Mulcahy, 943 P.2d at 235; (2) "whether the informant[s] gave enough detail about the observed criminal activity to support a [warrant]," id. at 286; and (8) whether police independently corroborated the informants' information. See id.

T7 To establish probable cause in this case, police officers relied upon the Wyoming Deputies, and the Utah Informant, who, at the time the warrant was prepared, was under arrest for posséssion of methamphetamine.

1% 8 We first examine the information provided by Wyoming Deputies We presume the reliability of the information provided by Wyoming Deputies. See State v. Nielson, 727 P.2d 188, 192 (Utah 1986) is a presumption that law enforcement officers will convey information to each other truthfully."). However, this information provides seant detail for a magistrate to determine that "there is a fair probability that contraband or evidence of a erime will be found in [Dable's residencel." Gates, 462 U.S. at 238, 103 S.Ct. at 2332. While Dable admitted to the Wyoming Deputies that she stopped at her residence for a few hours after purchasing drugs in Ogden, Utah, this admission, even when combined with the other statements, provides no " 'nexus between suspected criminal activity and the place to be searched" Dankauer, 229 F.3d at 1006 (citation omitted). Although Wyoming Informant's information turned out to be correct, the fact that Dable stopped at her residence before traveling to Lincoln County, Wyoming is apropos of nothing. Without more, Da-ble's statement to the Wyoming Deputies that she stopped at home before traveling to Lincoln County fails to establish probable cause that drugs were located at her home at the time the warrant was issued. See State v. Thurman, 846 P.2d 1256, 1261 (Utah 1993) (upholding search warrant affidavit because, inter alia, it created a sufficient nexus between the defendant and the commission of a crime).

%19 Thus, we turn our attention to an evaluation of the information provided by Utah Informant using the Mulcahy factors. See 943 P.2d at 235-36. Under the first Mulcahy factor, we examine "the type of tip or informant{s] involved." Id. at 285.

An informant's credibility is heightened when she provides detailed information based on personal observation, and when her statements are confirmed by police. By the same token, a police informant "who gains information through criminal activity or who is 'motivated ... by pecuniary gain[,] ... is lower on the reliability scale than a citizen-informant."

State v. McArthur, 2000 UT App 23, ¶ 31, 996 P.2d 555 (alterations in original) (citations omitted). In this case, the Utah Informant gave his statements to Utah Deputies after his arrest for possession of methamphetamine and marijuana. His statement that he had purchased methamphetamine from Dable's trailer "on at least two occasions" was nonspecific and general in nature. Although Utah Informant provided information based on personal observation, he obtained this information through criminal activity, and we measure his credibility "lower on the reliability scale than a citizen-informant." Id. (quotations and citations omitted).

$10 Additionally, the information regarding Utah Informant's arrest, as well as the date when he gave them the information, was omitted from the affidavit, depriving the magistrate of important information which might have assisted him in making an independent evaluation of the informant's credibility in this matter. "Police officers are obligated to demonstrate candor when seeking search warrants and failure to [fully disclose any conduct related to the search warrant request] to a magistrate may legitimately call into question [the] officer[s'] credibility." State v. Krukowski, 2002 UT App 433, ¶ 17, 62 P.3d 452, cert. granted, 70 P.3d 919 (Utah 2003). This candor is required by the Fourth Amendment to the United States Constitution. See Nielsen, 727 P.2d at 190 ("[A] search must be authorized by a warrant issued 'upon probable cause, [and] supported by Oath or affirmation ...'" (second and third alterations in original) (citation omitted)). If a police officer omits material information from the search warrant affidavit, "the affidavit must be evaluated to determine if it will support a finding of probable cause when the omitted information is inserted.... [I]f the omission ... materially affects the finding of probable cause, any evidence obtained under the improperly issued warrant must be suppressed." Id. at 191.

[ 11 An evaluation of the omitted information materially affects how we view the eredi-bility of Utah Deputies and the reliability of Utah Informant and the information. The Utah Deputies obtained information from Utah Informant over a month before the warrant was issued and after his arrest for methamphetamine and marijuana possession, and they omitted mention of these facts from the search warrant affidavit. The omitted information undermines the reliability of Utah Informant, because one " 'who gains information through eriminal activity or who is "motivated ... by pecuniary gain[,]" ... is lower on the reliability scale than a citizen-informant." McArthur, 2000 UT App 23 at ¶ 31 (alterations in original). Without information of Utah Informant's arrest, the magistrate in this case could not "determine, independently, how, or if, the prior conduct impacts a probable cause determination." Krukowski, 2002 UT App 433 at 114. Thus, when assessing the totality of the circumstances in this matter, we are unable to accord the Utah Deputies full eredibility or the Utah Informant any degree of reliability.

{12 "'The second Muleahy factor we must consider is whether "the informant[s] gave enough detail about the observed criminal activity to support a [warrant]."'" State v. Saddler, 2003 UT App 82, ¶ 20, 67 P.3d 1025 (second alteration in original) (citations omitted), cert. granted, 76 P.3d 691 (Utah 2003). The affidavit provides a "'bare bones'" sketch regarding Dable's criminal activity at her residence. Ilinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527 (1983). Utah Informant told Utah Deputies that he had purchased methamphetamine from Dable's residence on two occasions, without giving any information about the recency of the purchases. Without any mention of how recently Utah Informant purchased drugs from Dable's residence, there is no way to determine whether the information is stale. "The question that arises with staleness is whether 'so much time has elapsed that there is no longer probable cause to believe that the evidence is still at the targeted locale" State v. Decorso, 1999 UT 57, ¶ 60, 993 P.2d 837 (quoting State v. Thurman, 846 P.2d 1256, 1260 (Utah 1993)). Also, as we have said, the record shows that Utah Informant made his statement over a month before Utah Deputies obtained the search warrant, thus bolstering the contention that Utah Deputies relied upon stale information.

113 However, " ' "[where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant."'" State v. Singleton, 854 P.2d 1017, 1021 (Utah Ct.App.1993) (citations omitted). The information provided by Utah Informant fails to establish "activity of a protracted and continuous nature." Id. (quotations and citations omitted). In Singleton, the affidavit noted "facts indicating defendant was involved in continuous and ongoing criminal activity at defendant's residence." Id. The facts within the affidavit in Singleton noted that defendant had a substantial history of drug violations at her residence, police officers witnessed a known drug trafficker at defendant's residence, and police officers observed drug sales activity at the residence within one month of obtaining the search warrant. See id. In contrast, Utah Deputies in this case noted that Utah Informant had purchased methamphetamine from Da-ble's residence "on at least two occasions." Because the affidavit does not state when Utah Informant purchased the drugs and does not illustrate continuous criminal activity at the residence, we have no way to determine if "'so much time has elapsed that there is no longer probable cause to believe that the evidence is still at the targeted locale." Decorso, 1999 UT 57 at ¶ 60 (quoting Thurman, 846 P.2d at 1260).

4 14 Additionally, Utah Informant provided no information connecting the drugs purchased in Ogden, Utah, on June 6, 2000, to Dable's residence. See United States v. Lalor, 996 F.2d 1578, 1582-83 (dth Cir.1993) (ruling that probable cause to search defendant's residence was lacking where the affidavit failed to adequately explain the relationship between the defendant's residence and suspected drug activity). Based on the foregoing, we conclude that Utah Deputies provided a dearth of detail regarding any "observed eriminal activity to support a [warrant]" for Dable's residence. Saddler, 2003 UT App 82 at 120 (alteration in original) (quotations and citations omitted).

115 "'The final Mulcahy factor is whether the police officers] independently confirm[ed] the informants' information'" Id. at 122 (citations omitted). The affidavit reveals that the Utah Deputies confirmed only the existence and location of Dable's residence. "Corroboration 'means, in light of the circumstances, [the officer] confirms enough facts so that he may reasonably conclude that the information provided is reliable"" Id. (alteration in original) (citation omitted). Without more, a nonspecific, general statement from Utah Informant cannot support a probable cause determination that Dable would have drugs at her residence. Due to the lower reliability and veracity accorded to Utah Informant, more corroboration from the Utah Deputies was necessary.

T16 Examining the Mulcahy factors, see Kaysville City v. Mulcahy, 943 P.2d 231, 235-36 (Utah Ct.App.1997), under a totality of the cireumstances analysis, we conclude that the affidavit failed to establish probable cause that Dable possessed drugs within her residence. The information creating the only nexus between Dable's residence and drugs comes from Utah Informant, and we accord this information low reliability and credibility due to Utah Informant's arrest, and the concealment of the arrest and age of the information from the magistrate by Utah Deputies. While not fatal to the analysis, see Saddler, 2003 UT App 82 at ¶ 19 ("[Aln informant's veracity and reliability may be * "boosted by the detail with which the informant described his personal observation" of the [erime]'" (citation omitted) (final alteration in original)), the nonspecific, general statements of observed criminal activity at Dable's residence, and the failure of Utah Deputies to corroborate Utah Informant's information, lead us to conclude that under the totality of the cireumstances, the affidavit failed to establish probable cause of illegal activity within Dable's residence.

CONCLUSION

T17 Under the totality of the cireum-stances, we conclude that the affidavit failed to establish probable cause that illegal drugs were located in Dable's residence when the search warrant was issued. "Accordingly, we conclude that the trial court erred in denying defendant's motion to suppress the seized evidence. 'Since an error amounting to a violation of the federal constitution requires reversal unless it is harmless beyond a reasonable doubt, we reverse [Dable's] conviection[]'" State v. Saddler, 2003 UT App 82, ¶ 27, 67 P.3d 1025 (final alteration in original) (quoting State v. Droneburg, 781 P.2d 1303, 1306 (Utah Ct.App.1989)), cert. granted, 76 P.3d 691 (Utah 2003).

18 WE CONCUR: PAMELA T. GREENWOOD and WILLIAM A. THORNE JR., Judges.

      . Dable was probably not prejudiced by the nighttime, no-knock search warrant in this case because the search apparently occurred during daylight hours and when she was not home. See Salt Lake City v. Trujillo, 854 P.2d 603, 609 (Utah Ct.App.1993) (holding no prejudice by nighttime authorization of search warrant when search conducted during daylight). However, the fact that the magistrate authorized a nighttime, no-knock search warrant without ary information in the affidavit supporting such a warrant, speaks volumes about the level of scrutiny given the affidavit.


text:
    2003 UT App 397
    STATE of Utah, in the interest of F.C. III, a person under eighteen years of age. F.C. Jr., Appellant, v. State of Utah, Appellee.
    No. 20021059-CA.
    Court of Appeals of Utah.
    Nov. 21, 2003.
    Jeffrey J. Noland, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and John M. Peterson, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, Guardian Ad Litem.
    Before BILLINGS, Associate P.J., DAVIS and ORME, JJ.
   MEMORANDUM DECISION

DAVIS, Judge:

T1 F.C. Jr. (Father) appeals from a juvenile court decree permanently terminating his parental rights in F.C. III (Child). We affirm.

12 First, Father argues that by failing to decide the State's motion for no reunification services (the State's motion) prior to conducting the termination of parental rights hearing, the juvenile court erred because, in effect, it had not decided whether reunification services would be offered to Father. This argument is unsupported by the record and is without merit. The juvenile court had rendered a final determination about whether reunification services would be offered to Father before the State's motion was ever filed. At virtually every hearing, including those held prior to the State's motion, the juvenile court ordered that Father was allowed supervised visitation with Child, provided that he submitted himself to urine analysis tests and that the results of these tests indicated he was not using drugs. These orders amount to a final determination that limited reunification services were to be offered to Father. The State's motion did not alter the finality of this determination and, therefore, the juvenile court was not required to render a decision on the State's motion in order to have reached a final determination regarding reunification services.

' 3 Second, and based upon his first argument, Father argues that because the juvenile court failed to make a final determination regarding reunification services, it could not have properly held a permanency hearing. Because we have resolved Father's first argument by concluding that the juvenile court did make a final determination regarding reunification services, this argument fails.

14 Third, Father argues that the juvenile court erred by not holding a perma-nencey hearing, as required by statute. See Utah Code. Ann. § 78-82-312(1)(a), (b) (2002). The statute governing permanency hearings allows a juvenile court to consolidate a permanency hearing and a termination of parental rights hearing, see id. § 78-82-312(6)(c), which the juvenile court properly did in this case. Therefore, because the juvenile court held a permanency hearing, this argument also fails.

11 5 Fourth, Father argues that if the juvenile court had ruled on the State's motion, Father would have prevailed. Again, this argument is unsupported by the record and is without merit. The juvenile court did rule on the State's motion. Although the juvenile court did not include its ruling in the decree terminating Father's parental rights in Child, it did enter the following ruling in the minutes from the termination of parental rights hearing: "The [clourt hereby grants the petition for no reunification services...." In addition, Father's argument that he would have prevailed on the State's motion is in direct conflict with his failure to challenge the juvenile court's findings supporting four separate and independent grounds for termination of his parental rights in Child.

16 Finally, Father argues that the juvenile court erred by failing to enter a finding that the Division of Child and Family Services (DCFS) made reasonable efforts to provide reunification services to him prior to terminating his parental rights in Child, as required by statute. See Utah Code Ann. § (2002). The statute governing termination of parental rights provides that a juvenile court "may terminate all parental rights with respect to a parent if it finds any one of" the grounds listed in the statute. Id. § This statute further provides that if the juvenile court has ordered DCFS to provide reunification services to a parent, then the juvenile court must make a finding that DCFS "made reasonable efforts to provide those services" prior to terminating that parent's rights under "[slubsection (1)(b), (c), (d), (e), (£), or (b)" of the statute. Id. § 78-8a-407(8)(a). In this case, the juvenile court entered findings supporting four separate grounds for termination of Father's parental rights in Child. Any one of these grounds was sufficient, by itself, to justify termination of Father's parental rights in Child. See id. § 78-3a-407(1)(a)-(i). Although three of these grounds required a finding that DCFS made reasonable efforts to provide reunification services to Father prior to termination of his parental rights in Child, one of them-that Father had abandoned Child pursuant to subsection (1)(a)-did not. See id. § 78-Sa-407(1)(a), (8)(a). Therefore, contrary to Father's argument, the juvenile court was not required to enter a finding that DCFS made reasonable efforts to provide reunification services to Father prior to terminating his parental rights in Child. See id § 78-8a-407(8)(a).

17 Affirmed.

T8 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and GREGORY K. ORME, Judge.

      . The juvenile court held the State's motion hearing and the termination of parental rights bearing concurrently. Father argues that these hearings should not have been combined and cites to A.B. v. Christean in support of this argument. See 938 P.2d 811 (Utah Ct.App.1997). However, AE. does not stand for the general proposition that hearings in parental rights termination cases cannot be combined. Although 4.5. once stood for the proposition that a permanency hearing (previously called a dispositional review hearing) could not be combined with a termination of parental rights hearing, see id. at 814, it has since been superseded by statute. See Utah Code Ann. § 78-3a-312(6)(c) (2002) ("If a petition for termination of parental rights is filed prior to the date scheduled for a permanency hearing, the court may consolidate the hearing on termination of parental rights with the permanency hearing."). Therefore, Father's reliance upon A.B. is misplaced.

      . Father's argument characterizes one of the juvenile court's orders, dated July 26, 2002, as a "temporary order suspending reunification services." This order provided that "no reunification services shall be provided [to Father] other than [urine analysis] testing and visitation if [Father] is compliant with the drug testing." We disagree with Father's characterization of this order. By its terms, this order did not "suspend[ ] reunification services." Rather, the order reiterated the juvenile court's determination that limited reunification services were to be offered to Father.

      . As an alternative to this argument, Father argues that his due process rights were violated by the juvenile court's July 26, 2002 order, which was eniered after the dispositional hearing. In essence, Father argues that, if this order is deemed to be a final determination by the juvenile court "suspending reunification services," he should have been afforded "an opportunity to present evidence and argument" on this issue to the juvenile court before it revoked his right to reunification services. This argument fails for several reasons. First, we have already concluded that the juvenile court's order did not "suspend[ ] reunification services"; rather, it granted Father limited reunification services. Second, the record reveals that Father had the opportunity to present evidence and argument on this issue at the dispositional hearing. Finally, Father does not have a right to reunification services. See Uiah Code Ann. § 78-3a~-312(6)(a) (providing that "[nJothing in this section may be construed to ... entitle any parent to reunification services for any specified period of time").

      . The statute governing permanency hearings provides that "a permanency hearing shall be held," Uiah Code Ann. § 78-3a-312(1)(a), (b), and that it must be held within a certain amount of time, depending upon whether reunification services have been ordered. See id. (requiring permanency hearing to be held no later than twelve months after original removal of the child if reunification services have been ordered, or within thirty days of the dispositional hearing if reunification services have not been ordered).

      . Our review of the decree terminating Father's parental rights in Child reveals that, although it was not required to, the juvenile court did enter findings establishing that DCFS made reasonable efforts to provide reunification services to Father. At the same time, the juvenile court's unchallenged findings indicate that (1) Father failed to make "any efforts" to take advantage of the reunification services; (2) during the time between Child's adjudication and the termination of parental rights hearing, Father had no visits with Child because of his failure to comply with the requirements of the reunification services; and (3) Father's failure to utilize the reunification services resulted in him having "no relationship" with Child.


author: JACKSON, Presiding Judge:

text:
    2003 UT App 403
    LUTHERAN HIGH SCHOOL ASSOCIATION OF THE GREATER SALT LAKE AREA, a Utah non-profit corporation dba Salt Lake Lutheran High School, Plaintiff and Appellant, v. WOODLANDS III HOLDINGS, LLC, a Utah limited liability company; Bedford Property Investors, Inc., a Maryland corporation; JDJ Properties, Inc., a Utah corporation; The Woodlands Business Park Association, a Utah non-profit corporation; Wasatch Property Management, Inc., a Utah corporation; and John Does 1-1000, Defendants and Appellees.
    No. 20020808-CA.
    Court of Appeals of Utah.
    Nov. 21, 2003.

      Robert M. Taylor, Taylor Adams Lowe & Hutchinson, Salt Lake City, for Appellant.
    P. Bruce Badger, Diane H. Banks, and Matthew L. Anderson, Fabian & Clendenin, Salt Lake City, for Appellees.
    Before JACKSON, P.J., DAVIS and ORME, JJ.
   OPINION

JACKSON, Presiding Judge:

T1 Lutheran High School (Lutheran) appeals the district court's grant of summary judgment to Woodlands III Holding, LLC (Woodlands) and the district court's denial of Lutheran's summary judgment motion. We affirm.

BACKGROUND

¶2 In 1983, Woodlands Investment Co., a Utah limited partnership, owned a tract of land (Tract A) in Salt Lake City. Woodlands Associates (Associates), a Utah limited partnership, owned the tract (Tract B) immediately west of Tract A. In 1983, Woodlands Investment Co. and Associates entered into a Declaration of Easements, Covenants and Restrictions (the 1983 declaration). In the 1983 declaration, Woodlands Investment Co. and Associates granted reciprocal non-exclusive easements appurtenant to and across their respective tracts. The easement that benefits Tract B and burdens Tract A is the subject of this dispute. The 1983 declaration reads in part:

Woodlands grants to Associates a nonexclusive easement appurtenant to and across Tract A for the purpose of allowing vehicular access between the public streets and any and all parking areas or roadways and lanes situated on Tract B, provided, that the foregoing right of access shall be limited to use for such purposes and to such extent as may be customary for use of Tract B for commercial purposes (including, but not limited to, reasonable and customary deliveries).

The 1983 declaration further contemplates that the zoning for Tract B may change over time, that a building complex will be built on Tract B, including a theater-restaurant, a health club, a parking ramp with lower and upper levels, and parking areas and roadways. The 1983 declaration is for the benefit of the parties and their tenants, concessionaires, customers, invitees and guests.

T3 The development of Tract B proceeded, but with a lower density than originally contemplated by the 1983 declaration. Various entities developed office towers, parking structures, and a retail building.

{4 One of those entities, Woodlands IV Holdings, LLC., built an office tower on Tract C, immediately north of Tract B. Those traveling to Tract C frequently traveled over the easement across Tracts A and B to access Tract C. Further, a parking structure was also built on Tract C, and Grants of Easement were made to provide for use of the parking facility for Tract B tenants and invitees.

T5 In 1992, Lutheran, the plaintiff and appellant in this case, purchased Tract A. By 1999, Woodlands solely acquired all of Tract B, and acquired Tract C in conjunction with Woodlands IV Holdings, LLC. Lutheran filed suit in November 1996, alleging the easement was being overburdened. Both Lutheran and Woodlands filed motions for summary judgment. The district court denied Lutheran's motion and granted Woodlands's motion. However, in its order, the trial court enjoined all Tract C tenants from using the easement because Tract C clearly does not benefit from the easement granted in the 1983 declaration.

ISSUES AND STANDARDS OF REVIEW

T6 Lutheran challenges the district court's grant of summary judgment to Woodlands and the district court's denial of Lutheran's summary judgment motion.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). When reviewing a district court's denial of summary judgment, we grant no deference to the district court's legal conclusions and review them for correctness.

Schaerrer v. Stewart's Plaza Pharm., Inc., 2003 UT 43,¶ 14, 79 P.3d 922, 2008 Utah LEXIS 105.

ANALYSIS

T7 Lutheran argues the district court erred when it concluded as a matter of law that the dominant estate had not been expanded and that the easement had not been overburdened. It argues the dominant estate was in fact expanded because (1) Tract C was joined to Tract B, and Tract C's tenants routinely used the easement to access Tract C; and (2) because a parking structure, although used exclusively by Tract B tenants, was built on Tract C.

I. Tract C Use of the Easement

T8 We begin our discussion of Tract C use of the easement by noting that the district court already granted Lutheran injunctive relief requiring Woodlands to prohibit Tract C tenants and patrons from using the easement. Thus, Lutheran's challenge may best be characterized as a challenge to the adequacy of the remedy imposed by the district court. Lutheran challenges the form of the injunction on grounds that, when attempting to regulate traffic across the easement, it is impossible to distinguish between proper and improper use. Accordingly, Lutheran argues, the easement granted in the 1983 declaration ought to be extinguished altogether. See Jon W. Bruce & Lames W. Ely, Jr., The Law of Easements and Licenses in Land, § 10:26 (2001) ("[If] a court cannot separate the wrongful activity from appropriate usage for purposes of issuing an injunction ... [it] may declare the easement terminated. ...").

T9 However, Lutheran fails to demonstrate that the district court abused its discretion in issuing the injunction pursuant to its equitable powers. See Hunsaker v. Kersh, 1999 UT 106,¶ 6, 991 P.2d 67 (explaining that equitable powers give district court discretion in fashioning injunctive relief). Based on the record before us, we cannot say that the trial court is incapable of separating the proper from improper use of the easement, or that Woodlands cannot conform to the terms of the injunction by adequately regulating the easement's use. Lutheran's assertions to the contrary are unavailing, particularly where it argues for such an extreme remedy as the extinguishment of an easement. Thus, we conclude the district court's remedy is adequate and Lutheran's challenge fails.

II. Parking Structure

€10 Lutheran argues at least two reasons why the Tract C parking structure overburdens the easement. Lutheran argues an appurtenant easement cannot be used to serve a non-dominant estate. "The accepted rule is that the language of the grant is the measure and extent of the right created; and that the easement should be so construed as to burden the servient estate only to the degree necessary to satisfy the purpose described in the grant." Weggeland v. Ujifusa, 14 Utah 2d 364, 384 P.2d 590, 591 (1963).

T11 Lutheran cites, among other secondary sources, Jon W. Bruce & Lames W. Ely, Jr., The Law of Easements and Licenses in Land, § 8:11 (2001), which states, "[the dominant owner may not use an appurtenant easement to benefit any property other than the dominant estate. An attempted extension of the easement to serve nondominant land represents an overburden of the ser-vient tenement, regardless of the amount of usage." (Footnotes omitted.) That treatise further states, "(tlhe owner of a dominant estate may not extend the easement to accommodate land that the servitude was not originally intended to serve. Hence, an casement appurtenant does not benefit nondomi-nant land that the easement holder now owns or property that the easement holder may subsequently acquire." Id. § 2:8 (footnotes omitted). These sources, along with non-Utah authority, Lutheran argues, point to a bright-line rule that the owner of a dominant estate may not use an easement to cross the dominant estate in order to access a non-dominant estate, since the original grant did not intend the non-dominant estate to benefit from the easement. Such use, Lutheran argues, automatically overburdens the easement by improper use, regardless of the intensity of the improper use.

112 However, even if we acknowledged Lutheran's supposed bright-line rule, it would not apply here because present use of the easement is confined strictly to the benefit of Tract B. Although the parking structure is built on Tract C, it is used solely by tenants and patrons of Tract B, specifically those headed for Tower III. Thus, the easement is not being overburdened by use headed for a non-dominant parcel.

113 We need not resort to bright-line rules or other general easement principles, however, because the plain language of the 1983 declaration itself permits use of the easement "for such purposes and to such an extent as may be customary for use of Tract B." The parking structure, although situated on Tract C, unquestionably serves the "customary ... use" of Tract B.

1 14 Further, Lutheran cites us to a great deal of history surrounding the development of Tracts B and C. For example, the zoning authorities required, for development of Tower III on Tract B, that a parking structure be built on Tract C. This requirement, Lutheran argues, demonstrates that the development of Tract B went beyond what was contemplated in the 1983 declaration. The 1983 declaration contemplated some development of Tract B, Lutheran argues, but does not contemplate such intense development that Tract B's use of the easement would spill over to Tract C.

115 We are not persuaded that later municipal action with respect to the zoning and building permits on Tracts B and C relates to the intended scope of the 1983 declaration at the time of the grant. Such subsequent action has no bearing on what type and intensity of use the parties to the grant intended, nor does it indicate the actual amount of use of the easement. Rather, Utah law looks to the language of the grant, the cireumstances attending the transaction, the situation of the parties, the state of the thing granted, and the object to be obtained, construing the instrument most strongly against the grantor and most favorably to the grantee, to determine what use is permitted. See Wykoff v. Barton, 646 P.2d 756, 758 (Utah 1982). An overburdening of an easement by the dominant estate may only occur if use of the easement substantially increases use of the servient estate beyond that contemplated by the parties at the time of the grant. See Wood v. Ashby, 122 Utah 580, 253 P.2d 351, 854 (1952).

{16 The 1983 declaration itself contemplated a considerable amount of commercial development, much of which never transpired. The overall density of commercial development that actually occurred on Tract B is far less than that contemplated by the grant. Further, and more importantly, Lutheran did not present any evidence, giving rise to a genuine issue of material fact, that the actual use of the easement exceeded the use contemplated by the 1988 declaration.

T17 Thus, Lutheran's challenges fail because it has not demonstrated that Woodlands's use of the easement "result[ed] in a substantial increase in the use of the servient estate other than that contemplated by the parties at the time of the grant." Id.

CONCLUSION

1 18 The district court did not err in denying Lutheran's motion for summary judgment and granting Woodlands's motion for summary judgment because Woodlands did not overburden the easement. Tract C never properly benefitted from the easement, and the trial court properly enjoined use of the easement by Tract C tenants. The parking structure, while situated on Tract C, is used solely and strictly to benefit Tract B, a function contemplated by the language of the grant. The fact that municipal action may or may not have conditioned permission to build Tower III on the building of a parking strue-ture on Tract C does not require the conclusion that the easement is overburdened. Rather, the district court properly looked to the use contemplated in the grant itself. When looking to that intended use, the district court properly concluded that actual use did not overburden the easement. Accordingly, we affirm.

(19 WE CONCUR: JAMES Z. DAVIS and GREGORY K. ORME, Judges.

      . See Appendix, depicting the layout of the tracts, structures and rights of way at issue. This rendering is not to scale.

      . Our conclusion that the remedy is adequate based on the record before us should not be read to preclude the district court from revisiting its injunction if it determines, based on new evidence, that the injunction is inadequate or that conditions have sufficiently changed.

      . See section I, above.