author: DURRANT, Associate Chief Justice.

text:
    2003 UT 14
    ARMED FORCES INSURANCE EXCHANGE, a Kansas corporation, Plaintiff and Appellee, v. Judi HARRISON, an individual, Restoration Systems, Inc., a Utah corporation, and John Does 1-5, Defendants and Appellant.
    No. 990662.
    Supreme Court of Utah.
    April 25, 2003.

      Richard A. Van Wagoner, David L. Pink-ston, D. Jason Hawkins, Salt Lake City, for plaintiff.
    Joseph C. Rust, Salt Lake City, for defendant.
   DURRANT, Associate Chief Justice.

T1 In this appeal, we are called upon to review a trial court's finding of fraud against Judi Harrison, president of Restoration Systems, Inc. ("RSI"). Following a five-day bench trial, the trial court found RSI liable to Armed Forces Insurance Exchange ("AFIE") on several theories, including fraud, and awarded damages. Shortly after-wards, the trial court entered a judgment against Harrison, finding her personally liable to AFIE on the claim of fraud, and awarded damages. Only Harrison appeals from the court's judgment. She asserts numerous points of error in her attack on the trial court's conclusion that she is liable for fraud. We remand to the trial court for it to complete its findings of fact.

BACKGROUND

12 " 'On appeal from a bench trial, "[flindings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." We relate the facts accordingly, granting due deference to the trial court's resolution of factual disputes." Roderick v. Ricks, 2002 UT 84, 12, 54 P.3d 1119 (alteration in original) (quoting Tanner v. Carter, 2001 UT 18, ¶2, 20 P.3d 332 (quoting Utah R. Civ. P. 52(a))).

I. THE METCALF PROJECT

[ 3 On May 11, 19983, a fire occurred at the home of Colonel Donald and Sidella Metcalf. In extinguishing the fire, the fire department cut apart the roof and doused the house with water, causing water damage to the interior of the home. The Metecalfs, who held a first-party homeowner's insurance policy with AFIE, notified AFIE of their loss, After receiving this notification, AFIE retained a local adjusting company, C.W. Reese Co. ("Reese"), to serve as its agent for this claim.

T4 After consulting with Reese, Colonel Metcalf entered into a contract with RSI to do the restoration work. RSI was, at the time, a corporation engaged in the restoration of damaged homes and buildings. Harrison was the president, director, and sole shareholder of RSI. Initially, RSI estimated that it could restore the structure and contents of the Metcalfs'® home for $89,305.76. Subsequently, RSI submitted several additional estimates to AFIE through Reese, requesting payment for additional costs associated with the restoration of the Metcalfs home. In total, RSI billed AFIE $311,842.85 for work done on the Metcalfs® home. Of this billed amount, AFIE paid $272,638.17. In addition to the amount billed to AFIE, RSI billed the Metcalfs directly in the amount of $15,492.50 for certain upgrades RSI provided in addition to the restoration work. By combining RSI's billings to the Metcalfs and to AFIE, the trial court determined that RSI billed a total of $326,335.37 for restoration work on the Metcalfs® home.

T5 RSI submitted each of its estimates to Greg Peters, an adjustor for Reese, AFIE's local agent. After reviewing each estimate, Peters recommended that AFIE reimburse RSI for the full amount. AFIE requested Peters to review the amounts claimed on the February 1994 and July 1994 estimates and to check for duplications. Following his examination of the estimates and invoices provided by RSI, including three subcontractor invoices fabricated by RSI, Peters found no duplication and recommended that AFIE provide full payment. AFIE sent checks based on these recommendations. Additionally, three of AFIE's own employees also reviewed the RSI estimates and failed to discover any double billing, although one employee did discover a nine dollar mistake.

T6 Sometime in December 1994, RSI left the Metcalf job. However, some of the restoration work was not yet completed, so the Metcalfs retained other contractors to cor-reet and finish the restoration of their home. In February 1995, AFIE sued RSI and Harrison under several contract and tort theories.

1 7 During the initial discovery period, RSI claimed that several pertinent documents relating to the Metcalf project were taken in a burglary. These documents included a Job Cost Detail Report ("JCDR"), which was an internal document maintained by RSI for each of its projects to keep a record of the actual costs associated with that project. Though it claimed that certain source documents were lost as a result of the burglary, RSI was nevertheless able to recreate the JCDR in June 1995. AFIE contended that the burglary had been staged. During discovery, Harrison and RSI provided this recreated JCDR and the source documents they claimed to have used in the recreation process to AFIE by August 1995. No more than a month later, when it deposed Chris Stavheim, RSI's accounting clerk, AFIE knew that the JCDR was recreated. Harrison admitted that parts of the recreated JCDR were a "best-shot effort" based on a review of the information available to them at the time of the recreation. Three of the subcontractor invoices RSI provided AFIE in support of the JCDR were fabricated by RSL

II. PROCEEDINGS BEFORE THE TRIAL COURT

T8 On February 2, 1996, RSI and Harrison filed a motion for summary judgment against AFIE and for partial summary judgment against the Meteaifs. In this motion, RSI and Harrison argued that Harrison could not be held personally liable because she acted only in her capacity as president of RSI and was thus shielded by the corporate veil. Moreover, they asserted that no circumstances existed to justify piercing the corporate veil in order to hold Harrison liable under the equitable doctrine of alter ego. In response to this argument, AFIE and the Metcalfs contended that Harrison could be held liable for her own personal torts and that she had provided insufficient evidence to justify a grant of summary judgment in her favor on the alter ego theory. While the trial court ultimately denied RSI and Harrison's motion for summary judgment, it did conclude that "there [were] no genuine issues of material fact and defendant Judi Harrison [was] entitled to judgment as a matter of law on any claim or effort to pierce the corporate veil."

¶9 Following the five-day bench trial, held in March 1997, the court found RSI liable to AFIE under four different theories: fraud, breach of contract, unjust enrichment, and constructive trust. Prior to the trial court rendering judgment, Harrison filed a petition for bankruptey protection under Chapter 7 of the United States Bankruptey Code, which automatically stayed any legal proceeding and rendered the trial court unable to enter judgment against her. Subsequently, the bankruptey court entered an order modifying - the automatic stay, which allowed the trial court to enter its Findings of Fact and Conclusions of Law against Harrison.

10 In its Findings of Fact and Conclusions of Law, the trial court held Harrison liable for fraud only. It determined that she was jointly and severally liable with RSI to AFIE and the Metealfs in the amount of $143,056.82 for fraud. It also held Harrison jointly and severally liable with RSI to AFIE and the Metcalfs for their attorney fees and costs in the amount of $172,148.51. Additionally, the trial court found Harrison jointly and severally liable with RSI for expenses AFIE and the Metealfs incurred for services provided by construction and forensic accounting experts in the amount of $35,949. Finally, the trial court held Harrison jointly and severally liable with RSI for $5,000 in punitive damages to AFIE and $5,000 in damages to the Metcalfs for slander of title.

{11 Though the trial court held RSI and Harrison jointly and severally liable, only Harrison appealed the trial court's decision. On appeal, she argues that the trial court (1) erred in denying her motion for summary judgment, (2) erred in entering a judgment of fraud against her because AFIE failed to establish the elements of fraud by clear and convincing evidence, (8) erred in entering a judgment of fraud where the court's own findings insufficiently established the elements of fraud, (4) erred in basing its findings of fraud on a document prepared after litigation commenced, (5) erred in its measure of fraud-based damages, (6) erred in assessing the same damages against her that were assessed against RSI even though she was found liable for fraud only, (7) erred in awarding attorney fees against her, (8) erred in failing to apportion attorney fees among the various causes of action, (9) erred in assessing against her AFIE's expense of retaining and consulting experts, and (10) erred in awarding expert expenses to AFIE absent compliance with Utah Rule of Civil Procedure 54(d)(2).

« 12 We have jurisdiction to hear this matter pursuant to Utah Code Ann. § 78-2-2(8)(J) (2002).

ANALYSIS

I. THE FRAUD ALLEGATIONS IN THE COMPLAINT

113 We first review the trial court's refusal to grant Harrison's motion for summary judgment. "A trial court's decision to grant or deny a motion for summary judgment is a legal one and will be reviewed for correctness. Therefore, [this issue] will be, reviewed de novo, giving no deference to the trial court's conclusions." Salt Lake City v. Silver Fork Pipeline Corp., 918 P.2d 781, 733 (Utah 1995) (citations omitted).

4 14 Prior to trial, Harrison filed a motion for summary judgment claiming, among other things, that AFIE's complaint failed to plead fraud with the factual particularity required by rule 9(b) of the Utah Rules of Civil Procedure. She now asserts that the denial of the motion was error. She argues that AFIE failed to plead fraud with particularity in its complaint against her because it focused on RSI's actions, not hers. Furthermore, she argues that any attempt in the complaint to "piggy-back" liability onto her by virtue of her corporate responsibilities should have failed absent an alter ego allegation.

€ 15 AFIE responds that its complaint was sufficiently particular to comply with rule 9(b). Specifically, AFIE argues that it was only obligated to plead the elements and basic facts of the fraud to satisfy the particularity requirement. Additionally, AFIE asserts that it properly pleaded fraud in its complaint because Harrison is personally liable for fraudulent acts that she herself committed or that others committed at her direction.

A. Pleading Fraud with Particularity

116 Rule 9(b) of the Utah Rules of Civil Procedure specifies that "[in all aver-ments of fraud or mistake, the cireumstances constituting fraud or mistake shall be stated with particularity." The elements that a party must allege "to bring a claim sounding in fraud" are

(1) that a representation was made (2) concerning a presently existing material fact (8) which was false and (4) which the representor either (a) knew to be false or (b) made recklessly, knowing that there was insufficient knowledge upon which to base such a representation, (5) for the purpose of inducing the other party to act upon it and (6) that the other party, acting - reasonably and in ignorance of its falsity, (7) did in fact rely upon it (8) and was thereby induced to act (9) to that party's injury and damage.

Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1066-67 (Utah 1996) (citations omitted); Educators Mut. Ins. Ass'n. v. Allied Prop. & Cas. Ins. Co., 890 P.2d 1029, 1032 (Utah 1995); accord Crookston v. Fire Ins. Exch., 817 P.2d 789, 800 (Utah 1991). However, the mere recitation by a plaintiff of the elements of fraud in a complaint does not satisfy the particularity requirement. In other fraud cases, " '[wle have stressed, and continue to hold, that mere conclusory allegations in a pleading, unsupported by a recitation of relevant surrounding facts, are insufficient to preclude ... summary judgment.'" Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶36, 21 P.3d 198 (quoting Chapman v. Primary Children's Hosp., 784 P2d 1181, 1186 (Utah 1989). The relevant surrounding facts " 'must be set forth with sufficient particularity to show what facts are claimed to constitute such charges." Williams v. State Form Ins. Co., 656 P.2d 966, 971 (Utah 1982) (quoting Heathman v. Hatch, 13 Utah 2d 266, 268, 372 P.2d 990, 991 (1962)).

117 AFIE failed, however, to allege in its complaint relevant facts supporting its claim that Harrison personally committed or participated in any fraudulent acts. In its complaint, AFIE's first claim for relief was fraud. This section of its complaint contains only two paragraphs, which allege as follows:

33. Defendants made false representations concerning present existing material facts, which representations they either knew to be false or were made recklessly, and defendants omitted material facts despite their duty fully to disclose, all for the purpose of inducing action on the part of plaintiff.
34. Plaintiff actually and justifiably relied upon the false representations and material omissions to its injury and detriment, in an amount to be determined at trial.

These paragraphs merely recite the elements of fraud, however, and, as we have already noted, such conclusory allegations alone fail to allege fraud with sufficient particularity. See Franco, 2001 UT 25 at ¶36, 21 P.3d 198.

{ 18 Even if we examine the complaint as a whole, it fails to recite any relevant facts connecting Harrison personally to the alleged fraud. The complaint mentions several examples of RSI's representations, but it contains nothing regarding Harrison personally making or directing others to make these representations. The only time Harrison is mentioned in the complaint at all is in one of the complaint's opening paragraphs, where she is identified as one of the parties. There she is listed as the "President and owner of RSI ... [who] is responsible for the entire business operation of RSI, oversees and is responsible for its billing practices and is personally responsible to see that the project referenced herein is and was handled professionally, honestly and with the utmost care." This allegation may be a relevant fact, but it is insufficient to support fraud liability absent other facts linking Harrison directly to the fraud.

B. Harrison's Personal Liability for Fraud

19 Initially, we note that "(aln officer or director of a corporation is not personally liable for torts of the corporation or of its other officers and agents merely by virtue of holding corporate office, but can only incur personal liability by participating in the wrongful activity." 3A William Meade Fletcher, Fletcher Cyclopedia of the Law of Private Corporations § 1187, at 209 (rev. ed.2002). When fraud is alleged, "a director or officer of a corporation is individually liable for fraudulent acts or false representations of his own or in which he participates, even though his action in such respect may be in furtherance of the corporate business." 37 Am.Jur.2d Fraud and Deceit § 322 (1968) (emphasis added).

T20 Other states, considering the issue of corporate officer liability, have found that an officer cannot hide his or her own fraudulent acts behind the corporate veil. For example, Colorado courts hold that "[to permit an agent of a corporation, in carrying on its business, to inflict wrong and injuries upon others, and then shield himself from liability behind his viearious character, would often both sanction and encourage the perpetration of flagrant and wanton injuries by agents of insolvent and irresponsible corporations." Snowden v. Taggart, 91 Colo. 525, 17 P.2d 305, 807 (1982) (citation omitted). In Mecham v. Benson, 590 P.2d 304, 308 (Utah 1979), this court noted that a defendant, by attempting to hide behind the corporate entity, "would not exculpate himself by proving that he was acting as agent of a corporation; he would only additionally inculpate his corporate principal." Thus, Harrison can be held liable for fraudulent acts that she personally committed or in which she participated, but she cannot be held liable for fraudulent acts that she did not know of or participate in that were committed by other agents of the corporation or by the corporation itself.

T21 Harrison's position as a corporate officer whose duties generally included overseeing the business activities of the corporation does not alone establish facts supporting a claim that she is personally liable for fraud. However, in the complaint, this is the only fact pleaded to inculpate Harrison in RSI's fraudulent activities. In its memorandum in opposition to RSI and Harrison's motion for summary judgment, AFIE had the opportunity to allege additional facts establishing Harrison's personal involvement in RSI's fraud. However, the additional facts contained in AFIE's memorandum focus exclusively on RSI's actions and do not supply any information regarding Harrison's personal participation in fraud. Standing alone, AFIE's complaint fails to allege fraud against Harrison with the particularity required by rule 9(b). Because AFIE failed to allege facts in its complaint supporting its claim that Harrison personally committed fraud or that she personally directed any fraud committed by RSI, the trial court erred in failing to grant the motion for summary judgment.

C. Failure to Grant Summary Judgment Was Harmless Error in this Case

122 We next consider whether this error was harmless. "If the error was harmless, that is, if the error was sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the case, then a reversal is not in order." Price v. Armour, 949 P.2d 1251, 1255 (Utah 1997) (citing State v. Robertson, 982 P.2d 1219, 1227 (Utah 1997)); see also Utah R. Civ. P. 61 ("[Nlo error or defect in any ruling or order ... by the court ... is ground for granting a new trial or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice."). In State v. Germonto, 868 P.2d 50, 57-58 (Utah 1998), a criminal case, the defendant argued that the trial court inappropriately denied a motion to modify an information and allowed the trial to go forward on a technically deficient charging statement. We held that "we will look to see whether the error, if any, should have been obvious and whether it was cured procedurally and thereby rendered harmless." Id. at 58. In effect, we are dealing with the same situation in the instant case.

[ 28 Since AFIE's complaint failed to plead fraud with particularity, the trial court should have granted summary judgment for Harrison and dismissed the case. However, it is unlikely that the trial court's failure to take this action affected the outcome. According to rule 15(a) of the Utah Rules of Civil Procedure, "a party may amend his pleading ... by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Utah R. Civ. P. 15(a). AFIE indicated in its oral argument that it would have moved to amend its complaint had the complaint been dismissed. Under our rule, the trial court is obligated to freely allow motions to amend. Indeed, some jurisdictions hold that it is an abuse of discretion to deny such a motion. See Caputo v. Pfizer, Inc., 267 F.3d 181, 191 (24 Cir.2001) (holding plaintiff should have been allowed to amend complaint to plead fraud with the particularity required by rule 9(b) of the Federal Rules of Civil Procedure). Therefore, it is unlikely that the trial court's error affected the outcome of this case.

124 In addition, rule 15(b) of the Utah Rules of Civil Procedure, which provides for amendment of the pleadings to conform to the evidence, furnishes the procedural cure to the trial court's error. It states that

[when issues not raised by the pleading are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

Utah R. Civ. P. 15(b). AFIE presented evidence at trial concerning Harrison's personal participation in fraud. Harrison responded by presenting evidence in her own defense on this issue. Since Harrison knew about the fraud allegations against her and was able to present her own evidence at trial to challenge those allegations, she was not prejudiced by the technical failings of AFIE's pleadings. While AFIE, in fact, made no motion to amend its complaint to conform to the evidence, "[the failure of the trial court to fully amend the pleadings to this effect is non-prejudicial." Seamons v. Andersen, 122 Utah 497, 502, 252 P.2d 209, 212 (1952). Because the issue was tried, it must be treated as if it were properly raised in the pleadings.

125 This result "is much preferred to the alternative of dismissal, especially where a trial has proceeded to conclusion on the existing pleadings and where the defendant has suffered no prejudice by reason of any deficiency in the pleadings." Gil v. Timm, 720 P.2d 1352, 1358 (Utah 1986). Thus, though the trial court erred in denying Harrison's motion for summary judgment, this error does not require us to overturn the result of the trial. It is not reasonably likely, given the amendment procedure in rule 15(a), that the trial court's error would have affected the outcome of the case. Accordingly, Harrison has suffered no prejudice because of the deficiency of the pleadings. Since the court's error was harmless, we now review Harrison's other claims of error.

IIL THE TRIAL COURTS FINDINGS OF FACT

126 Next, we turn to Harrison's arguments that the evidence presented at trial was insufficient to support the trial court's findings of fact and that the findings of fact are inadequate to support the court's conclusion that Harrison is liable for fraud. "The findings and judgment should not be disturbed unless this court can say affirmatively and with some degree of assurance that there is no reasonable basis in the evidence that could fairly and rationally support the requisite degree of proof, ie., by clear and convincing evidence." Lamb v. Bangart, 525 P.2d 602, 609 (Utah 1974).

T27 "A finding of fraud must be based on the existence of all its essential elements.... '[Fjraud is a wrong of such nature that it must be shown by clear and convincing proof and will not lie in mere suspicion or innuendo." Taylor v. Gasor, Inc., 607 P.2d 298, 294-95 (Utah 1980) (internal citations omitted) (quoting Lundstrom v. Radio Corp. of Am., 17 Utah 2d 114, 117-18, 405 P.2d 389, 341 (1965). Thus, to prevail against Harrison in this case, AFIE was required to present evidence that clearly and convincingly established every essential element of fraud. The trial court then had the obligation to make findings of fact regarding the essential elements of fraud that could be reviewed on appeal to determine both the adequacy of the evidence and the correctness of the court's ultimate conclusion of fraud. See Utah R. Civ. P. 52 (requiring "[in all actions tried upon the facts without a jury ..., the court shall find the facts specially and state separately its conclusions of law thereon"). Moreover, such factual findings must be complete and detailed. In this case, the trial court's findings of fact are inadequate for us to properly address the sufficiency of the evidence or the correctness of the trial court's conclusion that Harrison is Hable for fraud.

128 For findings of fact to be adequate, they "must show that the court's judgment or decree 'follows logically from, and is supported by, the evidence' The findings 'should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached." Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987) (emphasis added) (citations omitted). When the findings of fact are incomplete in. fraud cases, we cannot adequately review the trial court's decision without overstepping our appellate authority and usurping the fact-finding responsibilities of the trial court,. Thus, we have specified that

[lf the findings of fact in a case are incomplete, the [reviewing] court may order the trial court ... to supplement, modify, or complete the findings to make them conform to the issues presented and the facts as found from the evidence and may direct the trial court ... to enter judgment in accordance with the findings as revised.

Utah R.App. P. 80(a); see also 5 Am.Jur.2d Appellate Review § 688 (1995) ("[A] remand is necessary where the appellate court cannot get a clear understanding of the basis of the trial court's judgment from its findings."). When such a remand is ordered, "the entry of proper findings of fact and conclusions of law would be all that is required of the trial court." Acton, 737 P.2d at 999. "[Thhe trial court may rely on the record of the original trial, provided there was full opportunity to present evidence, and no error in the exclusion or admission of evidence occurred." 5 Am.Jur.2d Appellate Review § 665.

1 29 The trial court's Findings of Fact and Conclusions of Law is a forty-four page document that includes 115 paragraphs, several of which contain multiple subparagraphs. The findings in the document foeus on how RSI mishandled the project, provided unsatisfactory and unworkmanlike work, and made fraudulent representations to AFIE. For these acts, the trial court held RSI Hable to AFIE for fraud, breach of contract, unjust enrichment, and constructive trust. RSI does not appeal the trial court's decision.

30 Concerning Harrison's participation in fraud, the findings of fact section leaves much to be desired. It identifies Harrison as the president of RSI and states that she was "in charge of and directed] the day-to-day operations of RSI." It states that Harrison did not have power of attorney from the Metcalfs and that she encouraged her employees to make a thirty-five percent profit. It states that Harrison authorized and approved the fabrication of three subcontractor invoices. -It also states that she directed and supervised the recreation of the JCDR. These facts alone are not sufficient to support a conclusion that Harrison is liable for fraud.

{31 In its conclusions of law section, the trial court includes additional findings of fact concerning Harrison. After listing examples of RSI's misconduct for five pages, the trial court makes the broad conclusion that "[vlir-tually all of the foregoing was done with the knowledge of or under the direction of defendant Judi Harrison." From this key finding, the trial court makes a legal conclusion that "the evidence of fraudulent intent to make the many misrepresentations and omissions satisfies the clear and convincing evidence standard." After coming to this conclusion, the trial court includes the following summary:

AFIE and the Metcalfs actually and Justifiably relied upon the false representations and material omissions to their injury and detriment. RSI and Ms. Harrison sent out billings which they expected to induce reliance and payment. They made representations to Mr. Peters and AFIE concerning the work that was done and the amounts due and owing. They reassured Mr. Peters and AFIE, They supplied invoices, expecting to induce reliance.

Although these findings are significant, they are inadequate and incomplete in several respects.

132 First, they are inadequate because we are unable to examine whether sufficient evidence existed at trial to support a finding that "virtually all" of RSI's misconduct was known to or directed by Harrison. In order to hold Harrison liable for fraud, we must know specifically what representations she made or directed others to make. While the trial court found that Harrison participated in the recreation of the JCDR and directed the fabrication of some subcontractor invoices, they are only two actions in a long list of RSI's misconduct. By itself the finding that Harrison knew of or directed virtually all of RSI's actions does not provide sufficient detail to support the conclusion that Harrison is liable for fraud. Furthermore, some of RSI's listed misconduct constitutes nothing more than poor workmanship, and it would be relevant only to the breach of contract claim. As such it would be unrelated to Harrison's liability for fraud. Other conduct set forth in the findings of fact supports the conclusion that RSI committed fraud, but it may not be relevant to the finding that Harrison is liable for fraud. Because the trial court did not specify all of the representations that Harrison specifically participated in or directed, we cannot address Harrison's argument that the evidence was inadequate without making our own findings of fact identifying precisely which of Harrison's actions supported the conclusion that she is liable for fraud. Since it is not within our realm of authority to make such findings, we remand the case back to the trial court to make these specific findings.

{33 Second, the findings are incomplete because they do not address each element of fraud as to any one of the identified representations. Absent such findings, we cannot determine, without making certain assumptions, whether the trial court appropriately held Harrison liable for fraud. There are simply no findings on any representation to AFIE for which it appears all the essential elements of fraud have been found. Besides the JCDR and the three invoices, there are no specific findings on other representations Harrison may have participated in-only a general conclusion that she knew of or directed virtually all of RSI's actions. Second, there are no findings that AFIE relied on the specific representations in which Harrison participated. Finally, there are no specific findings on Harrison's fraudulent intent, that is, whether she knew the representations were false or made them recklessly for the purpose of inducing action, as to each of the representations in which she participated. Therefore, before Harrison can be held liable for fraud, the trial court must determine whether these specific findings can be made from the evidence presented at trial.

134 No fraud liability can rest on the specific finding that Harrison participated in the recreation of the JCDR because one critical element is missing-reliance. "While the question of reasonable reliance is usually a matter within the province of the jury, there are instances where courts may conclude that, as a matter of law, there was no reasonable reliance." Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1067 (Utah 1996) (citation omitted). If a party learns that the representation is not accurate, continued reliance on that representation is unreasonable. Id. at 1068. Here there is ample evidence that AFIE knew the JCDR was not accurate and did not rely on it.

¶35 First, AFIE could not have relied on the recreated JCDR to its detriment because it was not even made available to AFIE until after litigation commenced. AFIE made its last payment based on RSI's estimates prior to the commencement of this lawsuit and its receipt of the recreated JCDR. AFIE filed its complaint in February 1995. RSI recreated the JCDR in June 1995 and provided it to AFIE as part of discovery shortly after-wards. By September 1995, AFIE knew that the JCDR was a recreation. During this time, AFIE incurred no injury based on the recreated JCDR because AFIE had already made all of the payments to RSI that constituted its claimed injury in this case. Hence, it did not rely on the recreated JCDR to its detriment.

{36 In addition, when it received the recreated JCDR, AFIE knew that RSI claimed that the original JCDR and critical documents necessary to replicate it were taken in a burglary. To uncover how RSI recreated the JCDR, AFIE questioned RSI employees and requested that Harrison provide an affidavit explaining how the JCDR was recreated. As the findings of fact and the trial evidence demonstrate, Harrison submitted an affidavit prior to trial explaining the method by which the JCDR was recreated. At trial, she admitted that the JCDR contained inaccuracies and guesses. AFIE brought in a forensic accountant who testified at trial about the inaccuracy of the JCDR. AFIE doubted the accuracy of the recreated JCDR from the beginning and knew from Harrison herself that it contained inaccuracies. Because AFIE knew that the recreated JCDR contained inaccuracies and in no way relied on it, the JCDR does not constitute a misrepresentation for purposes of establishing fraud against Harrison.

37 Because the trial court did not make appropriate and specific findings as to (1) which representations Harrison personally participated in or directed, (2) whether AFIE actually relied on these specific representations, and (8) whether Harrison knew they were false or recklessly made these representations, the findings of fact lack sufficient detail to allow us to review the trial court's decision. The absence of these findings by the trial court "is a fundamental defect that makes it impossible to review the issues that were briefed without invading the trial court's fact-finding domain." Acton, 787 P.2d at 999. This fundamental defect prevents us from proceeding forward and requires us to remand this case to the trial court to complete the findings of fact and to conduct further proceedings if necessary.

III. HARRISON'S REMAINING CLAIMS

¶38 Because we remand this case for the trial court to complete its findings on the essential elements of fraud and to determine whether those findings support a conclusion that Harrison is liable for fraud, we need not reach the other issues Harrison raises on appeal. However, in the interest of judicial economy, "a brief discussion of these issues is appropriate as guidance for the trial court on remand." Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107, ¶55, 37 P.3d 1180 (citing Buzas Baseball, Inc. v. Salt Lake Trappers, Inc., 925 P.2d 941, 949 (Utah 1996)).

T39 First, Harrison claims that the trial court erred in its measure of fraud-based damages and in assessing against her the same amount of damages as was awarded against RSI. We note that AFIE waives recovery from Harrison for all but $57,607.85 of the trial court's award. See Appellee's Brief at 61 n. 15. Whether Harrison is liable for any of this amount can only be determined after the trial court completes its findings of fact on remand. Accordingly, we decline to address the issue. However, there was some dispute regarding the method used by the trial court to determine fraud-based damages. Therefore, if the trial court still concludes that Harrison is liable for fraud, we direct the trial court to explicitly state the method used to determine fraud-based damages when it revisits this issue.

1 40 Second, Harrison also claims that the trial court erred in awarding AFIE attorney fees and in failing to apportion attorney fees between causes of action. These two points of error are moot, however, because AFIE has waived its claim to recovery of its attorney fees in this case and is no longer seeking those amounts. See id. at 65.

{41 Finally, Harrison argues that the trial court improperly assessed against her $35,959.00 for costs incurred by AFIE for accounting and construction experts and that even if it was appropriate to award these costs, the trial court failed to comply with the procedural requirements of rule 54(d) of the Utah Rules of Civil Procedure before assessing these costs. AFIE argues that the trial court properly awarded the expert fees as an element of fraud damages since Harrison, by committing fraud, made it necessary for AFIE to go to the extra expense of hiring the experts. "[A] trial court's decision to award the prevailing party its costs will be reviewed under an abuse of discretion standard." Young v. State, 2000 UT 91, ¶4, 16 P.3d 549 (footnote and citations omitted). If the trial court completes its findings and concludes Harrison is liable for fraud, the trial court will also need to decide whether to award expert witness fees as an element of fraud-based damages. "[TJlo provide guidance to the trial court on remand[,] ... we simply set forth the applicable law." See Buzas Baseball, 925 P.2d at 949.

142 A prevailing party's costs may be recovered under rule 54(d)(1) of the Utah Rules of Civil Procedure. The Utah Code also expressly provides for witness fees to "be taxed as costs against the losing party" in civil cases. Utah Code Ann. § 78-46-30 (2002). We have held, however, that only the statutory witness fee may be taxed as costs against the losing party. Young, 2000 UT 91 at ¶15, 16 P.3d 549 (citing Frampton v. Wilson, 605 P.2d 771, 774 (Utah 1980)). The statutory witness fee is limited. to a stated daily rate plus reimbursement for mileage traveled "in going only." Utah Code Ann. § 78-46-28 (2002). We have also held that "Itlhere is a distinction to be understood between the legitimate and taxable "costs and other 'expenses,' of litigation which may be ever so necessary, but are not properly taxable as costs." Frampton, 605 P.2d at 774A. In Young, we held that "[alny amount paid [for a witness] over the statutory allowance is an expense of litigation, rather than a taxable cost, and not recoverable." 2000 UT 91 at T 18, 16 P.3d 549.

$48 Nevertheless, AFIE argues that the award of expert witness fees should stand because the trial court awarded them as an'element of fraud-based damages. It relies on Dugan v. Jones, 615 P.2d 1239 (Utah 1980), in which we held that " 'the defrauded party may recover any additional damages which are a natural and proximate consequence of the defendant's misrepresentations.'" Id. at 1250 (citations omitted). AFIE argues that it would not have had to consult the forensic accountant and the construction expert but for Harrison's destruction of evidence. While the trial court may exercise reasonable discretion regarding the allowance of certain costs, see Morgan v. Morgan, 795 P.2d 684, 686 (Utah Ct.App.1990) (citation omitted), "expert witnesses cannot be awarded extra compensation unless the statute expressly so provides," Frampton, 605 P.2d at 774. No Utah statute provides for extra compensation to expert witnesses in fraud cases. In Young, we made it clear that "even if necessary, fees paid over the amount allowed by statute are not properly taxable as costs, and are therefore not recoverable." 2000 UT 91 at 116, 16 P.3d 549 (emphasis added). If, on remand, the trial court needs to decide the appropriate amount to award for expert witness fees, the amount awarded should be limited to that allowed by statute.

CONCLUSION

44 Although AFIE failed to plead fraud with the requisite particularity in its complaint, that error is harmless because it is not reasonably likely that the error changed the outcome of the case. Rule 15(a) allows for complaints to be freely amended prior to trial, and rule 15(b) allows for the amendment of pleadings to conform to evidence presented at trial. However, focusing solely and specifically on the trial court's findings of fact concerning Harrison's personal participation in fraud, we conclude that those findings are insufficient to allow us to properly review the adequacy of the evidence or the correctness of the trial court's conclusion that Harrison is liable for fraud. We determine as a matter of law, however, that no fraud liability can rest on the recreated JCDR. Therefore, we remand this case back to the trial court for entry of further findings of fact regarding the essential elements of fraud to support Harrison's personal liability in accordance with this opinion, or for further proceedings consistent with this opinion.

{45 Chief Justice DURHAM, Justice RUSSON, Justice WILKINS, and Judge BILLINGS coneur in Associate Chief Justice DURRANT's opinion.

146 Justice HOWE did not participate herein; Court of Appeals Judge JUDITH M. BILLINGS sat.

      . The Metcalfs paid $10,000 to RSI in advance for upgrade work. RSI credited the advance towards the $15,492.50, leaving $5,492.50 unpaid.

      . This is the number contained in the trial court's findings of fact. It includes a slight mathematical error, however. If we add the amount the trial court found RSI billed the Met-calfs to the amount the trial court found RSI billed AFIE, this figure should actually equal $326,835.35. The difference between these two numbers is minimal, only $499.98, and on remand the trial court should determine which figure is accurate.

      . The trial court did not identify in its Findings of Fact and Conclusions of Law what method it used to reach its determination of the amount of fraud-based damages.

      . In its complaint and throughout the entirety of this case, AFIE centered its arguments on common law fraud.

      . Rules 9(b) and 15(a) of the Utah Rules of Civil Procedure are substantially identical to rules 9(b) and 15(a) of the Federal Rules of Civil Procedure. Thus, federal case law, though not binding, may guide our interpretation of these rules.

      . Rule 54(d)(1) states as follows: "Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party." Utah R. Civ. P. 54(d)(1).


source: Caselaw Access Project

author: DURHAM, Chief Justice:

license: Public Domain

text:
    2003 UT 16
    Robert BRADLEY, Joyce Bradley, R. Dale Whitelock, Karma Whitelock, Louis Peterson, and Barbara Peterson, Plaintiffs and Petitioners, v. PAYSON CITY CORPORATION, Defendant and Respondent.
    No. 20010233.
    Supreme Court of Utah.
    May 2, 2003.

      Seott L. Wiggins, Mark E. Arnold, Salt Lake City, for petitioners.
    Jody K. Burnett, Salt Lake City, David C. Tuckett, Payson, for respondent.
   DURHAM, Chief Justice:

INTRODUCTION

T1 This case arises from the decision of the Payson City Council (Payson City or City Council) to deny Plaintiffs' two applications to rezone property within Payson City (the property) from R-1-A low density residential/agricultural use to R-2-75 high density residential use. The trial court determined that Payson City's decision was arbitrary and capricious because it was not supported by "substantial evidence." The court of appeals reversed the decision of the trial court, holding that application of the "substantial evidence" standard was erroneous because Pay-son City's zoning decision was a legislative decision. Bradley v. Payson City, 2001 UT App 9, ¶ 28, 17 P.3d 1160. Under the court of appeals' view of the arbitrary and capricious standard, only quasi-judicial or administrative decisions are subject to the "substantial evidence" standard while legislative decisions are subject to the more deferential "reasonably debatable" standard.

BACKGROUND

T2 The Plaintiffs below are owners of property in Payson City zoned as R-1-A, which is a low-density residential zone. The property is located west of Interstate 15 (I-15) and is surrounded by property that is also zoned R-1-A. Some two and one-half blocks east of the property is a large area of land that is zoned R-2-75, which is the same zoning designation the Plaintiffs seek. The 1995 Payson City General Plan (General Plan), which was in effect at the time the Plaintiffs sought rezoning, forecasts primarily residential land use east of I-15 and industrial and agricultural uses for property west of I-15. While the intent of the General Plan seems to be to utilize I-15 as a natural buffer between residential and industrial uses, the Payson Planning Zone Map (Payson Zone Map), also adopted in 1995, does provide for some areas of residential use west of I-15.

T3 In January 1996, the Plaintiffs applied to rezone their property from R-1-A to R-2-75, which is a residential zoning designation that permits multiple family dwellings. During a meeting before the Payson City Planning Commission (Planning Commission) on the issue of the rezone application, the Chairperson acknowledged that because "there are already other residential developments in the surrounding area where this rezone would take place, there may not be a problem in rezoning this to R-2-75." After considering the Plaintiffs' R-2-75 rezone application, the Planning Commission Staff Report recommended that the Planning Commission recommend approval of the rezone to the Pay-son City Council.

T4 At the public hearing before the Planning Commission on Plaintiffs' rezone application, a petition signed by thirty-eight people was submitted by a neighborhood group that opposed the zoning change. In addition, thirteen individuals at the hearing expressed their opposition to the R-2-75 rezone. The public opposition voiced concerns over the adequacy of the area's infrastructure as well as concerns about maintaining the agricultural nature of the area, which includes using the land for raising horses. Several public comments also supported the rezone. After public comment, the Planning Commission recommended that the Payson City Council deny the R-2-75 rezone.

T5 The City Council then held a public hearing on the R-2-75 rezone application. The same thirty-eight signature petition was submitted to the City Council, and, subject to one or two exceptions, the same individuals appeared before the City Council as before the Planning Commission. In addition to voicing concerns about raising animals and preserving the nature of the neighborhood, other comments raised concerns about traffic levels in the area. Advocates of the application, including planning expert Jim Wilbert, expressed the area's need for low income housing. Ultimately, the City Council voted to deny the rezoning based upon the General Plan, traffic concerns, and the Planning Commission's recommendation.

T 6 The Plaintiffs later submitted a second Zoning Change Application, requesting that their property be rezoned from R-1-A to R-1-9. An R-1-9 zoning is a medium-density residential zoning. Both the Planning Commission staff and the Planning Commission recommended approval of the R-1-9 rezone. The R-1-9 rezoning came before the City Council for public hearing on May 22, 1996. Public input included comments by representatives of businesses in the abutting industrial area. Associated Foods raised concerns that truck noise would cause residents to seek action against it. Representatives of a fruit-processing plant questioned whether residents would tolerate the noise and smell of its packing facilities After the hearing was closed, the City Council voted to deny the R-1-9 rezoning request.

T7 The Plaintiffs commenced this action by verified complaint on April 1, 1997. They alleged that the Payson City Council's denials of their rezone requests were arbitrary and capricious and that the denials constituted a taking without just compensation. Payson City filed a motion for summary judgment, requesting that the district court dismiss the complaint because the Payson City Council had acted within its legislative prerogative. The Plaintiffs responded by filing a cross-motion for summary judgment. The trial court entered a Memorandum Decision on January 22, 1999, reversing the City Council's denial of the Plaintiffs' R-2-75 rezone application, finding that the denial had no evidentiary support and was therefore arbitrary and capricious. Consequently, the district court did not address the denial of Plaintiffs' second rezone application.

18 Payson City appealed the trial court's decision directly to this court, after which this court transferred the appeal to the court of appeals pursuant to Utah Rule of Appellate Procedure 44. On January 11, 2001, the court of appeals issued an opinion reversing the district court's decision, concluding that the trial court had applied the incorrect standard of review to Payson City's legislative land use decisions and that under the "reasonably debatable" standard, Payson City's denial of the rezoning requests was not arbitrary, capricious, or illegal. Bradley, 2001 UT App 9 at ¶28, 17 P.3d 1160. The Plaintiffs then filed a petition for writ of certiorari to review the substance of the court of appeals' decision. Payson City filed a cross-petition for a writ of. certiorari challenging the court of appeals' conclusion that it had original appellate jurisdiction to decide the appeal.

STANDARD OF REVIEW

T9 When reviewing a city council's decision not to change the zoning classification of property, we presume that the decision is valid and "determine only whether or not the decision is arbitrary, capricious, or illegal." Utah Code Ann. $ 10-9-1001(8) (1999). The principal issue in this case is the meaning of "arbitrary and capricious" in the context of Payson City's decision not to change the zoning classification of the Plaintiffs' property. This is a legal issue which we review for correctness. Springville Citizens for a Better Cmty. v. City of Springville, 1999 UT 25, 1 22, 979 P.2d 332.

ANALYSIS

I. APPROPRIATE STANDARD OF REVIEW GOVERNING APPEALS OF MUNICIPAL LAND USE DECISIONS

A. Distinction Between Legislative and Administrative Actions

110 This court has long recognized that municipal land use decisions should be upheld unless those decisions are arbitrary and capricious or otherwise illegal. Gayland v. Salt Lake County, 11 Utah 2d 307, 358 P.2d 638, 636 (1961); Marshall v. Salt Lake City, 105 Utah 111, 141 P.2d 704, 709 (1948). Indeed, municipal land use decisions as a whole are generally entitled to a "great deal of deference." Springville Citizens for a Better Cmty. v. City of Springville, 1999 UT 25, 123, 979 P.2d 382. However, in specific cases the determination of whether a particular land use decision is arbitrary and capricious has traditionally depended on whether the decision involves the exercise of legislative, administrative, or quasi-judicial powers. When a municipality makes a land use decision as a function of its legislative powers, we have held that such a decision is not arbitrary and capricious so long as the grounds for the decision are "reasonably debatable." Marshall, 141 P.2d at 709 (reviewing municipal zoning decision as legislative function and employing reasonably debatable standard); Smith Inv. Co. v. Sandy City, 958 P.2d 245, 252 (Utah Ct.App.1998) (same). When a land use decision is made as an exercise of administrative or quasi-judicial powers, however, we have held that such decisions are not arbitrary and capricious if they are supported by "substantial evidence." Xanthos v. Bd. of Adjustment of Salt Lake City, 685 P.2d 1082, 1034-35 (Utah 1984) (reviewing board of adjustment decision as an administrative act and employing substantial evidence standard).

$11 There is no dispute in this case that the enactment and amendment of zoning ordinances is fundamentally a legislative act. Sandy City v. Salt Lake County, 827 P.2d 212, 221 (Utah 1992) ("[tlhe passage of general zoning ordinances and the determination of zoning policy [are] properly vested in the legislative branch") (quoting Scherbel v. Salt Lake City Corp., 758 P.2d 897, 899 (Utah 1988)). The political nature of the decision making process underlying municipal zoning demands that the power to make such decisions be vested in persons who are publicly accountable for their choices. See Marshall, 141 P.2d at 709 (noting that accountability for balancing competing interests in zoning decisions properly resides in the "governing body of the city").

12 We have long recognized that zoning decisions that are made as an exercise of legislative powers are entitled to particular deference. In Crestview-Holladay Homeowners Ass'n. Inc. v. Engh Floral Co., we noted that

[tlhe prior decisions of this court without exception have laid down the rule that the exercise of zoning power is a legislative function to be exercised by the legislative bodies of the municipalities. The wisdom of the zoning plan, its necessity, the nature and boundaries of the district to be zoned are matters which lie solely within that discretion. -It is the policy of this court as enunciated in its prior decisions that it will avoid substituting its judgment for that of the legislative body of the municipality.

545 P.2d 1150, 1152 (Utah 1976) (citing Marshall, 105 Utah 111, 141 P.2d 704; Phi Kappa Iota Fraternity v. Salt Lake City, 116 Utah 536, 212 P.2d 177 (1949); Dowse v. Salt Lake City Corp., 128 Utah 107, 255 P.2d 728 (1953); Naylor v. Salt Lake City Corp., 17 Utah 2d 300, 410 P.2d 764 (1966)). Given this deferential disposition, we have held that it is "the court's duty to resolve all doubts in favor" of the municipality, and the burden is on the plaintiff challenging a municipal land use decision to show that the municipal action was clearly beyond the city's power. Gaylamnd, 358 P.2d at 636.

113 In light of the particular deference we accord legislative zoning decisions, we have regularly distinguished zoning decisions that are made as a function of legislative power from decisions that are made as an exercise of either administrative or quasi-judicial power. Legislative zoning decisions involve the determination and enactment of zoning policies and cannot be delegated to other governmental bodies. Sandy City, 827 P.2d at 221. Such decisions are distinct from administrative or quasi-judicial zoning decisions. -For example, in Sandy City, we noted that while a municipality has the authority to formulate and implement zoning policies as an exercise of legislative power, a municipality cannot thereafter delegate some portion of that authority to a board of adjustment because a board of adjustment is a quasi-judicial body designed only to correct specific zoning errors. Id. at 220-21; see also Salt Lake County Cottonwood Sanitary Dist. v. Sandy City, 879 P.2d 1379, 1383 (Utah Ct.App.1994) (recognizing distinction between executive and legislative powers with respect to zoning decisions); Xanthos, 685 P.2d at 1084 (treating board of adjustment decision as an administrative act).

B. The "Reasonably Debatable" and "Substantial Evidence" Tests

114 As mentioned at the outset, our recognition of the distinction between legislative and administrative or quasi-judicial municipal powers has consistently determined the proper standard of review applicable to municipal land use disputes. For legislative decisions, we have applied a highly deferential variation of the arbitrary and capricious standard and limited our review to the strict question of whether the zoning ordinance " 'could promote the general welfare; or even if it is reasonably debatable that it is in the interest of the general welfare." " Smith Inv. Co., 958 P.2d at 252 (quoting Marshall, 141 P.2d at 709); Walker v. Brigham City, 856 P.2d 847, 349 (Utah 1998) (holding that the municipality's legislative decision would be upheld unless "wholly discordant to reason and justice"); Dowse, 255 P.2d at 724 (holding that zoning could be attacked only if there was "no reasonable basis therefor"). "The selection of one method of solving the problem in preference to another is entirely within the discretion of the [city]; and does not, in and of itself, evidence an abuse of discretion." Phi Kappa Iota Fraternity, 212 P.2d at 181.

115 For administrative or quasi-judicial land use decisions, however, the substantial evidence test has traditionally applied. We have defined substantial evidence as "that quantum and quality of relevant evi-denee that is adequate to convinee a reasonable mind to support a conclusion." First Nat'l Bank of Boston v. County Bd. of Equalization, 799 P.2d 1163, 1165 (Utah 1990) (reviewing administrative evaluation of property for tax purposes). This standard has been applied to an array of administrative and quasi-judicial land use decisions. See e.g., Xanthos, 685 P.2d at 1035 (reviewing board of adjustment's denial of a zoning variance); Brown v. Sandy City Bd. of Adjustment, 957 P.2d 207, 210 n. 5 (Utah Ct.App.1998) (reviewing city's administrative interpretation of its zoning ordinance); Wells v. Bd. of Adjustment of Salt Lake City Corp., 936 P.2d 1102, 1105 (Utah Ct.App.1997) (reviewing board of adjustment decision denying variance); Patterson v. Utah County Bd. of Adjustment, 898 P.2d 602, 604 (Utah Ct.App.1995) (reviewing trial court's finding of an arbitrary and capricious action by county in approving special exception to zoning ordinance). Thus, while municipal land use decisions in Utah are valid unless arbitrary and capricious, the specific meaning of that standard is dependent upon the nature of the land use decision at issue.

II, MEANING AND EFFECT OF UTAH CODE SECTION 10-9-1001(3) AND THE SPRINGVILLE CITIZENS CASE

1 16 The Plaintiffs do not dispute the existence of the traditional distinction between the standard of review applicable to legislative as opposed to administrative and quasi-judicial land use decisions. Rather, they claim that since the Utah Legislature's adoption of Utah Code section 10-9-1001 and this court's decision in Springville Citizens for a Better Community v. City of Springville, 1999 UT 25, 979 P.2d 332, the substantial evidence test is now applicable to all municipal land use decisions, whether legislative, administrative, or quasi-judicial.

117 The starting point for the Plaintiffs' "one-size-fits-all" approach to the standard of review for municipal land use decisions is the Utah Legislature's 1991 enactment of Utah Code section 10-9-1001. That provision codified the procedures for appealing municipal land use decisions. Section 10-9-1001(8) addresses the judicial standard of review for such decisions, stating:

(8) The courts shall:

(a) presume that land use decisions and regulations are valid; and
(b) determine only whether or not the decision is arbitrary and capricious, or illegal.

Utah Code Ann. § 10-9-1001(8) (1999). The Plaintiffs argue that section 10-9-1001(8) was intended to create a single standard of review for all municipal land use decisions and that it impliedly overrules this court's earlier decisions applying different interpretations of the arbitrary and capricious standard to different exercises of municipal power.

$18 "When construing statutory language which is plain and unambiguous, we do not look beyond the same to divine legislative intent." Cole v. Jordan Sch. Dist., 899 P.2d 776, 778 (Utah 1995). The plain language of section 10-9-1001(8) clearly states that the arbitrary and capricious standard is applicable to all municipal land use decisions. However, the statute does not address the distinct applications of the arbitrary and capricious standard to legislative, administrative, and quasi-judicial decisions that we have recognized for more than half a century. In the absence of express statutory language to the contrary, we do not presume that the legislature, in enacting section 10-9-1001(3), intended to overrule the prior decisions of this court and impose a uniform interpretation of the arbitrary and capricious standard for all municipal land use decisions, regardless of whether those decisions are legislative, administrative, or quasi-judicial. See id. (noting that in the absence of express statutory language the court-will not assume the legislature intended to overrule an earlier decision of this court when it enacted a statutory amendment).

{19 To support their claim that section 10-9-1001(3) does indeed apply to all three kinds of municipal land use decisions, the Plaintiffs rely on our opinion in Springville Citizens. In that case we stated, "(al municipality's land use decision is arbitrary and capricious if it is not supported by substantial evidence." Springville Citizens, 1999 UT 25 at 124, 979 P.2d 332. The Plaintiffs interpret this language as a "sweeping statement" that the court had, "without reservation, unanimously accepted the legislature's plain language" in section 10-9-1001(8). We disagree.

120 The dispute in Springville Citizens arose out of Springville City's approval of a planned unit development (PUD) pursuant to city ordinances. Springville Citizens, 1999 UT 25 at 111, 2, 979 P.2d 332. A developer sought approval of a PUD pursuant to those ordinances and the procedures contained therein. Id. at 12. The plaintiff's action alleged that Springville City's approval of the PUD was arbitrary, capricious, and illegal because Springville City had failed to follow its own mandatory ordinances in approving the PUD. Id. at % 12.

1 21 In holding that Springville City's decision was not arbitrary and capricious, we did not discuss whether the decision was legislative, administrative, or quasi-judicial: we stated simply that "[a] municipality's land use decision is arbitrary and capricious if it is not supported by substantial evidence." Id. at 1 24. The Plaintiffs read this language as announcing a uniform standard of review for all municipal land use decisions. Nothing in Springville Citizens, however, evidences this court's intent to abandon the traditional distinction between the standard of review for legislative, administrative or quasi-judicial decisions. Furthermore, nothing in Spring-ville Citizens suggests, as the Plaintiffs argue, that the legislature's 1991 enactment of section 10-9-1001(8) affected our application of the arbitrary and capricious standard to different exercises of municipal power. The essence of the Plaintiffs' argument is that Springville Citizens overruled the cases recognizing the legislative/administrative distinction by implication.

€ 22 For its part, Payson City has tried to reconcile Springville Citizens with this court's prior municipal land use cases by explaining that the decision in that case was an administrative one that required application of the substantial evidence test. Payson City argues that all of the issues we addressed in Springville Citizens arose from the administrative processing of the PUD application pursuant to the standards set forth in city ordinances. Specifically, they note that the court focused on the certification of drawings by an irrigation company, Springville Citizens, 1999 UT 25, 115, 979 P.2d 332, whether the planning commission had reviewed the final plat, engineering drawings and documents as required by city ordinance, id. at 116, whether modification required by the city council to the final subdivision plat had been referred to the planning commission as required by city ordinance, id. at 117, and others examples. Each of these examples prove, Payson City argues, that the focus was on compliance with procedural requirements, not with "any basic policy decisions involving the exercise of legislative discretion." A more direct explanation for our statement of the standard of review in that case, however, is found in Springville City's assertion in its brief in that case that the challenged decision was "an administrative one" that was subject to the substantial evidence test. Brief for Appellee, at 19, Springville Citizens for a Better Cmty. v. City of Springville, 1999 UT 25, 979 P.2d 382 (No. 980028). Civen that the municipality itself acknowledged both the administrative nature of the decision and the applicability of the heightened substantial evidence test, it is not surprising that we stated municipal land use decisions were subject to the substantial evidence test; the municipality conceded as much.

928 Thus, what the Plaintiffs describe as a "sweeping statement" of a new "one-size-fits-all" standard of review in Springville Citizens was nothing more than a recognition that both the parties and the court agreed that the challenged action was administrative and should be subject to the substantial evidence test. The absence of an acknowledgment of the distinction between legislative and administrative decisions in Springville Citizens stemmed solely from the fact that the standard of review was not a contested issue in that case. Therefore, we decline the invitation to treat Springville Citizens as a deviation from our traditional application of the arbitrary and capricious standard to different types of municipal land use decisions.

III. UNDER THE REASONABLY DEBATABLE STANDARD PAYSON CITY'S DENIAL OF THE PLAINTIFFS' REZONING REQUEST WAS NOT ARBITRARY AND CAPRI CIOUS

124 Having concluded that the reasonably debatable standard applies to legislative municipal land use decisions, we now proceed to evaluate whether Payson City's denial of the Plaintiffs' rezoning request was arbitrary and capricious under that standard. In general, because a "zoning classification reflects a legislative policy decision," we will not interfere with that decision "except in the most extreme cases." Harmon City, 2000 UT App 31 at ¶18, 997 P.2d 321. The guiding principle behind our interpretation of legislative zoning decisions is that we will not substitute our judgment for that of the municipality. Crestview-Holladay Homeowners Ass'n, 545 P.2d at 1152. Though a municipality may have a myriad of competing choices before it, "[the selection of one method of solving the problem in preference to another is entirely within the discretion of the [city]; and does not, in and of itself evidence an abuse of discretion." Phi Kappa Tota Fraternity, 212 P.2d at 179. The pro-pricty of the zoning decision need only be "reasonably debatable." Marshall, 141 P.2d at 709.

25 The Plaintiffs argue that the court of appeals erred in holding that Payson City's denial of their rezoning request was not arbitrary and capricious under the reasonably debatable standard. The Plaintiffs argue that there was a general lack of evidence presented to the Payson City Council to support the reasonableness of its denial of the rezone application. The Plaintiffs further argue that the basis of Payson City's decision contradicted some record evidence supporting the zoning change. We will address each of the Plaintiffs' specific arguments in turn.

126 First, the Plaintiffs argue that Payson City's zoning decision was unreasonable to the extent it was based on the General Plan's recognition of I-15 as a natural buffer between residential and industrial uses. The Plaintiffs argue that Payson City failed to consider that, unlike the General Plan, the Payson Zone Map actually provides for large areas of residential use west of I-15 and that their proposed rezoning would be consistent with the uses of neighboring properties in the zone map. This discrepancy between the General Plan and the Payson Zone Map is not conclusive evidence that Payson City's decision was arbitrary and capricious. To the contrary, Payson City's reliance on the General Plan as a basis for its decision is precisely the kind of legislative decision that should be left to the city council and undisturbed by the judiciary. It is not up to the court to determine whether Payson City made the right decision or the best decision in relying on the General Plan rather than the Payson Zone Map. We evaluate only whether it was reasonably debatable that the decision reached would promote the general welfare. Payson City's reliance on the long-term policy preferences embodied in the General Plan satisfies the reasonably debatable standard.

127 Additionally, the Plaintiffs assert that Payson City "almost exclusively relied on public comment[s]" made at the public hearing before the city council as a basis for the denial of their rezoning proposal and argue that citizen opposition alone cannot be the basis for the municipality's action. See Davis County v. Clearfield City, 756 P.2d 704, 712 (Utah Ct.App.1988) (applying substantial evidence test to denial of conditional use permit and holding that citizen opposition alone is an insufficient basis for denial of permit). For example, the Plaintiffs argue that Payson City relied on citizens' concerns about increased traffic as a basis for the denial of the rezone application, even though no actual evidence of traffic problems was presented other than those public comments.

128 It is beyond question, however, that public hearings and citizen comments are a legitimate source of information for city council members to consider in making legislative decisions. See Harmon City, 2000 UT App 31 at ¶26, 997 P.2d 821 (noting that "a city may rely on the concerns of interested citizens when performing legislative functions"). In reviewing the city council's decision, we do not apply trial-like "formal rules of procedure or evidence" to evaluate the substance of public comments received by the city council,. Gayland, 358 P.2d at 635. Rather, we presume that city council members will measure public comments against their own personal knowledge of the various conditions in the city that bear upon zoning decisions. See id. at 636. A city council's ultimate decision, of course, reflects legislative preferences that are entitled to a presumption of validity. Id.

129 Like the court of appeals in its decision below, we are satisfied that Payson City's consideration of public comments as a justification for its zoning decision reflects a reasonable judgment that properly took into account citizens' concerns. The court of appeals cited a number of items in the record to support this conclusion:

Specifically, two businesses in the area expressed concern over the compatibility of higher density residential areas with their businesses and the neighboring industrial zones. One of the businesses submitted a letter detailing why it located in the area. This business stated it was attracted to the area because the "master plan ... was far sighted enough to separate the industrial area from the residential area by a natural break." The business stated that it operates twenty-four hours a day with "bright dock lights, and large trucks ... all of which would be a concern for the future residential area that is proposed." Another businessman in the area testified that because his business was contiguous to the proposed zone change he felt he would be out of business within a year because neighboring residents would not tolerate the noise and smell from his fruit processing plant.

Bradley, 2001 UT App 9 at 123, 17 P.3d 1160. Additionally, the court of appeals noted that many residents opposed the zoning change because they wanted to maintain the area for agricultural uses such as keeping and raising horses, which might be incompatible with high-density residential development. Id. at 126. Each of these concerns is a legitimate ground for denying the Plaintiffs' proposed zoning change. Payson City has the right to deny a zoning change request if it "has a reasonable basis to believe that it will conserve the values of other properties and encourage the most appropriate use thereof" Smith Inv. Co., 958 P.2d at 255.

T380 Furthermore, with respect to the Plaintiffs' argument that there was no evi-dentiary support behind public comments about increased traffic, we simply note that a city council is not required to receive advice from experts before making a legislative zoning decision. Moreover, we are not persuaded that the comments of the Plaintiffs' planning expert, Jim Wilbert, cast doubt on the reasonability of Payson City's decision. Mr. Wilbert spoke at the public hearing in favor of the zone change because it would bring affordable housing to the nearby industrial center. However, even assuming that affordable housing is an important addition to the city plan, Mr. Wilbert's comments do not directly refute the concerns raised by local business owners and other residents about the compatibility of high-density residential housing in the industrial and agricultural zones. See Bradley, 2001 UT App 9, 1 27, 17 P.3d 1160. The City Council's decision to give greater weight to Mr. Wilbert's opponents and deny the rezoning simply reflects the exercise of legislative policy preferences that are entirely within its discretion.

{31 Finally, the Plaintiffs challenge Pay-son City's reliance on the Planning Commission's negative recommendation as a basis for the rezone denial. The Plaintiffs contend that the Planning Commission's decision was predicated entirely on neighboring citizens' opposition to the proposed rezone and that reliance on such views was an unreasonable basis for the zoning decision. In light of our holding that it was reasonable for the City Council to rely on public comments in making its decision, we need not also address the reasonability of the Planning Commission's similar reliance.

IV. THE COURT OF APPEALS DOES NOT HAVE ORIGINAL APPELLATE JURISDICTION OVER CASES ARISING FROM LAND USE DECISIONS BY LOCAL GOVERNMENTAL ENTTTIES

132 Payson City originally appealed the trial court's reversal of the City Council's decision to deny the Plaintiffs' rezone application directly to this court. Bradley, 2001 UT App 9 at 18, 17 P.83d 1160. Pursuant to Rule 44 of the Utah Rules of Appellate Procedure, this court then transferred the appeal to the court of appeals, stating that the appeal was not within our original appellate jurisdiction. Id.

33 Under Utah Code section 78-2a-8, the court of appeals has original jurisdiction to hear appeals from trial court review of "adjudicative proceedings of agencies of political subdivisions of the state or other local agencies." Utah Code Ann. § 78-22-83@)(b)M) (2002) (emphasis added). This provision is designed to establish a body of expertise in the court of appeals for review of such "adjudicative proceedings" under the Utah Administrative Procedures Act. Utah Code Ann. §§ 63-46b-0.5 to -22 (1997 & Supp.2001). The Utah Administrative Procedures Act governs "all state agency actions." Id. § 683-46b-1(1)(a). An "adjudicative proceeding" is specifically defined as an action by a state agency under the Administrative Procedures Act. Id. § 68-46b-2(1)(a). The Act specifically excludes from the definition of "agency" "any political subdivision of the state, or any administrative unit of a political subdivision of the state." Id. § 63-46b-2(1)(b); Davis County, 756 P.2d at 706-07. Critically, the appeal in this case arises not from an "adjudicative proceeding," but rather from a limited judicial review of a local legislative land use decision under Utah Code section 10-9-1001. Thus, it is apparent that Utah Code section 78-2a-3 does not give the court of appeals original jurisdiction over appeals from district court review of land use decisions by the governing body of a municipality. The governing body of a municipality cannot be an "agenely] of [a] political subdivision[ ] of the state" under that section. See Utah Code Ann. § 78-2a-8(2)(b)G).

34 In an attempt to resolve the confusion created by the jurisdictional statutes and our transfer of this appeal, the court of appeals nevertheless determined that "it must have jurisdiction" and stretched the meaning of section 78-2a-3 to accommodate this view Bradley, 2001 UT App 9 at 1 9, 17 P.8d 1160. The court noted:

The supreme court, however, seems to have consistently determined that it does not have original appellate jurisdiction over zoning cases under the catch-all provision found in section 78-2-2@)(J). Accordingly, this court must have jurisdiction. Examining section 78-22-83, the only provision that could apply is subsection 2(b)(Gi) which gives this court jurisdiction over "appeals from the district court review of adjudicative proceedings of agen- . cles of political subdivisions of the state or other local agencies...." Utah Code Amn. § (1996). As Payson City's counsel noted, however, this case does not arise from an "adjudicative" proceeding, but rather a legislative proceeding. Nevertheless, in order to effectuate the supreme court's order transferring these appeals to this court, "adjudicative" must be read broadly to include both administrative and legislative proceedings of state political subdivisions and local governments. Thus, read in conjunction with section 78-2-2, governing the supreme court's jurisdiction, section 78-2a-3(2)(b)0) confers original appellate jurisdiction to this court over this matter.

Id.

135 We agree with Payson City that the court of appeals' conclusion on this point is not consistent with a close reading of the statutory language. The jurisdiction of the court of appeals is defined by section 78-2a-3(2). When interpreting statutes, we look primarily to the statute's plain language. Hercules Inc. v. Utah State Tax Comm'n, 877 P.2d 188, 186 (Utah 1994). Furthermore, we will not infer substantive provisions into a statute that are not expressly contained therein. Cole v. Jordan Sch. Dist., 899 P.2d 716, 778. It is clear that there is no provision within section 78-2a-3(2) that expressly grants the court of appeals original jurisdiction over district court review of land use decisions by local governmental entities. We therefore conclude that this court has original appellate jurisdiction over such cases under Utah Code section 78-2-2(8)(J), which provides that this court has jurisdiction over "orders, judgments, and decrees of any court of record over which the court of appeals does not have original appellate jurisdiction." Utah Code Ann. § 78-2-2(8)(G)

CONCLUSION

T36 Municipal land use decisions are presumed valid unless they are arbitrary and capricious. In this case, we reaffirm that whether a particular municipal land use decision is arbitrary and capricious depends upon whether the municipality has acted in a legislative, administrative, or quasi-judicial capacity. Legislative land use decisions are valid so long as they are reasonably debatable. Administrative and quasi-judicial decisions, however, continue to be subject to the substantial evidence test. Under the reasonably debatable standard, Payson City did not act arbitrarily and capriciously when it acted in a legislative capacity to deny the Plaintiffs' application to rezone their property.

T37 Additionally, we hold that the court of appeals does not have original jurisdiction to hear challenges to land use decisions by municipal governing bodies, and vacate the decision of the court of appeals.

38 Associate Chief Justice DURRANT, Justice RUSSON, Justice WILKINS, and Judge BALDWIN concur in Chief Justice DURHAM'S opinion.

1 39 Having recused himself, Justice HOWE does not participate herein; Second District Judge PARLEY R. BALDWIN sat.

      . The court of appeals agreed with this interpretation of section 10-9-1001(3) in Harmon City, Inc. v. Draper City, 2000 UT App 31, 997 P.2d 321. In upholding a city council's refusal to rezone property for a shopping center on the grounds that the city's decision was reasonably debatable, the court of appeals rejected the plaintiff's argument that section 10-9-1001(3) required the uniform application of the substantial evidence test under the arbitrary and capricious standard. After reviewing the earlier case law we have discussed in this opinion, the court concluded that
      the 1991 enactment of section 10-9-1001(3), which largely codifies {municipal land use case law], did not alter the deferential review of a municipality's legislative zoning classification decisions under the arbitrary and capricious standard.
      Id., § 14.

      . Relying on its earlier decision in Harmon City, 2000 UT App 31, 997 P.2d 321, the court of appeals in its decision below also read Spring ville Citizens as involving an administrative decision that was subject to the substantial evidence test. Bradley, 2001 UT App 9, 115, 17 P.3d 1160. The court noted that "Springville Citizens involved judicial review of an administrative proceeding governed by city ordinances that expressly limited the city's discretion over PUD approvals." Id. Because the decision was administrative, the court of appeals recognized that Springville Citizens required application of the substantial evidence test while Payson City's legislative zoning decision must be evaluated under the reasonably debatable standard. Id.

      . While we appreciate the court of appeals' valiant attempt to account for our transfer of this case to that court, we must observe that it overlooked another possible explanation: we incorrectly transferred it to them in the first place.

      . The legislature might consider amending section 78-2a-3(2) to give the court of appeals original jurisdiction over municipal zoning decisions. This could be accomplished by amending section 78-2a-3(2), which currently gives the court of appeals original jurisdiction over "adjudicative proceedings of agencies of political subdivisions of the state or other local agencies" to give that court original jurisdiction over "proceedings of political subdivisions of the state or their agencies."