author: NEHRING, Justice:

text:
    2004 UT 53
    Scott Allen JONES, Plaintiff, Appellee, and Cross-Appellant, v. UTAH BOARD OF PARDONS & PAROLE, and Hank Galetka, Warden of the Utah State Prison Defendants, Appellants, and Cross-Appellees.
    No. 20020485.
    Supreme Court of Utah.
    June 29, 2004.

      Edward K. Brass, Salt Lake City, for plaintiff.
    Mark L. Shurtleff, Att’y Gen., Sharel S. Reber, Asst. Att’y Gen., Salt Lake City, for defendants.
   NEHRING, Justice:

¶ 1 This case presents the question of whether the Utah Constitution authorized the legislature to enact Utah Code section 77-27-11(3), which empowers the Board of Pardons and Parole to issue warrants to retake parolees believed to have violated parole. Utah Code Ann. § 77-27-11(3) (2003). We hold that it did.

BACKGROUND

¶ 2 Scott Jones is now incarcerated at the Utah State Prison. He had been previously committed to prison following a conviction for theft of an automobile and was paroled in June 1995. When he was paroled, Mr. Jones signed a parole agreement that required him to comply with numerous conditions, including that he complete a program at a community correctional center and that he not abscond from parole supervision.

¶ 3 Two days after his release, Mr. Jones absconded from the correctional center. Acting under the authority of Utah Code section 77-27-11(3), a member of the Board of Pardons and Parole issued a warrant to retake Mr. Jones on the basis that he had violated his parole (the “retaking warrant”). See Utah Code Ann. § 77-27-11(3) (2003). Mr. Jones was taken into custody and returned to prison in September 1995. He admitted that he violated his parole. While at large, Mr. Jones had committed aggravated robbery. He was convicted and sentenced to prison for this offense in June 1996.

¶ 4 In November 1996, the Board conducted a hearing and revoked Mr. Jones’ parole. It based its revocation on both Mr. Jones’ guilty plea to a parole violation and his conviction for aggravated robbery.

¶ 5 Appearing pro se, Mr. Jones filed a petition for extraordinary relief in August 1999, seeking to be released from prison. In his lengthy petition, Mr. Jones mounted broad and diffuse attacks on the constitutional authority of the Board to revoke his parole, as well as the conduct of both the district attorney who prosecuted him and the public defender appointed to represent him. The trial court appointed counsel to represent Mr. Jones with respect to this petition.

¶ 6 Both the Board and Mr. Jones filed dispositive motions, which pruned Mr. Jones’ claims into the form in which they are now presented to us. His claims centered around his challenge to the Board’s authority to issue the warrant that resulted in his post-absconsion apprehension. Mr. Jones contended that, when the Board issued this retaking warrant, it exercised a “core judicial function” that can be lawfully performed only by a member of the judicial branch of government. He further argued that the issuance of the retaking warrant violated article V, section 1 of the Utah Constitution, which mandates the separation of governmental powers among the executive, legislative, and judicial departments. Utah Const. art. V, § 1.

¶ 7 In a memorandum decision issued in November 2001, the trial court agreed with Mr. Jones’ contentions and issued an order permanently enjoining the Board and its members from issuing retaking warrants. The trial court stayed the order pending resolution of the Board’s appeal. We reverse the ruling of the trial court and remand.

ISSUES AND STANDARD OF REVIEW

¶ 8 The major portion of our analysis is directed toward Mr. Jones’ contentions that section 77-27-11(3) is unconstitutional, both because it enables the Board to exercise a “core judicial function” and because it violates the principle of separation of powers. We also take up two subsidiary questions raised in the trial court’s memorandum decision: whether section 77-27-11(3) unconstitutionally allows a single Board member to issue a retaking warrant, in violation of article VII, section 12 of the Utah Constitution, which requires the Board to act as a majority; and whether section 77-27-11(3) violates the Fourth Amendment of the United States Constitution and article I, section 14 of the Utah Constitution, both of which prohibit unreasonable searches and seizures, because it allows for a retaking arrest without probable cause.

¶ 9 The four issues presented on appeal call on us to undertake statutory and constitutional interpretation. This is a task we perform without deference to the trial court’s determinations. Utah Safe to Learn-Safe to Worship Coalition, Inc. v. State, 2004 UT 32, ¶ 10, 94 P.3d 217.

¶ 10 We presume that the statute is constitutional and, therefore, that the warrant it authorized was proper. “ ‘[Statutes are presumed to be constitutional until the contrary is clearly shown. It is only when statutes manifestly infringe upon some constitutional provision that they can be declared void. Every reasonable presumption must be indulged in and every reasonable doubt resolved in favor of constitutionality.’ ” Salt Lake City v. Ohms, 881 P.2d 844, 847 (Utah 1994) (quoting In re Estate of Baer, 562 P.2d 614, 616 (Utah 1977)). Thus, the party challenging a statute’s constitutionality bears a heavy burden of proving its invalidity. Blue Cross & Blue Shield v. State, 779 P.2d 634, 637 (Utah 1989).

¶ 11 Finally, Mr. Jones cross-appeals, asking us to review the trial court’s denial of his demand for an evidentiary hearing on his claim that his guilty plea and admissions to parole violations were the product of his illegal arrest.

ANALYSIS

I. ISSUES ON APPEAL

¶ 12 The statute that Mr. Jones contests, and that the trial court found to be constitutionally infirm, states:

Any member of the board may issue a warrant based upon a certified warrant request to a peace officer or other persons authorized to arrest, detain, and return to actual custody a parolee, and may upon arrest or otherwise direct the Department of Corrections to determine if there is probable cause to believe that the parolee has violated the conditions of his parole.

Utah Code Ann. § 77-27-11(3) (2003).

A. The Core Judicial Function Challenge

¶ 13 The trial court anchored its holding that section 77-27-11(3) was unconstitutional on the conclusion that the Board’s power to issue a retaking warrant was a “core judicial function,” and thus could be performed only by a judicial officer who was appointed pursuant to article VIII of the Utah Constitution. As authority for this conclusion, the trial court relied largely on State v. Thomas, 961 P.2d 299 (Utah 1998). In that case, we held that the power of a court of record to issue a search warrant was a “core judicial function” that could not be exercised by court commissioners because they are not judicial officers appointed pursuant to article VIII of the Utah Constitution. Id. at 302.

¶ 14 Thomas was based largely on a previous case, Salt Lake City v. Ohms, in which we first used the nomenclature “core judicial function.” Salt Lake City v. Ohms, 881 P.2d 844, 848 (Utah 1994). In Ohms, we held that court commissioners in courts of record did not have the power to enter final judgments and to impose sentences on defendants in criminal misdemeanor cases. Id. at 851. We characterized that power as a “core judicial function” and held that, in courts of record, only judicial officers appointed pursuant to article VIII could exercise it. Id.

¶ 15 The trial court in this case reasoned that the Board is analogous to the court commissioners in Ohms and Thomas because neither enjoy status as an article VIII judicial power. The trial court also found similarity between the power of a retaking warrant to arrest a suspected parole violator, and the power of a search warrant to search a citizen’s dwelling, and concluded that a retaking warrant, like a search warrant, is a “core judicial function.” We depart from both elements of the trial court’s analysis.

¶ 16 The trial court overextended the reach of Ohms and Thomas. It is true that the members of the Board, like court commissioners, do not acquire or maintain their positions pursuant to the judicial selection and retention process set out in article VIII. However, Board members, unlike commissioners, do not serve in “courts of record,” a characteristic that defined the realm of both Ohms and Thomas.

¶ 17 The statutory grant of authority to court commissioners exceeds constitutional limits “ ‘to the extent that it purports to vest ultimate judicial power in courts of record in persons who have not been duly appointed as article VIII judges.’ ” Thomas, 961 P.2d at 302 (quoting Ohms, 881 P.2d at 855). Thus, because the Board is not a court of record, Ohms and Thomas do not apply to warrants which it issues.

¶ 18 The trial court also overstated the similarity between a retaking warrant and a search warrant. When we held that the issuance of a search warrant was a “core judicial function,” we noted that search warrants implicate a right preeminent among those protected by our constitution. Id. at 303. We need not retreat from our recognition of the importance of the right to be free from unreasonable searches, or our commitment to defend it, to conclude that retaking warrants, issued to apprehend absconding parolees, are not entitled to equal dignity.

¶ 19 When Mr. Jones was sentenced to serve a prison commitment, he was placed in the custody of the Department of Corrections. See Utah Code Ann. § 64-13-7 (2003). The Department’s custodial responsibilities extend to offenders who, like Mr. Jones, are paroled. Id. Although parolees are entitled to a greater range of constitutional protections than prison inmates, they do not enjoy the full complement of constitutional freedoms. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). “ ‘Revocation [of parole] deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.’ ” Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (quoting Morrissey, 408 U.S. at 480, 92 S.Ct. 2593).

¶ 20 We have previously stated that “ ‘the parole function is a complex, multidimensional proceeding.’ ” Padilla v. Bd. of Pardons & Parole, 947 P.2d 664, 669 (Utah 1997) (quoting Labrum v. Bd. of Pardons, 870 P.2d 902, 911 (Utah 1993)). Within the dimensions of the parole function is the need to impose and enforce conditions of parole. The ability to issue retaking warrants, and thus engage the aid of law enforcement in apprehending offenders who violate the conditions of parole, is integral to the effective use of parole as an alternative to incarceration. We therefore conclude that the constitutional interest at stake in the issuance of retaking warrants does not merit including them in the category of a “core judicial function.”

B. The Separation of Powers Challenge

¶ 21 Because our “core judicial function” jurisprudence is, in its present form, limited to courts of record, it does not provide an analytical model to evaluate generally claims that a legislative grant of power violates the separation of powers clause of the Utah Constitution. Thus, although considerable overlap exists between the considerations relevant to both “core judicial function” claims and separation of powers challenges, we take up separately Mr. Jones’ separation of powers claim.

¶ 22 Article V, section 1 of the Utah Constitution divides the power of the government into three branches:

The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of the powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.

Utah Const. art. V, § 1.

¶ 23 To determine whether section 77-27-11(3) violates this provision, we apply an analytical model that poses three questions:

First, are the [actors] in question “charged with the exercise of powers properly belonging to” one of the three branches of government? Second, is the function that the statute has given the [actors] one “appertaining to” another branch of government? The third and final step in the analysis asks: if the answer to both of the above questions is “yes,” does the constitution “expressly” direct or permit exercise of the otherwise forbidden function? If not, article V, section 1 is transgressed.

In re Young, 1999 UT 6, ¶ 8, 976 P.2d 581 (quoting Utah Const. art. V, § 1).

¶ 24 We first assay whether the Board is a “person charged with the exercise of powers properly belonging to” one of the three branches of government. Id. The trial court read our holdings in Robinson v. State, 2001 UT 21, 20 P.3d 396, and State v. Gallion, 572 P.2d 683 (Utah 1977), to mean that the Board, because it is not one of the five elective constitutional officers of the executive department, is not a “person” for purposes of this provision, but is instead more like an “administrative agency.” We disagree with this reading of Robinson and Gallion and begin the analysis anew.

¶ 25 In Robinson, we held that the Utah Department of Transportation was not part of the executive branch for purposes of article V. We wrote:

The constitution itself defines those “persons” who are deemed to be a part of the Executive Department, and that definition does not include administrative agencies .... “Although administrative bodies are nominally designated a part of the executive branch, they do not fall within the Constitutional definition of the Executive Department and the prohibition of [AJrticle V, section I does not apply thereto.”

Id. at ¶ 12 (emphasis added) (quoting Gallion, 572 P.2d at 687).

¶ 26 We maintain the position that “person,” as it is used in article Y, section 1, does not encompass “administrative agencies.” However, this is not a case about an administrative agency. Rather, the Board falls squarely — not nominally — “within the Constitutional definition of the Executive Department.” Its genesis is not as an entity created by the governor to help with her administrative duties; rather, it is created in article VII, the article that sets forth the executive department: “There is created a Board of Pardons and Parole. The Governor shall appoint the members of the board with the consent of the Senate. The terms of office shall be as provided by statute.” Utah Const. art. VII, § 12(1).

¶ 27 The legislature has twice amended the constitutional provisions regarding the Board, and, in so doing, has preserved the Board’s place in the executive department. We interpret the Board’s position in article VII as a positive indicator that the legislature intends it to be there. We do not think this conclusion is contradicted by the fact that article VII, section 1 states that the “elective constitutional officers” of the executive department are the governor, lieutenant governor, state auditor, state treasurer, and attorney general. Utah Const. art. VII, § 1(1). Although the Board clearly is not an elective constitutional officer, this language does not dislodge the Board’s position in the executive department, and leads us to conclude that the provision complies with article V, section 1.

¶ 28 Second, we ask whether the function of issuing retaking warrants is one “appertaining to” another branch of government— in this case, the judicial branch. In part A of this opinion, we determined that the issuance of a retaking warrant was not a core judicial function. Although a governmental activity need not be a core judicial function to “appertain to” the judicial branch, we need not determine whether retaking warrants appertain to the judicial branch because, appertaining or not, they are expressly permitted by the constitution.

¶ 29 The third Young query is whether the Utah Constitution expressly directs or permits the Board to issue a retaking warrant as provided by section 77-27-11(3). Article V, section 1 allows for an exception to the otherwise absolute separation of powers. Utah Const. art. V, § 1. Such an exception makes sense in light of the practical realities of governmental activities. “The separation-of-powers doctrine ... has no rigid boundaries. Instead, some acts can be properly entrusted to more than one branch of government, and some functions inevitably intersect.... [H]armonious cooperation among the three branches of government [is] fundamental to our system of government.” Klouda v. Sixth Judicial Dist. Dep’t of Corr. Servs., 642 N.W.2d 255, 260 (Iowa 2002) (internal quotations omitted).

¶ 30 The exception to an absolute separation of powers is also consistent with the historical underpinnings of the Board’s constitutional creation. When enacted, the Board was created by a constitutional provision that stated:

Until otherwise provided by law, the Governor, Justices of the Supreme Court and Attorney-General shall constitute a Board of Pardons, a majority of whom, including the Governor, upon such conditions, and with such limitations and restrictions as they deem proper, may remit fines and forfeitures, commute punishments, and grant pardons after convictions, in all cases except treason and impeachments, subject to such regulations as may be provided by law, relative to the manner of applying for pardons.

Utah Const. of 1896, art. VII, § 12. Under this framework, the Board was uniquely positioned: it had inter-branch membership, being comprised of representatives of both the executive and judicial branches, and was authorized to perform its functions “with such limitations and restrictions as [it] deem[s] proper.” Id.

¶ 31 However, in response to a belief that the reach of the Board’s power was too broad, the constitution was amended to provide legislative oversight of the Board’s activities. We have previously summarized the development of this constitutional provision:

Prior to its amendment in 1980, Article VII, section 12 allowed the Board of Pardons to grant parole upon such conditions, and with such limitations and restrictions as they [i.e., the members of the Board] deem proper. Because of the breadth of this power, pre-1980 decisions of this Court can be read as treating the Board of Pardons as, in effect, a fourth branch of government.
However, in 1980, an amendment to Article VII, section 12 narrowed the power of the Board of Pardons by striking the above-quoted language and substituting language which made the Board’s power to grant parole subject to such conditions as may be established by the Legislature.

State v. Bishop, 717 P.2d 261, 264 (Utah 1986) (internal quotations and citations omitted).

¶ 32 The 1980 version read:

Until otherwise provided by law, the Governor, Justices of the Supreme Court and Attorney General shall constitute a Board of Pardons, a majority of whom, including the Governor, upon such conditions as may be established by the Legislature, may remit fines and forfeitures, commute punishments, and grant pardons after convictions.

Utah Const. of 1980, art. VII, § 12. With the amendment’s injection of legislative oversight, the Board acquired as its constituent elements contributions from all three branches of government: it was composed of members of both the executive and judicial branches, and its power was subject to conditions established by the legislature.

¶ 33 In 1992, the constitutional authority of the Board of Pardons was again amended to its current language. This provision changed the membership of the Board, removing from it the governor, justices of the supreme court, and the attorney general. The new provision also more clearly articulated the role of the Board and, for the first time, included the power to parole among its express duties. The current provision reads, in relevant part:

(1) There is created a Board of Pardons and Parole. The Governor shall appoint the members of the board with the consent of the Senate. The terms of office shall be as provided by statute.
(2) (a) The Board of Pardons and Parole, by majority vote and upon other conditions as provided by statute, may grant parole, remit fines, forfeitures and restitution orders, commute punishments, and grant pardons after convictions, in all eases except treason and impeachments, subject to regulations as provided by statute.

Utah Const. art. VII, § 12. The history of the Board thus demonstrates the “harmonious cooperation” and “inevitable intersection” so fundamental to smooth operation of the government.

¶ 34 We turn, then, to the question of whether the constitution “expressly direct[s] or permitfs]” the Board to issue a retaking warrant, as set forth in section 77-27-11(3). We hold that it does. The current constitutional provision enumerates certain powers of the Board: namely, to grant parole, remit fines, forfeitures, and restitution orders, commute punishments, and grant pardons. Mr. Jones’ argument that the issuance of a retaking warrant is an unconstitutional violation of the separation of powers assumes that the authority to issue such a warrant is not in-eluded within any of these powers. Such an argument would be plausible if we required that, in order to be “expressly directed or permitted,” each and every task of the Board must be articulated in the constitution.

¶ 35 As we have demonstrated in our “core judicial function” discussion of the Board’s scope of authority over parolees, the Board’s power to issue retaking warrants falls well within the ambit of its legitimate plenary powers to “grant parole.” Necessarily enveloped in the power to “grant parole” is the authority to administer and supervise parole, revoking it as needed.

¶ 36 Accordingly, we hold that the Board’s statutory authority to issue a retaking warrant is an integral part of its authority to grant pardons. Because the authority to grant pardons is “expressly directed or permitted” by article VII, section 12(2)(a), it is not a violation of the otherwise absolute separation of powers found in article V, section 1.

C. “Majority” v. “Individual”

¶ 37 The trial court, on its own initiative, stated in a footnote that section 77-27-11(3) may violate article VII, section 12, the Utah Constitutional provision that establishes the Board, because it allows “any member of the board” to issue retaking warrants. The trial court found this statute to conflict with the constitutional mandate that the Board “by majority vote and upon other conditions as provided by statute, may grant parole ... subject to regulations as provided by statute.” Utah Const. art. VII, § 12, cl. 2(a) (emphasis added). The trial court concluded that an individual board member does thus not have the legal authority to issue a retaking warrant without the majority vote required by article VII, section 12.

¶ 38 We find this to overly expand the range of Board activities requiring full Board participation. The purpose for requiring a “majority vote” in matters of granting parole, remitting fines, forfeitures and restitution orders, commuting punishments, and granting pardons is to ensure that a prisoner is afforded his full measure of due process. This is more clearly articulated in the next provision of the constitution, which states:

A fine, forfeiture, or restitution order may not be remitted and a commutation, parole, or pardon may not be granted except after a full hearing before the board, in open session, and after previous notice of the time and place of the hearing has been given.

Utah Const. art. VII, § 12, cl. 2(b).

¶ 39 To insist that “by majority vote and upon other conditions as provided by statute” means that every decision made by the Board must be approved by a majority is to ignore the fact that the same rigor of process is not due each of those decisions. A more practical and logical reading suggests that some tasks, those more ministerial in nature than the grant or revocation of parole, can be performed by one individual. At oral argument, Mr. Jones’ counsel stated that such retaking warrants are issued “five or six” times a day. With such a high frequency, a majority vote on each warrant would be an administrative clog to the system that greatly outweighed any benefit to the due process of the parolees in question.

¶ 40 While the issuance of a retaking warrant is not as ministerial as, for example, filling out forms, it is clearly less demanding of due process safeguards than granting or revoking parole. The purpose of a retaking warrant is not to grant or deny rights to a parolee; rather, its practical purpose is to initiate the process of revoking parole, a duty which mandates a majority action.

¶ 41 This view is also consistent with the constitutional history of this provision. We do not suppose that, when the Board was comprised of its original membership, the governor, the attorney general, and the justices of the supreme court, a majority vote by these individuals was required before any of the Board’s powers could be invoked. Instead, a majority vote was more likely meant for activities that involve the most important rights of a prisoner — such as the granting or revoking of parole, extending pardons, and the like.

¶ 42 We are also led to this conclusion by the twice-mentioned authority of the legislature to shape the operations of the Board. Where the constitution has so clearly delegated to the legislature the authority to prescribe the detailed operations of the Board, we will not exercise our authority to declare its directives unconstitutional. Accordingly, we do not hold that section 77-27-11(3) is in constitutional conflict with its own progenitor, article VII, section 12.

D. Probable Cause

¶ 43 The trial court also suggested that section 77-27-11(3) might unconstitutionally allow a parolee’s arrest without probable cause in violation of the Fourth Amendment of the United States Constitution and article I, section 14 of the Utah Constitution, which prohibit unreasonable searches and seizures. The court wrote that section 77-27-11(3), although it states the warrant-issuing Board “may ... direct the Department of Corrections to determine if there is probable cause to believe that the parolee has violated the conditions of his parole,” does not demand a finding of probable cause prior to retaking. However, this argument fails because it would impose requirements on section 77-27-11(3) that are not required by either the United States Constitution or the Utah Constitution.

¶44 First, we must consider section 77-27-11(3) in context with its surrounding sections. Section 77-27-11(4) states that “[u]pon a finding of probable cause, a parolee may be further detained or imprisoned again pending a hearing by the board or its appointed examiner.” Utah Code Ann. § 77-27-11(4) (2003). Thus, although section 77-27-11(3) does not demand an immediate determination of probable cause, section 77-27-11(4) ensures that a determination of probable cause will be made before the parolee is further detained or imprisoned.

¶45 Although this would not meet the requirements of due process for an ordinary citizen, this requirement is sufficient in the case of a parolee. It is well-established that a parolee has a more limited right to due process than other citizens. In recognition of this limited interest, the United States Supreme Court has defined the appropriate test thus:

[W]hen [a] parolee is arrested and detained, usually at the direction of his parole officer, ... due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available. Such an inquiry should be seen as in the nature of a “preliminary hearing” to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions. never occurred. The court of appeals disagreed with American on this point and affirmed the trial court’s judgment. It concluded that the listing agreement entitled Fairbourn to a commission when American accepted an offer from Rochelle and further noted that the existence of “due and payable at closing” language generally does not create a condition precedent to receipt of a commission. The court of appeals’ decision on this ground dispensed with its need to consider American’s other arguments on appeal.

Morrissey, 408 U.S. at 485, 92 S.Ct. 2593 (citations omitted).

¶ 46 We have no doubt that where a warrant-issuing Board member may ask the Department of Corrections to determine if there is probable cause to detain a parolee, and probable cause must be found in order to further detain the parolee, the “minimal inquiry” requirements of due process of both the Utah and the United States Constitutions are met.

E. Mr. Jones’ Cross-Appeal

¶47 Finally, Mr. Jones asks us to review the decision of the trial court to deny him an evidentiary hearing on his claim that his guilty plea and admissions to parole violations were the products of his illegal arrest following a warrant issued by the Board. This issue is rendered moot by our holding that the retaking warrant which resulted in Mr. Jones’ apprehension was constitutional, and thus, that his arrest was not illegal.

CONCLUSION

¶48 We reverse the decision of the trial court that Utah Code section 77-27-11(3) is unconstitutional, and remand for actions consistent with this opinion.

¶ 49 Chief Justice DURHAM, Associate Chief Justice WILKINS, Justice PARRISH, and Judge HEFFERNAN concur in Justice NEHRING’S opinion.

¶ 50 Having disqualified himself, Justice DURRANT does not participate herein; District Judge PAMELA G. HEFFERNAN sat.

      . Similar examples can also be found in other areas of the government. In practice, enforceable judgments are routinely entered by justice court judges and volunteer judges pro tempore who preside in many small claims courts. Like article VIII judges, these judges exercise the judicial power of courts, a power which we have defined as “ 'the power to hear and determine controversies between adverse parties and questions in litigation.' ” Ohms, 881 P.2d at 849 (quoting Timpanogos Planning & Water Mgmt. Agency v. Cent. Utah Water Conservancy Dist., 690 P.2d 562, 569 (Utah 1984)). Like commissioners and members of the Board, these judges are not subject to article VIII's selection and retention requirements, but only commissioners are assigned to courts of record and are therefore ineligible to perform "core judicial functions” under Ohms and Thomas.

      . The Board has authority to commute or terminate the sentence, including release on parole, of any offender under the jurisdiction of the Department of Corrections. Utah Code Ann. § 77-27-9 (2003).

      . This issue, like the issue discussed in part C of this opinion, was raised for the first time by the trial court in a footnote. It was not raised at trial, nor was a factual record developed on this matter. There is no indication that probable cause did not exist to retake Mr. Jones; to the contrary, in addition to whatever parole violations he may have committed, he also committed aggravated robbery while on parole.

      . We note, as an initial matter, that although the statute does not explicitly require probable cause, the administrative rules governing the issuance of a warrant do:
      Warrants shall be issued only upon a showing that there is probable cause to believe that a parole violation has occurred. A certified Warrant Request shall be submitted by the parole agent setting forth reasons to believe that the named parolee committed specific parole violations. The request may be accompanied by supporting documentation such as police reports, incident reports, and judgment and commitment orders. Upon approval of the request by the Board, a Warrant of Arrest shall be issued to arrest, detain, and return to actual custody the parolee named therein.
      Utah Admin. Code R671-510-1 (2003).


source: Caselaw Access Project

author: WILKINS, Associate Chief Justice:

license: Public Domain

text:
    2004 UT 54
    FAIRBOURN COMMERCIAL, INC., a Utah corporation, Plaintiff and Respondent, v. AMERICAN HOUSING PARTNERS, INC., a Delaware corporation, Defendant and Petitioner.
    No. 20030377.
    Supreme Court of Utah.
    July 2, 2004.

      Neil R. Sabin, Salt Lake City, for plaintiff.
    Dennis K. Poole, John L. Adams, Salt Lake City, for defendant.
   WILKINS, Associate Chief Justice:

¶ 1 Defendant American Housing Partners, Inc. challenges the court of appeals’ decision affirming the trial court’s judgment in favor of plaintiff Fairbourn Commercial, Inc., which awarded Fairbourn a real estate commission of $153,000 for American’s breach of a single party listing and sale agreement. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 In August 1999, American, an experienced real estate developer, entered into a single party listing and sale agreement with Fairbourn, a real estate brokerage, for the sale of ninety-nine undeveloped lots located in West Jordan (the “property”). The listing agreement identified the prospective buyer as Rochelle Properties, LC. According to the listing agreement, if Fairbourn procured an offer from Rochelle, and if American accepted the terms of the offer, American would pay Fairbourn a commission of $1,500 per lot. The agreement also stipulated that “[all commissions] shall be due and payable at closing.” In addition, the agreement specified a sale price of $2,277,000 for the property-

¶ 3 After some negotiation, Rochelle and American eventually agreed to terms for the sale of the property. One clause of the purchase contract between Rochelle and American required Rochelle to demonstrate * “financial capability to close” on the sale of the property within fourteen days from execution of the purchase contract. Pursuant to this clause, Rochelle submitted two different letters from First Security Bank attesting to Rochelle’s financial capability. However, American rejected the bank’s assurances and cancelled the contract without further explanation. American later sold the property to another buyer at a higher price and did not pay a commission to Fairbourn for procuring an offer from Rochelle.

¶ 4 Fairbourn sued American to recover the commission to which it believed it was entitled. The trial court found that American breached the listing agreement and awarded Fairbourn its commission plus attorney fees and costs. American appealed, challenging the trial court’s determination that the terms of the purchase contract were ambiguous, the court’s taking of extrinsic evidence, and its factual findings based on the evidence submitted. Fairbourn Commercial, Inc. v. Am. Hous. Partners, Inc., 2003 UT App 98, ¶ 14, 68 P.3d 1038. American also argued that the listing agreement did not entitle Fairbourn to a commission until the closing of the Rochelle sale, which

¶ 5 On certiorari, American argues that the court of appeals erred when it concluded that the “due and payable at closing” language did not require consummation of the transaction before Fairbourn was entitled to its commission. Alternatively, it argues that the phrase “due and payable at closing” is ambiguous because it could reasonably be interpreted to mean that payment of the commission was , conditioned upon closing of the transaction.

ANALYSIS

I. STANDARD OF REVIEW

¶ 6 On certiorari, we review the court of appeals’ decision and not the trial court’s. State ex rel. M.W., 2000 UT 79, ¶ 8, 12 P.3d 80. In addition, “[questions of contract interpretation not requiring resort to extrinsic evidence” are matters of law, which we review for correctness. Zions First Nat’l Bank, N.A. v. Nat’l Am. Title Ins. Co., 749 P.2d 651, 653 (Utah 1988).

II. BROKERAGE COMMISSION RULES

¶ 7 The first issue American raises on certiorari is whether the court of appeals erred in adopting a general rule that the phrase “at closing,” by itself, is not a condition precedent to a broker’s receipt of commission. Although not dispositive in this case, the general rule in Utah is that a real estate broker is entitled to its commission when it has procured a buyer who is “ready, willing and able and who is accepted by the seller.” Bushnell Real Estate, Inc. v. Nielson, 672 P.2d 746, 751 (Utah 1983). American urges us to discard this rule in favor of the rule first enunciated in Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 236 A.2d 843 (1967), which imbues all broker listing agreements with the implied condition that commission is due only if the underlying real estate transaction is consummated. Id. at 855. We decline to adopt this rule because absent a contractual provision conditioning a broker’s commission on a buyer’s performance, “[t]he broker is not an insurer of the subsequent performance of the contract.” Bushnell, 672 P.2d at 751.

¶ 8 The default ready, willing, and able rule may, however, be avoided by agreement. See, e.g., Lane — Real Estate Dep’t Store, Inc. v. Lawlet Corp., 28 N.Y.2d 36, 319 N.Y.S.2d 836, 268 N.E.2d 635, 639 (1971). In this case, the parties drafted a listing agreement that avoids the rule. Paragraphs 2 and 4 of the listing agreement provide:

I[f] ... [Fairbourn] procures, or presents an offer to purchase said property from [Rochelle], at the price and upon the terms and conditions set forth herein, or at any other price or upon any other terms or conditions acceptable to me, I agree to pay a commission equal to $1,500.00 per lot[.]
A[ll commissions] shall be due and payable at elosing[.]

¶ 9 Neither of these provisions addresses Rochelle’s ability to buy the property. Instead, the provisions define what constitutes “procuring” Rochelle as a buyer. The agreement thus renders Rochelle’s fitness as a buyer unnecessary for Fairbourn to earn a commission. Consequently, the ready, willing, and able rule does not apply.

III. DUE AND PAYABLE CLAUSE

¶ 10 The next issue American raises is whether the phrase “[a]ll commissions shall be due and payable at closing” is ambiguous, thereby leading to the conclusion that this clause may represent a condition precedent to payment of the commission. This question is a matter of contract interpretation. “When interpreting a contract, a court first looks to the contract’s four corners to determine the parties’ intentions, which are controlling. If the language within the four corners of the contract is unambiguous ... a court determines the parties’ intentions from the plain meaning of the contractual language as a matter of law.” Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d 1179 (internal citations omitted). “A contract provision is ambiguous if it is capable of more than one reasonable interpretation because of ‘uncertain meanings of terms, missing terms, or other facial deficiencies.’ ” Winegar v. Froerer Corp., 813 P.2d 104, 108 (Utah 1991) (quoting Faulkner v. Farnsworth, 665 P.2d 1292, 1298 (Utah 1983)). When interpreting a contract, a court is to consider each provision “in relation to all of the others, with a view toward giving effect to all and ignoring none.” Green River Canal Co. v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d 1134 (internal quotations omitted).

¶ 11 Here, the due and payable clause is unambiguous, so we review the parties’ intentions by examining the plain language of the contract. The plain language of the contract indicates that the due and payable clause is merely a timing clause. If instead we give the clause the construction urged by American, the provision for earning commission would be meaningless. American’s promise that if “[Fairbourn] ... procures, or presents an offer ... from [Rochelle] ... I agree to pay a commission” would have no meaning because the due and payable clause would completely control the earning of commission. We cannot ignore American’s promise to pay commission upon procurement of a buyer because we must give effect to each contractual provision. See id. Thus, the only tenable conclusion is that the due and payable clause defines the time for paying commission rather than defining a prerequisite to earning commission.

¶ 12 Fairbourn procured Rochelle as a buyer of American’s property even though a closing was not reached. Therefore, Fairb-ourn is entitled to its commission pursuant to the listing agreement.

CONCLUSION

¶ 13 We affirm the court of appeals’ decision. In doing so, we recognize that the ready, willing, and able rule applies to real estate listing agreements but that in this case the parties modified the listing agreement to be independent of the rule. In addition, the due and payable clause in the listing agreement is merely a timing clause and not a precondition to payment. Therefore, we hold, as a matter of law, that Fairb-ourn earned its commission by procuring an acceptable offer from Rochelle. Affirmed.

¶ 14 Chief Justice DURHAM, Justice DURRANT, Justice PARRISH, and Judge JONES concur in Associate Chief Justice WILKINS’ opinion.

¶ 15 Having disqualified himself, Justice NEHRING does not participate herein; District Judge ERNEST W. JONES sat.

      . The purchase contract does address Rochelle's financial fitness in the financial capability clause, which provides that:
      Within Fourteen days after execution of this Agreement by both parties, [Rochelle] shall supply to [American] with evidence of financial capability to close on the Property within the time frame referenced above. In the event [Rochelle] is unable to provide said evidence, [American] shall at its sole option cancel this Agreement and neither party shall have any further obligation to the other.

        However, the purchase contract is separate from the listing agreement, so the financial capability clause does not invoke the ready, willing, and able rule.


author: BENCH, Associate Presiding Judge:

text:
    2004 UT App 206
    STATE of Utah, Plaintiff and Appellee, v. Daniel J. MARONEY, Defendant and Appellant.
    No. 20030519-CA.
    Court of Appeals of Utah.
    June 17, 2004.

      Joan C. Watt, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before BENCH, Associate P.J., DAVIS and GREENWOOD, JJ.
   OPINION

BENCH, Associate Presiding Judge:

¶ 1 Defendant Daniel Maroney appeals his sentences for sexual abuse of a minor, a second degree felony, in violation of Utah Code Annotated section 76-5-404(1) (1999), and lewdness involving a child, a class A misdemeanor, in violation of Utah Code Annotated section 76-9-702(5) (1999). We remand for findings.

BACKGROUND

Preliminary Proceedings

¶2 Maroney met R.B., a twelve-year-old boy, at the Steiner Aquatic Center where Maroney was a swimming instructor. Thereafter, in the summer of 2000, Maroney met R.B.’s mother, Bernadette, and dated her until approximately February 2002. During that period, R.B. spent the night at Maro-ney’s one bedroom apartment fourteen or fifteen times without Bernadette being present. Maroney and R.B. would share a bed and sleep in their underwear. Maroney would also regularly kiss R.B. on the mouth, and even try to French-kiss him. On one occasion, when they were alone, Maroney instructed R.B. on how to masturbate. On another occasion, while R.B. was sleeping at Moroney’s apartment, Maroney pulled down R.B.’s underwear, rubbed around R.B.’s genitals and then rubbed R.B.’s penis. Maroney told R.B. not to tell anyone.

¶ 3 In July 2002, Bernadette contacted police to report that R.B. had disclosed to her that he had been touched inappropriately by Maroney. In August 2002, Maroney was charged with aggravated sexual abuse of a child and lewdness involving a child. After waiving a preliminary hearing, Maroney was bound over and pleaded guilty to one count of sexual abuse of a child, and one count of lewdness involving a child. Maroney admitted that he had touched R.B.’s genitals for his own sexual gratification and had verbally instructed R.B. on how to masturbate. The trial court accepted Maroney’s guilty pleas and ordered a presentence investigation report from Adult Probation & Parole (APP) in preparation of sentencing.

Presentence Investigation Report (PSI)

¶4 Maroney acknowledged his crimes to the PSI investigator (the investigator). He acknowledged that he and R.B. would greet each other with a hug and kiss. Maroney also admitted that he should not have instructed R.B. on how to masturbate. Maro-ney further acknowledged that he had previously abused his then nine-year-old stepson through fondling, masturbation, sodomy, and mutual oral sex. As part of a plea in abeyance in that case, Maroney received counseling through Davis County Mental Health.

¶ 5 Maroney informed the investigator that he first became aware of his attraction to young boys when he was in his twenties, but had been able to control himself through prayer. Maroney also acknowledged that a nephew once alleged that Maroney had abused him, but the charges were dropped after the boy recanted his statement. Further, Maroney admitted that he had abused other family members. However, when pressed about the identity of these “other family members,” Maroney stated that “there aren’t any children out there. It was a long time ago.”

¶ 6 Maroney acknowledged that he had abused alcohol and marijuana in the past. The investigator recognized that it did not appear that alcohol was a factor in the present offenses. Nevertheless, the investigator opined that Maroney may have had a more severe alcohol problem than he had acknowledged.

¶ 7 Reflecting on his mental health, Maro-ney admitted that he had contemplated suicide for many years, but never seriously. Maroney also felt that he had overcome the emotional distress in connection to the present offenses and was ready to “deal with it.” Maroney stated that his only referral to mental health professionals was immediately following his sentencing for sexually abusing his nine-year-old stepson. However, the investigator found police reports reflecting statements by Maroney’s ex-wife that Maroney had serious mental health issues such as split personality, had often threatened bodily harm to himself and his family, and had once threatened to burn down their house with her and the children inside.

¶ 8 The investigator noted that Maroney was cooperative and forthcoming in providing background information, and accepted responsibility for the present offenses. The investigator also noted that Maroney acknowledged his need and desire to receive specialized sex offender treatment. Furthermore, the investigator opined that Maroney “may have other mental health issues, in addition to his sexual attraction to young boys.”

¶ 9 The investigator spoke with several people familiar with Maroney, including Bernadette. Bernadette stated that she was concerned about Maroney and feared that Maroney would bother her and R.B. if he got out of jail. She also expressed that she would have a hard time facing Maroney again. The investigator also spoke with Ma-roney’s daughter, Christina. While very supportive of her father, Christina acknowledged that she had been shielded from the type of abuse Maroney inflicted on his stepsons. She also reported that Maroney had told her that although he had not abused the victim in the present case, he decided to plead guilty to protect his family from the trauma of a trial. In her letter to the court, Christina restated that her father was not a violent man. The investigator also spoke with Ma-roney’s ex-wife, Pat, who stated that Maro-ney had abused her three sons, and expressed concerns that Bernadette might be in danger. In her letter to the court, Pat labeled Maroney as violent, devious, and a predator who preyed on young children from positions of trust. Pat urged the court to impose the maximum sentence available.

¶ 10 The investigator received letters from Brian and Richard, two of Pat’s sexually abused sons. Brian wrote that Maroney had abused him for about eight years and detailed how the abuse had taken place. Brian then described the pain and shame he had felt as a result of the abuse. Richard wrote of the enforcement system’s failure to help him, and of his willingness to testify at Maro-ney’s sentencing. Richard reported that Ma-roney had regularly abused him sexually for about nine years. Richard also wrote that Maroney had physically abused him several times by beating him with a plastic baseball bat, punching him in the stomach, or throwing him against a car. Richard claimed that Maroney was “a master of psychological manipulation.”

¶ 11 The investigator also received a number of letters from parents of Maroney’s swimming students. They collectively supported Maroney and described him as an exemplary swimming instructor who never behaved inappropriately with their children and could not be a child molester.

¶ 12 Considering all the information obtained, the investigator concluded that Maro-ney “presents an unacceptable risk to young boys in the community, and incarceration is the only appropriate sentencing alternative in this case.” The investigator noted that Maroney appeared amenable for specialized sex offender treatment, but such treatment should be provided only in a secure setting. In accord with its investigator’s evaluation, APP recommended that Maroney be incarcerated for the statutory term of one-to-fifteen years for sexual abuse of a child, and the maximum statutory term of twelve months for lewdness involving a child.

Initial Sentencing Hearing

¶ 13 At the initial sentencing hearing, all parties noted receipt of the PSI. Defense counsel indicated that he and Maroney had reviewed the PSI, along with the letters of support. The trial court then stated that it had read all of the letters, but was concerned that Maroney had committed offenses similar to the ones committed years earlier. Defense counsel argued that Maroney should not be held responsible for acts allegedly committed many years ago, and emphasized Maroney’s favorable qualities. Nevertheless, the trial court reiterated its concerns about the pattern of abuse demonstrated by Maro-ney and ordered that Maroney undergo a diagnostic evaluation.

Diagnostic Evaluation

¶ 14 In addition to the police reports alluded to by the PSI investigator, the diagnostic evaluator (the evaluator) also identified additional police reports, including a 1984 report alleging that Maroney had made death threats against his ex-wife. One report described an encounter with police while Maro-ney was naked and intoxicated. In another report, Maroney was found in an incoherent state with numerous medications nearby. Other incidents involved Maroney “continually calling, harassing, and stalking” Bernadette, which ultimately resulted in a cease- and-desist order.

¶ 15 The evaluator inquired about the nature of Maroney’s treatment at Davis County Mental Health. Maroney responded that his therapy was primarily focused on marital issues, rather than on sex offender issues. Yet when asked about the nature of his marital conflicts, Maroney admitted that his marital conflicts were primarily about his sexual abuse of his stepsons. Noting the contradictions in Maroney’s statements, the evaluator expressed doubts about the true nature of Maroney’s treatment.

¶ 16 The evaluator further noted that while Maroney was relatively honest about his sexual assaults on children, he continued to minimize the level of domestic violence he had committed against his ex-wife and stepsons. The evaluator considered Maroney a potential danger to the community and recommended that he be committed to prison.

Psychological Evaluation

¶ 17 Maroney later underwent a psychological evaluation with Dr. Anderson. Dr. Anderson reported that Maroney first had sexual contact with boys at the age of twelve and Maroney was himself regularly molested. Further, Dr. Anderson reported that Maro-ney absolutely denied using violence on any of his victims or making threats to his ex-wife. Still, Maroney admitted that he had hit his stepsons a few times.

¶ 18 For the first time, Maroney described himself as an alcoholic and reported smoking marijuana regularly over the past five years. Maroney also claimed to have suffered from depression, which he attempted to relieve through alcohol. Maroney further acknowledged having had thoughts about suicide.

¶ 19 Dr. Anderson conducted several psychological tests on Maroney. On one test, Maroney scored similarly to other individuals who are described as rebellious, immature, self-centered, extroverted, and impulsive. On another, Maroney attempted to portray himself in an unrealistically favorable manner. On another test, Maroney wrote “I am a super dad,” although he admitted regret for hurting his victims. On yet another test, Maroney admitted his sexual deviance and confirmed that he had sexually assaulted young boys. Dr. Anderson reported that Maroney “demonstrates a pattern of disregard for, and violation of the rights of others.” Dr. Anderson also reported that Maro-ney demonstrated virtually “no remorse for his victims, and appeared completely preoccupied with his own well-being.” Dr. Anderson further opined that there was reason to believe that there were additional undisclosed victims. Dr. Anderson finally concluded that Maroney’s “antisocial traits, when combined with pedophilia, place him at a high risk to re-offend sexually.”

Sentencing Hearing

¶ 20 At the sentencing hearing, the court indicated that it had reviewed the PSI and the diagnostic and psychological evaluations. Defense counsel acknowledged that he too had reviewed those documents with Maro-ney.

¶ 21 Defense counsel acknowledged that Maroney had committed criminal offenses twenty years ago and in the instant case. However, counsel pointed out discrepancies in the sentencing reports regarding the nature of Maroney’s treatment at Davis County Mental Health. Counsel then invited the trial court to apply its fact-finding function to evaluate the nature of Maroney’s treatment, which counsel recognized offered “rehabilitative services in the area of sex abuse,” while Maroney maintained the treatment was primarily “focused on marital issues.” Counsel attempted to minimize the significance of Maroney’s actions, arguing that Maroney’s conduct fell at the lower end of the sexual abuse spectrum. Counsel also argued that the concerns of the authors of the presen-tence reports — the investigator, the evaluator, and Dr. Anderson — were “not well-founded” as to Maroney’s violent nature.

¶ 22 The court acknowledged that Maroney had taken responsibility for his conduct and suggested that Maroney was amenable to treatment. However, the court stated that it was “exceptionally concerned” that, although Maroney had been aware of his attraction toward young boys for many years, he had failed to seek appropriate treatment and had placed himself in situations where he could easily find new victims. Noting that it was less concerned with the punitive aspect of sentencing than with public safety, the court finally sentenced defendant to prison. Maro-ney now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 23 On appeal, Maroney argues that the trial court erred by failing to determine on the record the accuracy of contested information contained in the sentencing reports. “Whether the trial court properly complied with a legal duty to resolve on the record the accuracy of contested information in sentencing reports is a question of law that we review for correctness.” State v. Veteto, 2000 UT 62, ¶ 13, 6 P.3d 1133.

¶ 24 Maroney also contends that trial court committed plain error in relying on sentencing reports that contain unreliable information. This issue also presents a question of law that is reviewed for correctness. See State v. Johnson, 856 P.2d 1064, 1073 (Utah 1993) (applying a correctness standard in reviewing the issue of whether reports considered at sentencing were unreliable and violated due process).

ANALYSIS

I.

¶25 Maroney first argues that the trial court failed to determine on the record the accuracy of some information contained in the sentencing reports. Specifically, Ma-roney contends that the trial court failed to determine the extent of (1) his prior treatment at Davis County Mental Health, and (2) his violent nature.

¶26 It is well established that “any alleged inaccuracies in the presentence investigation report, which have not been resolved by the parties and the department prior to sentencing, shall be brought to the attention of the sentencing judge.” Utah Code Ann. § 77 — 18—1(6)(a) (2003). Compliance with section 77-18-1(6)(a) further “requires the sentencing judge to consider the party’s objections to the report, make findings on the record as to whether the information objected to is accurate, and determine on the record whether that information is relevant to the issue of sentencing.” State v. Jaeger, 1999 UT 1, ¶ 44, 973 P.2d 404. However, “if a party fails to challenge the accuracy of the presentence investigation report at the time of sentencing, that matter shall be considered to be waived.” Utah Code Ann. § 77-18-1 (6) (b).

¶ 27 The State concedes that Maroney sufficiently “challenged the accuracy” of the extent of Maroney’s prior treatment. Id. We agree. After pointing out the contested nature of Maroney’s treatment, counsel told the court, “you’ll have to use your fact-finding function” to resolve it. However, the court failed to make the requested findings. Thus, although the issue of the extent of Maroney’s treatment was properly brought to the court’s attention, the court clearly failed to “make findings on the record.” Jaeger, 1999 UT 1 at ¶ 44, 973 P.2d 404.

¶28 Likewise, defense counsel arguably challenged the accuracy of the extent of Ma-roney’s violent nature. Counsel observed that the authors of the sentencing reports were very concerned about domestic violence reports from Maroney’s ex-wife and his stepsons. Counsel complained that neither the evaluator nor Dr. Anderson had interviewed Maroney’s daughter, who claimed to never have witnessed violence in the home. Asserting that the authors’ views were not “well-founded,” counsel told the court, “I would ask you to bear that in mind as it relates to the idea of Maroney being amenable to treatment.” Notwithstanding counsel’s remarks, the court did not determine on the record the extent of Maroney’s violent nature.

¶ 29 We therefore remand the case so the trial court can resolve the objections to the alleged inaccuracies in the sentencing reports.

II.

¶ 30 Maroney also argues that the trial court committed plain error under State v. Johnson, 856 P.2d 1064 (Utah 1993), when the court reviewed unreliable presen-tence reports containing multiple hearsay. However, Maroney’s reliance on Johnson is misplaced. In Johnson, the defendant argued that his sentences for sexual abuse should be reversed because “the trial court erred in admitting unproven allegations that there was another victim and in placing on him the burden of refuting allegations based on double and triple hearsay.” Id. at 1070. The allegations regarding another victim were made in an Intermountain Special Abuse Treatment Center (ISAT) report and various other letters from relatives containing multiple hearsay. However, none of these allegations were reported in the PSI. In ruling in favor of Johnson, the Utah Supreme Court held that “not only did the ISAT report consist almost entirely of double and triple hearsay, but also the hearsay statements contained numerous internal inconsistencies and speculative conclusions based on incomplete information and questionable factual assumptions.” Id. at 1072. Unlike in Johnson, where the court had no evidence to corroborate the ISAT report and the letters from relatives alleging the existence of a second victim, the court in this case received abundant corroborating evidence. Thus, Maroney’s plain error argument is without merit.

CONCLUSION

¶ 31 We hold that the trial court erred in failing to resolve Maroney’s objections regarding the scope of his prior treatment and the extent of his violent nature, and therefore remand so the court can resolve the objections on the record. If resolution of the objections affects the trial court’s view of the appropriate sentence, the trial court may then revise the sentence accordingly. See State v. Finlayson, 2004 UT 10, ¶ 13, 84 P.3d 1193.

¶ 32 WE CONCUR: JAMES Z. DAVIS and PAMELA T. GREENWOOD, Judges.

      . "In general, to establish the existence of plain error and to obtain appellate relief from an alleged error that was not properly objected to, the appellant must show the following: (i) An error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993) (citations omitted).


author: GREENWOOD, Judge:

text:
    2004 UT App 203
    Barry SANNS, Plaintiff and Appellant, v. BUTTERFIELD FORD, a Utah corporation; Ford Motor Company, a Delaware corporation; and Does 1 through 30, Defendants and Appellee.
    No. 20030497-CA.
    Court of Appeals of Utah.
    June 17, 2004.

      David R. Olsen and Paul M. Simmons, Dewsnup King & Olson, Salt Lake City, and Timothy J. Ryan, Timothy J Ryan & Associates, Huntington Beach, California, for Appellant.

      Bryon J. Benevento, Brian C. Cheney, and David N. Wolf, Snell & Wilmer, Salt Lake City, for Appellee.
    Before BENCH, Associate P.J., GREENWOOD and ORME, JJ.
   OPINION

GREENWOOD, Judge:

¶ 1 Appellant Barry Sanns (Sanns) appeals the trial court’s grant of Appellee Butterfield Ford’s (Butterfield Ford) Renewed Motion for Summary Judgment. Sanns argues that there exists a genuine issue of material fact as to whether Butterfield Ford was negligent in selling a fifteen-passenger van to the State of Utah without adequately warning of the van’s propensity to roll over when loaded. Sanns further argues that even if Butterfield Ford was not negligent in selling the van, the Utah Liability Reform Act (ULRA) nevertheless allows Butterfield Ford to be apportioned fault under the doctrine of strict liability. We affirm.

BACKGROUND

¶ 2 On December 7, 2000, Sanns, a guard for the Utah Department of Corrections, was riding as a passenger in a 1999 Ford Econo-line E-350 van when the van rolled several times, seriously injuring Sanns and other passengers. The van was designed and manufactured by Ford Motor Company (Ford) and delivered to Butterfield Ford. Butterfield Ford sold the van in June 1999, in a fleet sale, to the Utah Department of Corrections.

¶ 3 In June 2002, Sanns brought this action against Ford and Butterfield Ford asserting claims for strict liability, breach of warranty, and negligence. Butterfield Ford moved for summary judgment and submitted an affidavit of its president, Brent E. Butterfield, in support of its motion. The trial court initially denied the motion for summary judgment and granted Sanns 240 days to conduct discovery in order to controvert the assertions in Mr. Butterfield’s affidavit. After additional discovery, including Sanns deposing Mr. Butterfield, Butterfield Ford renewed its motion for summary judgment. The trial court then granted Butterfield Ford’s renewed motion for summary judgment. The court found that (i) Sanns failed to present any credible evidence to show that Butterfield Ford was anything but a passive distributor of the van; (ii) Butterfield Ford did not design, manufacture, test, assemble, package, alter, or ship the vehicle; (iii) the fact that Butterfield Ford acknowledged that a van has a higher center of gravity than a sports car does not create a genuine issue of material fact that the dealer knew of any design defects in the van; and (iv) the ULRA does not permit a cause of action for strict liability against a purely passive distributor where the fault complained of arises out of a design or manufacturing defect, and where the man-ufaeturer/designer of the product is a named party in the action.

ISSUES AND STANDARD OF REVIEW

¶ 4 When reviewing an appeal from a trial court’s grant of summary judgment, we view the facts “in a light most favorable to the losing party below. And in determining whether those facts require, as a matter of law, the entry of judgment for the prevailing party below, we give no deference to the trial court’s conclusions of law: those conclusions are reviewed for correctness.” Penrose v. Ross, 2003 UT App 157,¶ 7, 71 P.3d 631.

¶ 5 The determination of whether a passive seller of a product can be held strictly liable under the ULRA is based on the trial court’s interpretation of a statute, which we review for correctness without deference to the trial court’s conclusions. See A.K. & R. Whipple Plumbing & Heating v. Aspen Constr., 1999 UT App 87,¶ 10, 977 P.2d 518.

ANALYSIS

I. Negligence

¶ 6 Sanns argues the trial court erred in granting Butterfield Ford summary judgment on Sanns’s negligence claim because there existed genuine issues of material fact. “A genuine issue of fact exists where, on the basis of the facts in the record, reasonable minds could differ on whether defendant’s conduct measures up to the required standard.” Jackson v. Dabney, 645 P.2d 613, 615 (Utah 1982). Furthermore, “the mere existence of genuine issues of fact ... does not preclude the entry of summary judgment if those issues are immaterial to resolution of the case.” Burns v. Cannondale Bicycle Co., 876 P.2d 415, 419 (Utah Ct.App.1994) (alteration in original) (quotations and citation omitted).

¶ 7 Sanns first asserts that there is an issue of material fact about whether Butter-field Ford knew or should have known of the alleged defective nature of the van. In support of this argument, Sanns presented Mr. Butterfield’s deposition testimony where he stated in part:

It has a high roof; therefore, a different center of gravity than a sports car. So obviously there is an awareness, for lack of a better term, that it handles differently than a Mustang Cobra....
It’s tall and square. It’s bound to have different characteristics than the 911.

¶ 8 Butterfield Ford does not dispute that it knew that this van had a higher center of gravity and handled differently than passenger vehicles. This eommonsense observation could be made by many people inside and outside of the automotive industry. Sanns has failed to explain how, with this recognition that most vans have a higher center of gravity than most cars, Butterfield Ford knew or should have known that this particular van model had a manufacturing defect increasing the likelihood the van could roll over. The trial court was correct in concluding that this evidence is insufficient to demonstrate that Butterfield Ford knew or should have known of any alleged design defects in the van.

¶ 9 Furthermore, when a party fails to produce evidence sufficient to meet one of the elements of a claim, “ ‘there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.’ ” Burns, 876 P.2d at 419-20 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (other quotations and citation omitted)); see also Maack v. Resource Design & Constr., 875 P.2d 570, 578 (Utah Ct.App.1994) (affirming summary judgment because essential elements of theory were not established). A duty to warn a consumer of a defective product lies with a seller or manufacturer of a product “who knows or should know of a risk associated with its product.” House v. Armour of Am., Inc., 886 P.2d 542, 547 (Utah Ct.App.1994). The trial court found that Sanns “failed to present any credible evidence to show that Butterfield Ford was anything but a passive distributer of the vehicle in question.” We agree. Butterfield Ford, as a passive retailer and not the van’s manufacturer, did not owe a duty to its customers to warn them of a manufacturing defect that it did not know of itself. Furthermore, Sanns has provided no legal authority holding that the seller of a product, who does not know of nor should know of a defect in that product, nonetheless owes a duty of care to the purchaser.

¶ 10 The evidence presented by Sanns is insufficient to create an issue of material fact as to whether Butterfield Ford knew or should have known of the alleged defect in the van. Therefore, the trial court was correct when it granted summary judgment in favor of Butterfield Ford on Sanns’s negligence claim.

II. Strict Liability Under the Utah Liability Reform Act

¶ 11 Sanns next challenges the trial court’s determination that the ULRA, Utah Code Annotated sections 78-27-37 to -43 (2002 & Supp.2003), “does not provide a cause of action for strict liability against a purely passive distributor where the fault complained of arises out of a design or manufacturing defect, and where the manufacturer/designer of the product is a named party to the action.”

¶ 12 The ULRA states: “A person seeking recovery may recover from any defendant or group of defendants whose fault, combined with the fault of-persons immune from suit, exceeds the fault of the person seeking recovery prior to any reallocation of fault made under Subsection 78-27-39(2).” Utah Code Ann. § 78-27-38(2) (2002). “Fault” is defined in the ULRA to include claims for strict liability and product liability. Specifically, “fault” is defined in the ULRA as

any actionable breach of legal duty, act, or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all its degrees, comparative negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification, or abuse of a product.

Id. § 78-27-37(2) (2002).

¶ 13 Prior to passage of the ULRA, and under the common law doctrine of joint and several liability, “a tortfeasor was potentially liable for the entire amount of a plaintiffs damages, irrespective of what proportion of fault was actually attributable to that individual tortfeasor as opposed to another joint tortfeasor.” National Serv. Indus. v. B.W. Norton Mfg. Co., 937 P.2d 551, 554 (Utah Ct.App.1997). In 1986, the Utah Legislature enacted the ULRA, eliminating joint and several liability. See id. at 554-55. Specifically, the Act states, “the maximum amount for which a defendant may be liable to any person seeking recovery is that percentage or proportion of the damages equivalent to the percentage or proportion of fault attributed to that defendant.” Utah Code Ann. § 78-27-40(1) (2002).

¶ 14 While the ULRA limits a party’s liability to its proportion of fault, this does not prohibit a factfinder from assigning liability to a party under a claim for strict liability. See S.H. ex rel. Robinson v. Bistry-ski, 923 P.2d 1376, 1382-83 (Utah 1996) (using ULRA to apportion liability under Utah’s strict liability dog bite statute and also a negligence theory). This is clearly indicated by the statute’s inclusion of strict liability along with negligence, assumption of risk, breach of express or implied warranty of a product, and products liability as causes of action subject to the ULRA. See Utah Code Ann. § 78-27-37(2).

¶ 15 Recognizing that under the ULRA, a party can be apportioned liability under a strict liability cause of action, see id., we next address the ULRA’s effect on strict liability claims against multiple tortfeasors; in this case, both a product’s seller and its manufacturer. Sanns correctly argues that under general tort law principles, as between an injured buyer of a product, and the seller of the product, the seller must bear the liability. See Schaerrer v. Stewart’s Plaza Pharmacy, 2003 UT 43,¶ 16, 79 P.3d 922; see also Restatement (Second) of Torts § 402A (1965). However, when the product’s manufacturer is also named in the suit, this traditional principle conflicts with the clear language and intent of the ULRA, which states that “[n]o defendant is liable to any person seeking recovery for any amount in excess of the proportion of fault attributed to that defendant under Section 78-27-39.” Utah Code Ann. § 78-27-38(3).

¶ 16 Some states have addressed this conflict of apportioning strict liability fault among joint tortfeasors by explicitly prohibiting strict liability and other causes of action against passive sellers unless the product manufacturer is unreachable or unable to satisfy the judgment. See, e.g., Idaho Code § [6-1407] 6-1307(4)(a), (b) (2004) (stating seller liable if manufacturer is not subject to service of process, or is insolvent); 735 Ill. Comp. Stat. 5/2-621(b)(1) (2004) (allowing for dismissal of nonmanufacturer defendant from strict liability product claim upon its certifying correct identity of manufacturer of allegedly defective product); Kan. Stat. Ann. § 60-3306(d), (e) (2003) (seller not liable if not manufacturer, manufacturer is subject to service of process, or if reasonably certain that judgment against manufacturer would be satisfied); Wash. Rev.Code § 7.72.040(2)(a), (b) (2004) (same). One court explained that the purpose of the Illinois statute “is to allow a nonmanufacturing defendant, who has not been shown to have created or contributed to the alleged defect, to defer liability upstream to the ultimate wrongdoer, the manufacturer.” Saieva v. Budget Rent-A-Car of Rockford, 227 Ill.App.3d 519, 169 Ill.Dec. 334, 591 N.E.2d 507, 511 (1992). Utah law, without such an explicit statutory exclusion, is not as clear as to the apportionment of liability between a passive product seller and the manufacturer. We therefore further examine the ULRA to determine if it is, despite its ambiguity, in consonance with the other states’ statutes.

¶ 17 The requirements of the ULRA encourage the inclusion of all defendants either party believes may be at “fault” as defined in the Act. Under the ULRA, a plaintiff or defendant may join any other party who “may have caused or contributed to the injury or damage for which recovery is sought, for the purpose of having determined their respective proportions of fault.” Utah Code Ann. § 78-27-41(1) (2002). In fact, defendants who seek to allocate fault to other defendants must identify in their answers those persons who may be at fault. See id. § 78-27-41(4). Therefore, in cases where strict liability is alleged, all other available defendant tortfeasors should be joined and identified in order to apportion fault properly in the case.

¶ 18 The ULRA, and its elimination of joint and several liability, does not eradicate the need to compare fault between a defendant who is strictly liable, and a code-fendant who is negligent. See Bistryski, 923 P.2d at 1380, 1382-83 (comparing fault under the ULRA between a strictly liable defendant and a negligent codefendant); see also Red Flame, Inc. v. Martinez, 2000 UT 22,¶ 10, 996 P.2d 540 (holding that the ULRA applies to the strict liability of the Dramshop Liability Act). In debating its passage, Senator Lyle Hillyard raised a question on the Senate floor about the legal effect of the statute stating, in part, “I could see liability being found against [a party] on strict liability with absolutely nothing to do with fault because of public policy reasons.” Floor Debate, remarks of Sen. Lyle Hillyard, 46th Utah Leg., Gen. Sess. (February 12, 1986) (Sen. CD No. 63, 6). In response, Steve Sorenson, Assistant Attorney General, stated:

What it says is if you have multiple defendants, one of whom is guilty of negligence, one of whom is guilty of strict liability, the jury in apportioning fault, apportions fault between those parties regardless of the theory on which the party is liable.... [I]f you have different] defendants guilty on different theories of liability, nonetheless that’s all considered fault for the purpose of apportioning damages by the jury.

Id. (remarks by Assistant Attorney General Steve Sorenson).

¶ 19 Sanns argues that in this case, it is appropriate to assert a strict liability claim against both a retailer and a manufacturer because “to the extent the retailer is held liable for the harm caused by the defective product, it may have a claim for indemnity against the manufacturer.” This argument is unpersuasive and inconsistent with prior interpretations of the ULRA. The similar doctrines of indemnity and contribution both “attempt to ensure that parties are not held unfairly liable to an extent greater than their degree of fault.” National Serv. Indus. v. B.W. Norton Mfg. Co., 937 P.2d 551, 554 (Utah Ct.App.1997). This was the specific legislative intent in passing the ULRA. See Sullivan v. Scoular Grain Co., 853 P.2d 877, 880 (Utah 1993) (quoting one senator, before passage of the ULRA, saying “ ‘it is the basic fairness concept we’re driving at. The defendant ought to be on the hook only for its own percentage of damages, but ought not be the guarantor for everyone else’s damages.’ ”).

¶20 Furthermore, the ULRA expressly bans suits for contribution. See National Svc. Indus. Inc., 937 P.2d at 555; see also Utah Code Ann. § 78-27-40(2) (stating defendant is not entitled to contribution from any other person). Finally, in National Service Industries, this court held that a party should not attempt to bring a subsequent suit which in effect seeks either contribution or indemnification because after the passage of the ULRA, “there remains no need for suits to redistribute loss among joint tortfeasors because no party will in any case be liable for more than its degree of fault in the underlying tort action.” National Serv. Indus., 937 P.2d at 555. Therefore, based on the language of the ULRA, the legislative history of the Act, and subsequent case law, with the elimination of joint and several liability, it is clear that fault can no longer be apportioned to one defendant with the idea that it may later seek indemnification or contribution from another.

¶ 21 Turning to the specific facts of this case, Sanns seeks to hold both Butterfield Ford and Ford strictly liable for manufacturing and design defects in the van. The trial court found, and we have affirmed, that But-terfield Ford was merely a passive retailer with no knowledge of any design or manufacturing defects. It is undisputed that Butter-field Ford did not participate in the design, manufacture, engineering, testing, or assembly of the van. All of this work was performed by Ford, the manufacturer and a codefendant. The strict liability “fault” in this case, if any, lies with the manufacturer, not with Butterfield Ford, the passive retailer. The ULRA eliminated all aspects of joint and several liability, see id. at 554, which means strict liability cannot be apportioned to Butterfield Ford, a passive seller, and also to Ford. Further, if Butterfield Ford were imposed with some or all of the fault actually belonging to Ford, Butterfield Ford no longer has the option of seeking indemnification or contribution from Ford in a subsequent suit. Therefore, as long as Ford is present in the suit, there remains no reason to require Butterfield Ford to incur the time and expense of defending this action, and consequently the trial court was correct to dismiss Butterfield Ford.

CONCLUSION

¶22 The trial court was correct when it concluded that Sanns did not present any credible evidence establishing a genuine issue of material fact related to Butterfield Ford’s negligence. Mr. Butterfield’s comments about the van’s center of gravity are insufficient to demonstrate that Butterfield knew or should have known of the alleged rollover defect in the van. Thus, Sanns has not shown that Butterfield Ford breached its duty to warn its customers of any defects in the subject van of which it knew or should have known. The trial court also correctly concluded that the ULRA precludes a strict liability claim against the van’s seller, Butter-field Ford, when the van’s manufacturer, Ford, is named in the suit, and when there is no evidence that the seller knew of or contributed in any way to the van’s defective condition. Thus, we affirm the trial court’s order granting Butterfield Ford’s renewed motion for summary judgment.

¶ 23 WE CONCUR: RUSSELL W. BENCH, Associate Presiding Judge and GREGORY K. ORME, Judge.

      . Sanns's action against Ford was removed to the United States District Court for the District of Utah where Ford is seeking to consolidate it with two other cases pending in the district court involving the same accident. At the time of this appeal, Sanns had filed a motion to remand the action back to state court.

      . To further support his claim that Butterfield Ford knew or should have known of the rollover defect, Sanns introduced a National Highway Traffic Safety Administration research note issued in April 2001 and a National Transportation Safety Board safety recommendation issued in November 2002. Sanns argues that these reports somehow put Butterfield Ford on notice of the van defect. However, because both of these reports were written after the subject van was sold, they are irrelevant to the question of what Butterfield Ford knew or should have known at the time the van was sold.

      . Sanns cites Schaerrer v. Stewart’s Plaza Pharmacy, 2003 UT 43, 79 P.3d 922, for the proposition that the seller of a defective product owes users of the product a duty of care. However, Schaerrer discussed whether a pharmaceutical manufacturer and pharmacist could be liable under strict products liability, not negligence. See id. at ¶ 15. Sanns additionally cites Restatement (Second) of Torts § 401 (1965). This section, however, actually supports the position of Butter-field Ford. It states that a seller of a product can be liable if it fails to inform of a product’s danger when the seller "knows or has reason to know that the [product] is, or is likely to be, dangerous.” Id.

        . Although certain sections of the Utah Liability Reform Act have been amended since the accident occurred, the amendments do not affect the outcome of this case. Therefore, for ease of reference, we cite to the most recent version of the statutes.

      . The legislature's inclusion of "strict liability” in defining "fault” is confusing and somewhat problematic because unlike negligence, strict liability does not require an examination of a party's fault. Strict liability is "the breach of an absolute duty to make something safe.” Black's Law Dictionaiy 926 (7th ed.1999) (emphasis added); see also Floor Debate, remarks of Sen. Lyle Hillyard, 46th Utah Leg., Gen. Sess. (February 12, 1986) (Sen. CD No. 63, 6) (during debate on the passage of the ULRA, Senator Hillyard expressed his concern with the use of the terms "strict liability" and "breach of warranty” in defining fault). The use of strict liability in this statutory definition should be viewed only as a cause of action subject to the ULRA, rather than changing the traditional use of the term fault to somehow include strict liability, a liability concept that is unconcerned with fault in the usual sense of culpability.

      . In National Serv. Indus. v. B.W. Norton Mfg. Co., 937 P.2d 551 (Utah Ct.App.1997), this court defined "contribution” as “a method for tortfea-sors forced to pay damages greater than their proportion of fault to recover from other joint tortfeasors in a separate action.” Id. at 554. The court also described "indemnity" as "a doctrine which requires another to reimburse in full one who has discharged a common liability." Id. (quotations and citations omitted).

      . While Utah Code Annotated section 78-27-40(2) (2002) prohibits suits for contribution, Utah Code Annotated section 78-27-43 (2002) recognizes a right to indemnity and contribution based on statute, contract, or agreement. This case does not present any of these situations.