author: ORME, Judge:

text:
    2004 UT App 135
    DIAMOND B-Y RANCHES, Plaintiff and Appellant, v. TOOELE COUNTY, Defendant and Appellee.
    No. 20030578-CA.
    Court of Appeals of Utah.
    April 29, 2004.

      ■ Allen K. Young, Young, Kester & Petro, Provo, and Jonah Orlofsky, Chicago, Illinois, for Appellant.
    Jody K. Burnett, Williams & Hunt, Salt Lake City, and Douglas J. Ahlstrom, Tooele, for Appellee.
    Before Judges JACKSON, ORME, and THORNE.
   OPINION

ORME, Judge:

¶ 1 Diamond B-Y Ranches asserts that it is entitled to compensation under federal and state “taking” jurisprudence because Tooele County’s denial of Diamond’s request for a conditional use permit to operate a gravel pit rendered its property valueless. The trial court granted summary judgment in favor of the County based on its determination that Diamond had no protected property interest in the permit and did not provide sufficient evidence to allow approval of the permit. We reverse and remand.

BACKGROUND

¶ 2 Diamond owns over 190 acres of land in Tooele County, approximately one.third of which is within the northern boundary of the town of Stockton. The property has historically been used to operate a gravel pit, and Diamond purchased it either to conduct its own gravel pit operation or to sell it to a gravel extraction company. The nearest residential subdivision is a quarter mile from the southern boundary of the property. Within the property is a substantial portion of a unique geologic formation known as the Stockton Bar, which is a sediment deposit that is approximately 100 feet high and runs for several miles through the property.

¶ 3 In May 2000, Diamond contracted to sell the property to Geneva Rock Products, Inc. for six million dollars. At that time, the property was zoned such that mining and related activities, including the operation of a gravel pit, were among the activities designated as conditional uses for the property. The offer was therefore conditioned on Geneva obtaining a permit to operate a gravel pit, concrete batch plant, and asphalt hot plant on the property. On July 12, 2000, Geneva submitted its application to the County for a permit to conduct such activities on the property.

¶ 4 The application for a conditional use permit was reviewed by the Tooele County Planning Commission at a public hearing on July 19, one week after it was submitted. The Planning Commission expressed concerns about (1) negative impacts to residents, given the property’s close proximity to Stockton and (2) the destructive impact that an extraction operation would have on the Stockton Bar itself. Several citizens, including the mayor of Stockton, voiced their opinions at the meeting, primarily raising concerns about pollution and health problems that would result from a gravel pit operating next to a residential area. With regard to the Stockton Bar, the University of Utah had presented information describing the bar as an important “geoantiquity,” graduate students had “identified a potentially endangered species of plant that grows there,” and the County Engineer was concerned that “mining through the bar could disrupt the bar’s function as an ah’ dam between Tooele and Rush valleys.” The Planning Commission decided to “table the application until the County receives an Environmental Impact Statement (EIS) that fully explores every potential impact of this operation [and that t]he EIS shall be conducted at. [Diamond]’s expense by an independent firm of the County’s choosing.” A representative of Geneva indicated that Geneva “will be willing to get and pay for the study”; that “he was not aware of the concerns of the public”; that “they have encountered some other complications besides this”; and that “they will review what has been presented and could walk away from the project.” In light of the extensive opposition to the proposal, a member of the Commission “stated that she wants to let Geneva Rock know that they will have an uphill battle if the applicant proceeds.”

¶ 5 Geneva’s uphill battle became even more rigorous — or was at least temporarily delayed — the very next day. In order to reevaluate its overall policy regarding extraction operations, the County instituted a six-month moratorium on July 20, 2000, postponing consideration regarding any request for a conditional use permit to operate a gravel pit. Geneva did not further pursue the permit, and assigned its application to Diamond one week before the moratorium expired. When the moratorium expired on January 23, 2001, the County enacted an ordinance, which created a new “mining, quarry, sand and gravel excavation zone” and removed all mining activities from the list of uses conditionally permitted in the previous multiple use zoning district. Diamond’s property was not included among the areas eventually designated for extraction activities under the new zoning ordinance, but because the original application predated the zoning change, Diamond was allowed to continue to pursue the application under the previous ordinance. On January 24, 2001, Diamond “wrote the County Engineer[,] requesting that: (1) it continue to consider the pending Application on a grandfathered basis under the old zoning ordinance, because it was submitted before the ordinance was modified, and in the alternative, (2) that the County consider re-zoning Plaintiffs property to the new ... zoning classification.”

V 6 The Planning Commission next met on February 7, 2001, to discuss Diamond’s pending application under the prior ordinance. Once again, members of the Planning Commission and the public registered their concerns with the application. Diamond’s attorney, who attended the meeting, responded to those concerns by asserting that “it is their right to mine their property”; “[t]hey are willing to work with the community and be good neighbors”; and “[t]hey are willing to meet any reasonable request by the commission.” The Planning Commission, once again faced with several members of the community speaking in opposition to the proposal, “decided to table this item until an EIS is obtained by a company agreeable [to] both the county and the land owners.”

¶ 7 On March 21, 2001, the Planning Commission reconvened to consider the alternative request made by Diamond, namely “that the County consider re-zoning Plaintiffs property to the new ... zoning classification.” The Planning Commission evidently determined that Diamond’s property was not an appropriate location for extraction operations and recommended that the Tooele County Board of Commissioners deny the request to rezone. Among other things — all of which relate to concerns for the health and welfare of the citizens of Stockton and preservation of the Stockton Bar — this recommendation was based on the following: the Stockton Bar’s status as a “geoantiquity”; the possibility that “mining through the bar could disrupt the bar’s function as an air dam”; the mayor’s suggestion “that there would be many [e]nvironmental impacts on the community”; the close proximity to an “existing residential development”; and “the odors of the asphalt operation and fugitive dust.” Over the next two months, the County Commission held three hearings in which the same concerns regarding negative impacts to the Stockton Bar and the surrounding community were echoed. On May 22, 2001, the County Commission denied Diamond’s request to have its property included in the new zone that permitted mining and extraction activities.

¶ 8 Diamond continued to pursue the application under the prior ordinance and requested bids from seven engineering firms that had been approved by the Planning Commission to provide an EIS. Only two of those firms responded, and neither offered to perform all' of the services that had been requested by the Planning Commission. Both firms “proposed significant limitations on the scope of their work,” and the lowest bid “was in excess of $100,000, with the work to be completed in nine months.” On June 11,' 2001, Diamond’s attorney sent a letter to the Planning Commission explaining that “such a bid, particularly in light of the limitations of the work to be achieved, and the strong public opposition to any mining to be allowed in the area, makes the bid cost prohibitive.” Diamond explained that it “would be agreeable to the same conditions imposed on” three similar gravel extraction operations that were granted permits in 2000, “including binding plans of reclamation, and air and water quality requirements,” but that Diamond “has concluded that going forward with the full EIS, in light of the cost and public opposition, would be futile.”

¶ 9 The Planning Commission met again on July 18, 2001, to consider Diamond’s application under the previous ordinance. Diamond’s attorney attended the meeting and stated that Diamond is “willing and prepared to be bound by all restrictions that were imposed” on other gravel pits. Nonetheless, citing the same concerns as it had in the previous meetings, the Planning Commission recommended once again that the application be denied. On September 18, 2001, the County Commission voted 2-1 to deny the permit. The two commissioners that voted to deny the permit reasoned that “the health and safety of the citizens of Stockton can be in danger if that type of thing is put within that short of distance of the housing” and that “there are other uses for this type of property.” The commissioner that voted to grant the permit thought that “this is not an environmental hazard and it’s a good logical place ... and ought to be used for what it is most valuable for.”

¶ 10 Diamond filed a complaint on October 15, 2001, alleging that the County’s action constituted a taking of “all economically viable use of [its] property” and seeking $6,000,000 in damages under the “taking” clauses of the United States and Utah Constitutions. See U.S. Const. amend. 5; Utah Const. art. I, § 22. The County moved for summary judgment in August 2002, arguing that “Diamond refused to further participate in the process ... forcing the.County to deny that application for failure to satisfy the requirements of County ordinances”; “[t]he County’s land use decision was not arbitrary, capricious or illegal”; and “[t]he County’s denial of the conditional use permit did not effect a compensable taking under the Utah or United States Constitutions.” Diamond opposed the motion, but did “not challenge the wisdom of the County’s decision.” Instead, Diamond argued that “the EIS was irrelevant and the permit was denied because the County decided it would not allow a gravel pit at this location,” and, aside from operating a gravel pit, “[t]here are no other economically viable uses for the land.”

¶ 11- In support of the latter proposition, Diamond offered an affidavit of a real estate expert asserting his “opinion that the property as zoned could not be economically operated for forestry, grazing, agricultural or recreational purposes ... [and] that the only economically] viable use of [Diamond’s] property would be for the extraction of sand and gravel.” Nonetheless, the trial court granted the County’s motion for summary judgment, determining that “Diamond has no protected property interest in a conditional use” and “the County’s denial of Diamond’s conditional use permit application did not deprive Diamond of a protected property interest subject to compensation as a taking.” The court concluded that “Diamond made no meaningful attempt to satisfy the requirements for the granting of a conditional use permit and consequently received the inevitable denial of the application.” Diamond appeals.

ISSUE AND STANDARD OF REVIEW

¶ 12 Diamond argues that the denial of a conditional use permit allowing it to conduct gravel extraction and related activities on its land constitutes a “regulatory taking” com-pensable under state and federal constitutional law because the only economically viable use for the property is extracting sand and gravel. The County’s position is that no regulatory taking could have occurred because Diamond did not have a protected property interest in a conditional use permit. The County argues in the alternative that even if such a property interest does exist, the issue is not ripe for determination because the decision to deny the permit was based on Diamond’s failure to adequately pursue the application rather than on the merits of the application.

¶ 13 Summary judgment is appropriate only if “there is no genuine issue as-to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). See Guardian Title Co. of Utah v. Mitchell, 2002 UT 63,¶ 12, 54 P.3d 130. Summary judgment “should not be [granted] on conjecture, but only when the matter is clear; and in case of doubt, the doubt should be resolved in allowing the challenged party the opportunity of at least attempting to prove his right to recover.” Durham v. Margetts, 571 P.2d 1332, 1334 (Utah 1977). For this reason, “[w]e review the facts and inferences in the light most favorable to” Diamond, Callioux v. Progressive Ins. Co., 745 P.2d 838, 840 (Utah Ct.App.1987), and “we accord no deference to the trial court and review its ruling for correctness.” Price Dev. Co. v. Orem City, 2000 UT 26,¶ 9, 995 P.2d 1237.

TAKINGS LAW

¶ 14 The Takings Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, see Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 586, 41 L.Ed. 979 (1897), states that “private property [shall not] be taken for public use, without just compensation.” U.S. Const. amend. V. Although physical occupation is the clearest example of a taking that requires compensation, see, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 102 S.Ct. 3164, 3171, 73 L.Ed.2d 868 (1982), the United States Supreme Court has recognized two other categories of takings: .regulatory takings and development exactions. Regulatory takings are the type relevant to this appeal. As Justice Holmes stated in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” .Id. at 415, 43 S.Ct. at 160. A regulation has gone too far when the “regulation denies all economically beneficial or productive use of land,” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 2893, 120 L.Ed.2d 798 (1992), or, even if the property has not necessarily been deprived of all economically beneficial use, an analysis of several factors indicates that the, interference is so great that a virtual taking has nonetheless occurred. See Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 2457, 150 L.Ed.2d 592 (2001). “The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations ... [and] the character of the governmental action” are factors considered in the latter kind of cases. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). An analysis of the impact and character of the government interference aids in accomplishing “the purpose of the Takings Clause, which is to prevent the government from ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Palazzolo, 533 U.S. at 617-18, 121 S.Ct. at 2457-58 (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960)).

ANALYSIS

I. The Property Interest at Issue

¶ 15 The County’s primary response to Diamond’s complaint that “[t]he ■ actions of [the County] on September 18, 2001, damaged [Diamond]’s property, and took all economically viable use of [it]s property” is that Diamond has no protected property interest because the County has discretion to deny a conditional use perihit based on the detrimental impacts of the proposed use." The Uniform Zoning Ordinance of Tooele County echoes Utah Code Annotated section 17-27-103, which defines “conditional use” as “a land use that, because of its unique characteristics or potential impact on the county, surrounding neighbors, or adjacent land uses, may not be compatible in some areas or may be compatible only if certain conditions are required that mitigate or eliminate the detrimental impacts.” Utah Code Ann. § 17-27-103(1)(c) (2001). At the time of Diamond’s purchase, the property was zoned such that mining and related activities, including gravel extraction, were designated as conditional uses. Thus, the County’s argument is essentially that because “an owner of property holds it subject to zoning ordinances enacted pursuant to a state’s police power,” Western Land Equities, Inc. v. City of Logan, 617 P.2d 388, 390 (Utah 1980), and the ordinance affecting the property at issue designated extraction activities as a conditional use, the bundle of rights acquired by Diamond when it obtained title to the property included the right to apply for a conditional use permit, not the right to acquire the permit. However, this argument presumes that there are other rights in the bundle that would permit some other beneficial use of the property.

¶ 16 Given the conditional nature of the permit, the County argues, and the trial court agreed, that Diamond cannot state a claim under the Takings Clause because Diamond does not possess a constitutionally protected property right to issuance of such a permit. The Utah Supreme Court has held that “[i]n order to have a valid property interest in a state-created right, a plaintiff ‘must have more than a unilateral expectation of it;’ instead, the plaintiff must have a ‘legitimate claim of entitlement to it.’ ” Patterson v. American Fork City, 2003 UT 7,¶ 23, 67 P.3d 466 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). The County seizes on Diamond’s assertion that it “acquired its real property in Tooele County with the singular expectation of mining sand and gravel,” and argues that Diamond’s expectation of obtaining a conditional use permit does not equate to a legitimate claim of entitlement. The County is correct that there must first be a lawful property interest to assert a claim, but the County and the trial court have incorrectly characterized Diamond’s relevant property interest.

¶ 17 The interest Diamond asserts is not limited to the right to secure a permit that would enable Diamond to excavate sand and gravel. In fact, Diamond “does not question the validity or wisdom of [the] County’s denial of [Diamond]’s gravel pit permit application.” Instead, Diamond asserts that the effect of the County’s action leaves Diamond with over 190 acres of worthless land.

¶ 18 The trial court incorrectly viewed this case as “an action to review [the County]’s denial of a conditional use permit for a sand and gravel extraction operation” rather than as a takings case. Diamond’s constitutionally protected property interest is actually broader than a conditional use permit — it is the beneficial use of its property in general. Even though Diamond may not have a property interest in the permit itself — which the County argues obviates the need to pay just compensation under the Takings Clause — if the effect of denying the permit is “to leave [its] property economically idle, [Diamond] has suffered a taking.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 112 S.Ct. 2886, 2895, 120 L.Ed.2d 798 (1992) (footnote omitted). Thus, because the ultimate effect of denying the permit is factually in dispute, the trial court erred in granting summary judgment. If “the inquiry asks if a regulation has ‘gone too far,’ ... no answer is possible until [the] court knows what use, if any, may be made of the affected property.” MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 350, 106 S.Ct. 2561, 2567, 91 L.Ed.2d 285 (1986).

II. The Basis for the County’s Determination

¶ 19 The County’s related argument is that a regulatory taking could not have occurred because the permit was not denied by the County on the merits of Diamond’s application, but was instead denied on procedural grounds. This raises a question of ripeness. The argument is essentially that Diamond failed to present enough evidence to allow the County to conclude that a gravel operation would be compatible with the surrounding area, and thus, the decision to deny the permit was not made on the merits of the application. “[A] takings claim challenging the application of land-use regulations is not ripe unless ‘the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.’ ” Palazzolo v. Rhode Island, 533 U.S. 606, 618, 121 S.Ct. 2448, 2458, 150 L.Ed.2d 592 (2001) (quoting Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985)).

¶ 20 Section 7-3 of the Tooele County ordinance explains that “[t]he listing of a conditional' use ... does not constitute an assurance or presumption that such conditional use will be approved. Rather, each proposed conditional use shall be evaluated on an individual basis.” Section 7-5(2) of the Tooele County ordinance further states that “[a] conditional use permit shall not be authorized unless sufficient evidence is presented to establish that ... such use will not, under the circumstances of the particular case, be detrimental to the health, safety, comfort, order or general welfare of persons residing or working in the vicinity.” Clearly, the burden of persuasion is on the party seeking the permit to put forth sufficient evidence to allow the County to consider the merits of the application, but it is unclear to what lengths that party must go in seeking approval of the permit. Of course, futile efforts are not required.

¶21 The County claims that “Diamond simply made no effort to establish a record upon which the County could have approved the permit consistent with the requirements of the applicable ordinances ... and forc[ed] a decision without making any evidentiary showing.” The County also accuses Diamond of “effectively abandoning] its conditional use application without ever making any real attempt to provide the County with sufficient information regarding the potential adverse impacts of a gravel operation at that specific site.” Although the County argues that Diamond “abandoned” its application, the County does not convincingly outline what additional efforts Diamond could have made that would have allowed it to obtain the permit. Likewise, the trial court determined that “Diamond simply failed to provide the County with evidence to satisfy its burden ... [and] failed to provide an EIS .... In summary, Diamond made no meaningful attempt to satisfy the requirements for the granting of a conditional use permit and consequently received the inevitable denial of the application.”

¶ 22 The minutes of the County Commission’s meeting are instructive as to the actual reasons for the County’s denial of the permit. Incompleteness of the application or other procedural deficiencies are simply not mentioned. Relevant comments of the two commissioners voting to deny the permit were recorded as follows:

Commissioner White stated his reasoning for being opposed to this is that he feels the health and safety of the citizens of Stockton can be in danger if that type of thing is put within that short of distance of the housing. “We’re talking between 1/4 of a mile and 1/2 mile, somewhere in that range. I think it would definitely reduce the quality of life of the people who live there as well. I think the health and safety has a compelling interest over the land owner’s use.” He believes there are other uses of the land that can exist, so therefore, the county may be viewed upon as reducing what the value of the land might be otherwise, but based upon the fact that a portion of the property was sold to [a] church, in this case there is potential for the property to be used for other than what the owner wishes to use it for. The county also has on file another property owner adjacent to that property that has submitted a conditional use permit application for another request and this property could be used for what that person is using it for, windmills for power generation. Commissioner White didn’t view the denial of the [conditional use permit] as a taking. It may be reducing the value possibly, but he didn’t look at it as a taking.
Commissioner Rockwell stated he would echo the same thing. Because of the proximity to the Town of Stockton and its citizens, this property is not the place to put the gravel pit and related operations. He believes there are other uses for this [type] of property. They might not be as easy as trying to get into a gravel pit, but for the safety and health of those citizens in that area he would vote to deny the [conditional use permit].

¶23 The basis for the County Commission’s denial of the permit is contained in the above excerpt. Conspicuously absent from the comments of the commissioners is any reference to the lack of an EIS or, for that matter, any procedural failure on the part of Diamond in completing the application process.

¶24 Diamond’s persuasive response to this argument is twofold. First, the County-approved engineering firms that submitted bids to conduct the EIS offered to perform only part of the work that had been requested, with a price tag of over $100,000. Although Diamond sought bids from seven firms, none of them were able to provide the EIS the Planning Commission had requested. Second, the primary objection to operating a gravel pit on the property has consistently been the property’s proximity to the town, and the resultant health, safety, and welfare concerns. This pivotal proximity concern was not something that the preparation of an EIS could change.

¶25 Although the Planning Commission had earlier requested an EIS, neither the Planning Commission nor the County Commission based their recommendation or decision on the lack thereof. Over a year elapsed between the time that the application was submitted and the time that it was denied. During this time, Diamond sought both to have its property rezoned and to get a permit allowing gravel extraction on the property under the previous zoning ordinance. Diamond also sought to obtain the EIS, but understandably determined that it would be futile to spend over $100,000 “in light of the limitations of the work to be achieved, and the strong public opposition.” Diamond finally offered to accept a permit drawn in accordance with other permits the County had recently issued authorizing gravel operations. Since the parties agree that Diamond submitted the two-page application required of it, and the County Commission did not cite noncompliance with application procedures in denying the permit, Diamond’s takings claim is clearly ripe for determination. See Palazzolo v. Rhode Island, 533 U.S. 606, 626, 121 S.Ct. 2448, 2462, 150 L.Ed.2d 592 (2001).

CONCLUSION

¶26 We reverse the summary judgment against Diamond and remand for trial or such other proceedings as may now be appropriate.

¶ 27 I CONCUR: NORMAN H. JACKSON, Judge.

¶ 28 I CONCUR IN THE RESULT: WILLIAM A. THORNE JR., Judge.

      . As reported by staff of the Commission, Dr. Margie Chan of the University of Utah explained that
      geoantiquities are natural deposits and landscapes that record Earth's history of the geologically recent past.... There are no other Great Ice, Age lake deposits like the Great Bar at Stockton, Utah as it is the largest with thousands of years of record [of the] history of major drastic climate changes into and out of an Ice Age.

      . Diamond also brought its claim trader the Utah Constitution, which provides that "[p]rivate property shall not be taken or damaged for public use without just compensation.” Utah Const. art. I, § 22. In light of the similarity of the state and federal clauses and Diamond’s reliance on federal case law, we primarily analyze this case using federal precedent.

      . For a summary of the jurisprudence concerning the three categories of takings, see B.A.M. Development, L.L.C. v. Salt Lake County, 2004 UT App 34,¶¶ 36-44, 493 Utah Adv. Rep. 34, 87 P.3d 710 (Orme, J., dissenting).

      . Although it admittedly strains logic to suggest that extracting gravel is truly the only beneficial use for such a large piece of land — which is partially within the town limits of Stockton, close to the ever-burgeoning Wasatch Front, and zoned for several permitted uses including single family dwellings, duplexes, and wind and solar power generation' — skepticism based on life experience is no basis for sustaining the grant of summary judgment. By Diamond's counsel's own admission, Diamond bears an onerous burden in showing that there is no other use for the property. This opinion should not be taken as an indication that Diamond will be victorious — only that it is entitled to fight its uphill battle.

      . "A property owner is of course not required to resort to piecemeal litigation or otherwise unfair procedures in order to obtain this determination.” MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 350 n. 7, 106 S.Ct. 2561, 2567 n. 7, 91 L.Ed.2d 285 (1986).

      . The County argues on appeal that the Commission recommended that Diamond provide an EIS and Diamond did not do so. The County also suggests that "[t]he EIS ... was proposed simply as a means of identifying whether there would be site-specific adverse impacts from the conditional use and what those impacts may be.” The County does not explicitly argue that Diamond's failure to provide an EIS was a basis for the County's denial of the permit; and in denying the application, the County Commission did not cite the lack of an EIS as a basis for the denial. Given the procedural posture of this case, we will draw all reasonable inferences in favor of Diamond, see Callioux v. Progressive Ins. Co., 745 P.2d 838, 840 (Utah Ct.App.1987), and accordingly must presume that the lack of an EIS did not render the application incomplete. If the County Commission had concluded otherwise, it would have been easy enough for it to have said so.

      . The County concedes that producing an EIS was simply one way for Diamond to meet the concerns of the County Commission, but asserts Diamond “failed to offer any other information in lieu of the EIS to address the potential impacts of its conditional use and to help the County formulate conditions to mitigate those impacts.”

      .The accuracy of the County Commission’s suggestion ⅛⅜ there are other possible uses for the property will have to be determined in the trial court in the event that Diamond chooses to pursue its claim. In ruling on the motion for summary judgment in this matter, the trial court stated that "even though it is unnecessary to the opinion, ... this Court sees no deprivation of reasonable or economically beneficial use [and • i]t is axiomatic, that Diamond cannot argue that the denial of a conditional use of the Property somehow deprives it'of all reasonable or economically beneficial use.” (emphasis in original). Although we share the skepticism of the commissioners and the trial court, see supra note 4, Diamond has alleged that the property was not suitable for other economically viable uses, and backed that contention up with an expert's affidavit, and it was therefore inappropriate for the court to abort Diamond's chance for relief at this early stage of the proceedings.


source: Caselaw Access Project

author: DAVIS, Judge:

license: Public Domain

text:
    2004 UT App 137
    BONNEVILLE ASPHALT and/or Liberty Mutual Insurance Company, Petitioners, v. LABOR COMMISSION and Dakota Cameron (dependent child of Cody Mair), Respondents.
    No. 20030463-CA.
    Court of Appeals of Utah.
    April 29, 2004.

      Kristy L. Bertelsen and Michael E. Dyer, Blackburn & Stoll LC, Salt Lake City, for Petitioners.
    Alan Hennebold, Salt Lake City, and Bruce J. Wilson, Colorado Springs, Colorado, for Respondents.
    Before BENCH, Associate P. J., DAVIS and ORME, JJ.
   OPINION

DAVIS, Judge:

¶ 1 Bonneville Asphalt and Liberty Mutual Insurance Company (collectively Petitioners) seek review of an order of the Utah Labor Commission (Labor Commission), which requires Petitioners to pay death benefits to the surviving dependent of a former employee of Bonneville Asphalt. We affirm the Labor Commission’s order.

BACKGROUND

¶ 2 While in the course and scope of his employment, Cody Mair was killed on September 28, 1998, leaving behind a sole dependent, his two-year-old son Dakota Cameron. Nearly three years after Mair’s death, Dakota’s mother, who was never married to Mair, filed a claim for death benefits under the Workers’ Compensation Act (the Act) on behalf of Dakota. She subsequently sought summary disposition of the claim with the Labor Commission. Because the claim was not filed within one year of Mair’s death, Petitioners argued that the claim was barred by the Act’s statute of limitation on death benefit claims (the statute of limitation). See Utah Code Ann. § 34A-2-417(3) (1997). The administrative law judge (ALJ) ruled that Dakota’s claim was not barred by the statute of limitation because Utah’s general tolling statute (the tolling statute), see Utah Code Ann. § 78-12-36 (1996), tolled Dakota’s claim while he was a minor. The ALJ subsequently ordered Petitioners to pay death benefits to Dakota.

¶ 3, Petitioners sought review of the order with the Labor Commission. The Labor Commission denied Petitioners’ motion for review, concluded that the tolling statute applied to Dakota’s death benefits claim, and ordered Petitioners to pay Dakota’s death benefits claim. Petitioners now seek review of the Labor Commission’s order.

ISSUES AND STANDARD OF REVIEW

¶4 We examine two issues: first, whether the tolling statute applies to death benefits claims filed under the Act; 'and second, whether the Labor Commission erred when it ruled that the “without a legal guardian” provision in the tolling statute applies only to mentally incompetent individuals. Utah Code Ann. § 78-12-36 (1996). Both issues present matters of statutory interpretation. “[M]atters of statutory construction are questions of law that are reviewed for correctness.” Esquivel v. Labor Comm’n, 2000 UT 66,¶ 13, 7 P.3d 777 (quotations and citations omitted). “[A]bsent a grant of discretion, an agency’s interpretation or application of statutory terms should be reviewed under the eorrection-of-error standard.” Id. at ¶ 14. The Act does not grant discretion to the Labor Commission on matters of statutory interpretation and, therefore, we review both issues under a correction-of-error standard. See id. at ¶ 18.

ANALYSIS

I. The Tolling Statute’s Application to Death Benefits Claims Under the Act

¶ 5 The Utah Legislature drafted the tolling statute with a “general intent to protect the causes of minors.” Cole v. Jordan Sch. Dist., 899 P.2d 776, 778 (Utah 1995). Furthermore, it “was obviously intended to prevent a person from losing the opportunity to bring a claim where circumstances pre-> eluded either proper notice or a realistic effort to pursue the claim.” Johnson v. State, 945 P.2d 673, 674 (Utah 1997). The tolling statute reads, in its entirety,

If a person entitled to bring an action, other than for the recovery of real property, is at the time "the cause /of action accrued, either under the age of majority or mentally incompetent and without a legal guardian, the time of the disability is not a part of the time limited for the commencement of the action.

Utah Code Ann. § 78-12-36 (1996). “[A] minor claimant is justly entitled to the protection afforded by [the tolling statute] in all cases-” Scott v. School Bd., 568 P.2d 746, 748 (Utah 1977). “The sweeping scope of this language requires that all statutes of limitation be tolled during minority unless the legislature enacts a specific exemption.” Blum v. Stone, 752 P.2d 898, 900 (Utah 1988) (emphasis added). Petitioners argue that the tolling statute does not apply to claims filed under the Act because the Act’s requirement that claims by minors must be filed by a guardian or next friend within one year of a qualifying event operates as a specific exemption from the tolling statute. See Utah Code Ann. §§ 34A-2-414(3), -417(3) (1997). We disagree.

¶ 6 The Act’s one-year statute of limitation provides that “[a] claim for death benefits is barred unless an application for hearing is filed within one year of the date of death of the employee.” Utah Code Ann. § 34A-2-417(3) (1997). The Act requires that a notice of claim for death benefits on behalf of minors “shall be made by the guardian or next friend of the minor dependents.” Id. § 34A-2-414(3)(b) (1997). In order to except a statute of limitation from the operation of the tolling statute, more specificity is required.

¶ 7 In Cole, the Utah Supreme Court decided whether the provisions of the tolling statute applied to the statute of limitation and notice of claim requirements of the Utah Governmental Immunity Act. See 899 P.2d at 777. The Utah Governmental Immunity Act required a notice of claim, stemming from an accident, to be filed within one year of the accident. See id. Additionally, the Utah Governmental Immunity Act allowed plaintiffs to file for an extension of time for service of such notice. See id. The defendant in Cole sought to dismiss the plaintiffs claim because the plaintiff had not filed his notice of claim within one year of the accident and had not requested an extension of time for filing his notice of claim. See id. The plaintiff argued that the provisions of the tolling statute applied to his claim due to his minority status and, therefore, he had until one year after his eighteenth birthday to file his notice of claim. See id. The defendant argued that the provision allowing a minor claimant to apply for an extension of time to file his notice of claim served specifically to except the application of the tolling statute. See id. at 778. The Utah Supreme Court rejected the defendant’s argument, stating that the extension of time provision “does not address the applicability of the general tolling provision to the [Utah Governmental Immunity] Act’s notice of claim requirements. Nor does the alternative provided for by the amended section preclude the [tolling statute] from applying as well.” Id.

¶ 8 Like the statute of limitation and notice of claim requirements in Cole, the statute of limitation and notice of claim requirements under the Act do not specifically except the application of the tolling statute from claims for death benefits under the Act. The Utah Legislature has demonstrated that if it seeks specifically to exempt a statute from the tolling statute, it will do so with clear, explicit language. See, e.g., Utah Code Ann. § 78-14-4(2) (2002) (exempting malpractice actions against health care providers from the tolling statute by stating that “this section shall apply to all persons, regardless of minority or other legal disability under [sjection 78-12-86 ” (emphasis added)). The Utah Legislature has not added any similar language to exempt the Act’s statute of limitation from the tolling statute.

¶ 9 Our interpretation also comports with the policy of liberally interpreting the Act. “The purpose of the Act is to provide relief from industrial accidents. To that end, we construe the Act liberally and in favor of coverage if the statutes reasonably permit.” Vigos v. Mountainland Builders, Inc., 2000 UT 2,¶ 24, 993 P.2d 207 (citation omitted). Our interpretation “protects] the minor’s legitimate interests and avoid[s] denial of due process and equal protection.” Blum, 752 P.2d at 900; see also Cole, 899 P.2d at 777; Scott, 568 P.2d at 748.

¶ 10 Petitioners are also concerned that by applying the tolling statute in this case, we would create a situation where a party might have long-dormant, yet viable, claims lying against it. However, nothing prevents such a party wishing to dispose of possible claims from petitioning the court to appoint a legal guardian for a minor. Under section 78-33-4,

Any person interested as or through an executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic or insolvent, may have a declaration of rights or legal relations in respect thereto:
(1) to ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or,
(2) to direct the executors, administrators or trustees to do or abstain from doing any particular act in their fiduciary capacity; or,
(3) to determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

Utah Code Ann. § 78-33-4 (2002). Thereafter, the party could commence a declaratory judgment action against the guardian so that the minor’s rights could be promptly determined.

¶ 11 Accordingly, we conclude that the tolling statute applies to claims for death benefits filed under the Act.

II. Interpretation of the Tolling Statute

¶ 12 Under Utah Code Annotated section 34A-2-417(3) (1997), claims for death benefits under the Act must be filed within one year of the death of an employee. The tolling statute provides that

[i]f a person entitled to bring an action, other than for the recovery of real property, is at the time the cause of action accrued, either under the age of majority or mentally incompetent and without a legal guardian, the time of the disability is not a part of the time limited for the commencement of the action.

Utah Code Ann. § 78-12-36 (1996) (emphasis added). Petitioners argue that the tolling statute applies to the statute of limitation only if a minor is without a legal guardian. Respondents contend that the “without a legal guardian” provision of the tolling statute applies only to mentally incompetent individuals. Id.

¶ 13 Petitioners rely upon a Utah Supreme Court decision in Jensen v. IHC Hosps., Inc., 944 P.2d 327 (Utah 1997). In Jensen, adult plaintiffs argued, inter alia, that even if a statute of limitations barred plaintiffs’ wrongful death claims against the defendant, that the general tolling statute prevented the statute of limitations from running against wrongful death claims of the victim’s children. See id. at 335. The supreme court ruled that “the children’s situation does not fit within the tolling statute’s terms,” and although unrelated to its ruling, interpreted the “without a legal guardian” provision to apply to both minors and mentally incompetent individuals. Id. (quotations and citation omitted).

¶ 14 Respondents rely upon Sulzen v. Williams, 1999 UT App 76, 977 P.2d 497, a decision from this court that also interpreted the tolling statute. In Sulzen, plaintiffs, acting as legal guardians on behalf of a minor, argued that the statute of limitations had not run on the minor’s claims that defendants had negligently caused the death of his mother because the phrase “without a legal guardian” applied only to mentally incompetent individuals under the tolling statute. Id. at ¶ 17 (quotations and citation omitted). The defendants in Sulzen, relying upon the supreme court’s decision in Jensen, argued that the phrase “without a legal guardian” applied to both minors and mentally incompetent individuals and, therefore, the plaintiffs’ claims were barred by the statute of limitations. Id. at ¶ 18 (quotations and citation omitted).

¶ 15 After explaining that the issues in Sulzen were different from the issues raised in Jensen, the court of appeals noted that the tolling statute, as written, was ambiguous and supported the contentions of both parties. See id. at ¶¶ 18-19 & n. 5. Upon an examination of the “legislative history [of the tolling statute] and relevant policy considerations,” id. at ¶ 19 (quotations and citation omitted), the court of appeals determined that the phrase “without a legal guardian” applied only to mentally incompetent individuals. Id. at ¶ 22 (quotations and citation omitted).

¶ 16 The issues in this case, like those in Sulzen, are distinct from the issues involved in Jensen, and we, therefore, follow the Sulzen court’s interpretation of the tolling statute. In this case, we examine whether the tolling statute applies to the Act’s statute of limitation on death benefits claims. See Utah Code Ann. § 34A-2-417(3) (1997). Although we recognize and observe the supreme court’s construction, in dicta, of the tolling statute in Jensen, horizontal stare de-cisis “requires that a court of appeals follow its own prior decisions. This doctrine applies with equal force to courts comprised of multiple panels, requiring each panel to observe the prior decisions of another.” State v. Menzies, 889 P.2d 393, 399 n. 3 (Utah 1994); see also State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993) (“If[horizontal] stare decisis had no application to a multi-panel court such as the court of appeals, it would sanction a judicial system under which the outcome of an appeal presenting a particular legal question would be dependent more on the composition of the panel hearing the case than on whether the issue has been previously addressed and decided by that court.”).

¶ 17 Therefore, we conclude that the “without a legal guardian” provision in section 78-12-36, in the context of filing a claim for death benefits under the Act, applies only to mentally incompetent individuals. Utah Code Ann. § 78-12-36 (1996). Accordingly, the Act was tolled with respect to Dakota, regardless of whether his mother would properly be viewed as his legal guardian, as that test is used in section 78-12-36.

CONCLUSION

¶ 18 We conclude that the tolling statute applies to claims filed under the Act, and we further conclude that the “without a legal guardian” provision in the tolling statute applies only to mentally incompetent individuals. Utah Code Ann. § 78-12-36 (1996). Therefore, we affirm the Labor Commission’s order that Petitioners pay death benefits to Dakota Cameron.

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

      . In cases involving the Act, we cite the substantive law in effect at the time of the injury or death. See Marshall v. Industrial Comm’n, 704 P.2d 581, 582 (Utah 1985).

      . In Scott v. School Bd., 568 P.2d 746 (Utah 1977), the Utah Supreme Court cited a previous version of the tolling statute, which is substantially similar to the version we consider today. The 1977 version of the tolling statute read, in relevant part:
      If a person entitled to bring an action, other than for the recovery of real property, is at the time the cause of action accrued, either:
      (1)Under the age of majority; or,
      (2) Mentally incompetent and without a legal guardian; or,
      (3) Imprisoned ...;
      [t]he time of such disability is not a part of the time limited for the commencement of the action.
      Utah Code Ann. § 78-12-36 (1977); see also Sulzen v. Williams, 1999 UT App 76,¶ 20, 977 P.2d 497 (analyzing Utah Code Ann. § 78-12-36 (1977)).

      . To aid in interpretation, the supreme court inserted bracketed numbers to illustrate that the "without a legal guardian" clause applied to both minors and mentally incompetent individuals. Utah Code Ann. § 78-12-36 (1996). The supreme court’s interpretation, undisputably in dicta, reads:
      "If a person entitled to bring an action ... is at the time the cause of action accrued, [i] either under the age of minority or mentally incompetent and [ii] without a legal guardian, the time of the disability is not a part of the time limited for the commencement of the action.”

        Jensen v. IHC Hosps., Inc., 944 P.2d 327, 335 (Utah 1997) (alterations in original) (quoting Utah Code Ann. § 78-12-36 (1996)).

      . The court of appeals similarly inserted bracketed numbers to illustrate how the tolling statute applied in Sulzen:

      "If a person entitled to bring an action, other than for the recovery of real property, is at the time the cause of action accrued, either [1] under the age of majority or [2] mentally incompetent and without a legal guardian, the time of the disability is not a part of the time limited for the commencement of the action.”

        Sulzen, 1999 UT App 76 at ¶ 22, 977 P.2d 497 (alterations in original) (quoting Utah Code Ann. § 78-12-36 (1996)).


author: JACKSON, Judge:

text:
    2004 UT App 150
    Sheri Colleen PETT, Plaintiff and Appellant, v. FLEET MORTGAGE CORPORATION, Washington Mutual Bank, Defendants and Appellees.
    No. 20030392-CA.
    Court of Appeals of Utah.
    May 6, 2004.

      Filia H. Uipi, Salt Lake City, for Appellant.
    Marlon L. Bates and William G. Wilson, Scalley & Reading, Salt Lake City, for Ap-pellees.
    Before BILLINGS, P.J., GREENWOOD and JACKSON, JJ.
   OPINION

JACKSON, Judge:

¶ 1 Sheri Colleen Pett (Pett) appeals the decision below granting Washington Mutual Bank’s (Washington Mutual) motion for dismissal under rule 12(b)(6) of the Utah Rules of Civil Procedure. We affirm.

BACKGROUND

¶ 2 In November 2001, Pett attempted to pay off a loan that had previously encumbered a piece of property that she owned in Box Elder County. The loan was secured by a trust deed on the property, with Washington Mutual designated as the beneficiary of the trust deed.

¶ 3 After delivering a check for the balance of the loan to Washington Mutual’s counsel, Pett requested that Washington Mutual provide her with a deed of reconveyance. Washington Mutual refused, instead choosing to send Pett. a packet of documents that, among other things: (i) purported to release Washington Mutual’s interest in the property; (ii) requested that the trustee file a deed of reconveyance to Pett; and (iii) instructed Pett on how to appoint a substitute trustee should she be unable to locate the original trustee. On August 19, 2002, the trustee reconveyéd the property to Pett.

¶ 4 On September 13, 2002, Pett filed a complaint against Washington Mutual. Pett raised two separate causes of action. Pett first argued that, under the terms of Utah Code Annotated section 57-1-38 (2000), Washington Mutual was required to reeonvey the property to her within ninety days of her payment. Pett next asserted that Washington Mutual’s refusal to reeonvey the property within ninety days constituted a slander of title and that an order quieting title was necessary.

¶ 5 On November 8, 2002, Washington Mutual filed a motion to dismiss under rule 12(b)(6) of the Utah Rules of Civil Procedure. Pett opposed this motion to dismiss, and, in turn, filed her own motion for summary judgment. Washington Mutual responded by filing a motion opposing Pett’s motion for summary judgment and by filing a separate motion asking the court to disqualify Pett’s attorney, Charles A. Schultz (Schultz). According to Washington Mutual, Schultz had entered into an agreement with Washington Mutual’s prior attorney in which Schultz had agreed that .Washington Mutual’s release procedures would be acceptable.

¶ 6 On March 3, 2003, the district court entered an order addressing each of the outstanding motions. After first denying Pett’s motion for summary judgment, the court then granted Washington Mutual’s motion to. disqualify Schultz. Finally, the court granted Washington Mutual’s motion to dismiss. The court’s dismissal was predicated on three analytically distinct conclusions: first, the court determined that section 57-1-38 does not require a beneficiary to file a deed of reconveyance within ninety days; second, the court determined that Washington Mutual had successfully “released” the property to Pett and had therefore satisfied its obligations under Utah Code Annotated section 57-1-38; and third, the court determined that Washington Mutual was protected under the statutory defense provided'in section 57-1-38(4). Pett appeals.

ISSUE AND STANDARD OF REVIEW

¶ 7 Pett argues that the trial court erred in granting Washington Mutual’s motion to dismiss. “When reviewing a dismissal based on rule 12, an appellate court must accept the material allegations of the complaint as true, and the trial court’s ruling should be affirmed only if it clearly appears that [the plaintiff] can prove no set of facts in support of his [or her] claim.” Colman v. Utah State Land Bd., 795 P.2d 622, 624 (Utah 1990).

ANALYSIS

I. The Propriety of a Rule 12(b)(6) Dismissal

¶ 8 Pett argues that the trial court erred in granting Washington Mutual’s motion to dismiss for failure to state a claim. According to Pett, the trial court’s dismissal was based on its acceptance of various factual allegations made by Washington Mutual; as such, Pett argues that a dismissal under rule 12(b)(6) was improper. We disagree.

¶ 9 Pett’s complaint was expressly predicated on her repeated assertion that Washington Mutual was statutorily required to reconvey the property to her upon receipt of her payment. In her complaint, Pett thus argued that “[t]he defendants are required by the provisions of [section] § 57-1-38(3) to file a reconveyance of trust deed to Ms. Pett within [ninety] days of the date she paid, in full, the stipulated settlement amount to ... Washington [Mutual].” (Emphasis added.) Pett’s assertion that a full reconveyance was required is repeated throughout the rest of her complaint. Pett did not identify an alternate statutory ground under which Washington Mutual .could have been held liable.

¶ 10 In granting Washington Mutual’s motion to dismiss, the trial court first stated that, “[a]fter a diligent search, the court is unable to find the word ‘reconvey’ in that section of the Code. The Code says only that the holder of a security interest must ‘release the security interest on a secured loan within [ninety] days after receipt of the final payment.’ ” (Citation omitted.) We have reviewed the applicable law, and have determined that the trial court’s legal determination was correct. As noted by the trial court, section 57-1-38(3) only states that liability is incurred when a beneficiary fails to “release the security interest on a secured loan within [ninety] days after receipt of the final payment of the loan.” (Emphasis added.) There is no mention anywhere in that provision of a requirement that the beneficiary effectuate an actual reconveyance. Instead, the statutes clearly indicate that the duty to reconvey is a separate duty that affirmatively lies with the trustee, not with the beneficiary. See Utah Code Ann. § 57-1-33.1(1)(a) (2000) (“When an obligation secured by a trust deed has been satisfied, the trustee shall, upon written request by the beneficiary, reconvey the trust property.”).

¶ 11 Washington Mutual has at all times asserted that its position with respect to this trust deed was that of beneficiary; Pett has not at any point challenged that assertion. As such, Pett’s claim that Washington Mutual was statutorily required to reconvey the property to her is incorrect.

¶ 12 Dismissal under rule 12(b)(6) is appropriate where there is a “failure to state a claim upon which relief can be granted.” “A rule 12(b)(6) motion to dismiss admits the facts alleged in the complaint but challenges the plaintiffs right to relief based on those facts.” St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 196 (Utah 1991). Here, regardless of what facts the trial court may have relied upon, the fatal flaw in Pett’s complaint was that her legal theory had no statutory support. In other words, because her complaint was entirely and exclusively dependent on a misunderstanding of Washington Mutual’s legal obligations toward her, the trial court simply had no recourse but to conclude that she had failed to plead a cognizable and actionable claim. As such, we affirm the trial court’s dismissal of her complaint.

II. The Conversion Requirement of Rule 12(b)

¶ 13 As noted above, the trial court’s order of dismissal was also predicated on its conclusions (i) that, as a matter of law, Washington Mutual had released its security interest as required by section 57-1-38(3) and (ii) that Washington Mutual had satisfied the statutory elements for the liability defense provided for in section 57-1-38(4). In their briefs, both Pett and Washington Mutual have argued that these two rulings necessarily involved the trial court’s consideration of “matters outside the pleadings.” As such, the parties argue that a conversion occurred and that we should therefore treat the rule 12(b)(6) dismissal as a grant of summary judgment under rule 56 of the Utah Rules of Civil Procedure. See generally Utah R. Civ. P. 12(b). The parties differ, however, in their conclusions regarding the effect of this conversion. Pett argues that, insofar as she was not granted “reasonable opportunity to present all material made pertinent to such a motion by [rjule 56,” the conversion was prejudicial and that the dismissal should therefore be overturned. Washington Mutual, however, argues Pett did receive proper opportunity for response and that we should accordingly treat the trial court’s dismissal as a proper and valid dismissal under rule 56.

¶ 14 As discussed above, we do not think that the trial court’s rulings with respect to either Washington Mutual’s alleged “release” under section 57-1-38(3) or Washington Mutual’s qualification for the affirmative defense provided for in section 57-1-38(4) were necessary for dismissal. Because the legal foundation for Pett’s complaint was fatally flawed, dismissal was legally required, regardless of whether sections 57-1-38(3) or 57-1-38(4) were satisfied. Thus, those portions of the trial court’s opinion dealing with those defenses were legally superfluous and should be recognized as dicta. As such, we hold that any error that occurred because of the trial court’s consideration of materials outside the pleadings was harmless.

¶ 15 Accordingly, we affirm.

¶ 16 WE CONCUR: JUDITH M. BILLINGS, Presiding Judge and PAMELA T. GREENWOOD, Judge.

      . Because of our conclusion that dismissal was appropriate, we need not reach the question of whether the trial court erred in disqualifying Schultz from further participation in the litigation. Further, because Pett has not affirmatively challenged the trial court’s denial of her own motion for summary judgment, we need not consider her argument that the trial court erred in denying her motion to strike Washington Mutual's response to her motion for summary judgment.

      . We note that though Pett made passing references to Washington Mutual's failure to release its interest in the property at various points in the pleadings and motions, Pett never affirmatively moved to amend her complaint to include such an alternate theory. Pett's few, scattered references to the release requirement of Utah Code Annotated section 57-1-38(3) (2000) in the pleadings and motions were always accompanied by language insisting that relief was ultimately appropriate because of Washington Mutual's failure to reconvey the property.

      . Even were we to conclude, however, that the trial court's consideration of materials outside the pleadings was relevant to the final disposition of this case, we would still conclude that dismissal was appropriate.
      First, contraiy to Pelt’s assertions, conversion in this case was not barred the requirement of rule 12(b) of the Utah Rules of Civil Procedure that a "reasonable opportunity” to respond be provided to the non-moving party. As noted by our supreme court in DOIT, Inc. v. Touche, Ross & Co., a sua sponte conversion of a rule 12(b)(6) motion to dismiss into a motion for summary judgment under rule 56 of the Utah Rules of Civil Procedure is appropriate if "all parties submitted extraneous materials and neither plaintiffs nor defendants are prejudiced.” 926 P.2d 835, 838 n. 3 (Utah 1996). Here, Pett's own pleadings and motions were supported by multiple attachments providing extraneous materials to the court. More importantly, Pett filed her own rule 56 motion for summary judgment prior to the trial court's consideration of Washington Mutual's rule 12 motion to dismiss. As such, Pett can hardly argue that she was unaware that the trial court might consider outside materials in its decision-making process, nor can she argue that she was prejudiced thereby.
      Second, summary judgment in this case would ultimately have been appropriate for the same reason that a rule 12 dismissal was appropriate: regardless of what facts were or were not alleged, Pett’s claim that Washington Mutual was required to reconvey the property to her simply fails as a matter of law. Thus, even were we to hold that the trial court’s rule 12 dismissal should be converted to a rule 56 summary judgment ruling, we would still affirm the dismissal.


author: BILLINGS, Presiding Judge:

text:
    2004 UT App 143
    Terry GILLMAN, on behalf of himself and all others similarly situated, Plaintiff and Appellant, v. SPRINT COMMUNICATIONS COMPANY, L.P.; and John Does 1-10, whose true names are unknown, Defendants and Appellees.
    No. 20030349-CA.
    Court of Appeals of Utah.
    May 6, 2004.
    Denver C. Snuffer Jr., Nelson, Snuffer, Dahle & Poulsen, Sandy, and Jesse L. Rid-die, Riddle & Associates, PC, Draper, for Appellant.
    Robert S. Clark, Paul C. Drecksel, and Justin P. Matkin, Parr, Waddoups, Brown, Gee & Loveless, Salt Lake City, for Appel-lees.
    Before Judges BILLINGS, DAVIS, and ORME.

      . If the plain meaning of the language of the Act does not reflect the Legislature's actual intent, then it is the Legislature that must change the language of the Act. However, such a change is likely unnecessary because there now exists federal legislation in this area that likely preempts state laws such as the Act. See 15 U.S.C. §§ 7701 to -7713 (2004).

   OPINION

BILLINGS, Presiding Judge:

¶ 1 Terry Gillman appeals the trial court’s order granting summary judgment to Sprint Communications Company, L.P. (Sprint) and dismissing Gillman’s claims brought under the Unsolicited Commercial and Sexually Explicit Email Act (the Act). See Utah Code Ann. §§ 13-36-101 to -105 (2002). We affirm.

BACKGROUND

¶2 On April 14, 2002, Gillman agreed to receive promotional email from Audio Galaxy, an online music service, when he registered on Audio Galaxy’s website. Traffix, Inc. (Traffix), and its subsidiary GroupLotto, subsequently obtained Gillman’s email address from Audio Galaxy. The trial court concluded that Gillman had conceded that at this time he had a business relationship not only with Audio Galaxy, but also with Traffix and GroupLotto. On or about May 14, 2002, GroupLotto began sending promotional email to the addresses Traffix had received from Audio Galaxy. The promotional email advertised Sprint’s long-distance telephone service.

¶ 3 On May 14, 2002, Gillman requested that GroupLotto remove his email address from its distribution list. GroupLotto removed Gillman’s email address from its list on May 15, 2002. However, GroupLotto did not remove Gillman’s email address from those email promotions already queued to’ be sent. As a result, on May 16, 2002, Gillman received an email (the Email) from Grou-pLotto advertising Sprint’s long-distance service.

¶ 4 On May 28, 2002, Gillman filed a class action lawsuit against Sprint, alleging that the Email was an unsolicited commercial email that violated the Act. On November 1, 2002, Sprint moved for summary judgment on numerous grounds. On February 28, 2003, the trial court granted Sprint’s motion for summary judgment on the following ground: the Email was not “unsolicited” as the term is defined in the Act, and thus not regulated by the Act, because Gillman had a “preexisting relationship” with its sender, GroupLotto. Gillman appeals.

ISSUES AND STANDARDS OF REVIEW

' ¶ 5 Gillman contends that the trial court erred by granting summary judgment to Sprint when it interpreted the Act as failing to regulate the Email as an “unsolicited” email. A motion for summary judgment should be granted only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). When reviewing a grant of summary judgment, “[w]e view all facts and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party” and review the trial court’s conclusions of law for correctness. Lovendahl v. Jordan Sch. Dist., 2002 UT 130,¶ 13, 63 P.3d 705.

ANALYSIS

¶ 6 The Act regulates commercial email only if it is “unsolicited.” Utah Code Ann. § 13-36-103 (2002). Gillman argues that the trial court erred by finding that because Gillman had a “preexisting” relationship with GroupLotto, the Email was not an “unsolicited” email under the Act. Sprint argues that the plain language of the statute supports the interpretation adopted by the trial court.

¶ 7 “When faced with a question of statutory construction, we look first to the plain language of the statute.” Carlie v. Morgan, 922 P.2d 1, 3 (Utah 1996) (quotations and citations omitted). “We assume that each term in the statute was used advisedly; thus the statutory words are read literally, unless such a reading is unreasonably confused or inoperable.” Id. (quotations and citation omitted). “Only when we find ambiguity in the statute’s plain language need we seek guidance from the legislative history and relevant policy considerations.” Id. at 4 (quotations and citation omitted). It is the plain meaning of a statute that provides notice of its applications, and thus, unless the plain meaning is ambiguous or fails to make sense of the statute as a whole, we do not look beyond the text. See Beehive Bail Bonds v. Fifth Dist. Court, 933 P.2d 1011, 1013 (Utah Ct.App.1997). The trial court applied these principles to conclude that the Email was not “unsolicited” as the term is defined by the Act. We agree.

¶ 8 The Act regulates “unsolicited commercial email.” Utah Code Ann. § 13-36-103. The Act defines the term “unsolicited” to mean “without the recipient’s express permission,” but expounds upon the definition as follows: “A commercial email is not ‘unsolicited’ if the sender has a preexisting business or personal relationship with the recipient.” Id. § 13-36-102(8) (2002). Gillman was the recipient of the Email and GroupLotto was its sender. Thus, the dispositive issue is whether Gillman had a “preexisting business relationship” with GroupLotto. If there was a preexisting business relationship, then the Email was not unsolicited, and thus, not regulated by the Act.

¶ 9 Gillman argues that he had no “preexisting” relationship with GroupLotto on May 16, 2002, when he received the Email, because he had terminated his relationship with GroupLotto on May 14, 2002. However, Gillman’s interpretation of the Act ignores the prefix “pre” in the word “preexisting.” “We assume that each term in the statute was used advisedly; thus the statutory words are read literally, unless such a reading is unreasonably confused or inoperable.” Carlie, 922 P.2d at 4 (quotations and citation omitted).

¶ 10 The literal meaning of the term “preexisting” does not support Gillman’s interpretation. While Gillman’s termination of his relationship with GroupLotto on May 14, 2002, demonstrates that the two entities had no existing relationship on May 16, 2002, it does not demonstrate that they had no 'preexisting relationship. Webster’s International Dictionary defines “preexist” as “to exist earlier.” Webster’s Third New International Dictionary (unabridged) 1787 (3d ed.1986). Thus, whether one has a preexisting relationship depends essentially upon whether the relationship existed earlier, not whether the relationship continues to exist. We cannot ignore the Legislature’s choice to include the prefix “pre.” We are bound by the literal meaning of “preexisting” unless it leads to an interpretation of the Act that is “unreasonably confused and inoperable.”

¶ 11 Gillman argues that reading the term “preexisting” according to its plain meaning entails that once one establishes a business or personal relationship with a sender, one cannot terminate that relationship and bring any subsequent email from that sender within the scope of the Act. Gillman then argues that such an interpretation not only renders the Act inoperable, but also makes the opt-out procedure specified in the Act superfluous. See Utah Code Ann. § 13-36-103 (2002). We disagree.

¶ 12 The Act regulates all commercial email sent without “the recipient’s express permission” where the sender has no “preexisting business or personal relationship with the recipient.” Id. § 13-36-102(8). All such commercial email is termed “unsolicited” under the Act. Id. Thus, the Act, and specifically its opt-out requirement, is directed only to those who send commercial email without the recipient’s consent and without first having established a business or personal relationship with the recipient. This distinction is reasonable and does not render the opt-out procedure superfluous or the Act inoperable. Therefore, the plain meaning of the language chosen by the Legislature governs.

CONCLUSION

¶ 13 Because Gillman had a preexisting relationship with GroupLotto, the sender of the Email, the Email was not unsolicited, and thus was not regulated by the Act. Because the Email was not regulated by the Act, neither GroupLotto, which sent the Email, nor Sprint, which caused the Email to be sent, is hable under the Act. Therefore, the trial court did not err by dismissing Gill-man’s claim against Sprint. Accordingly, we affirm.

¶ 14 WE CONCUR: JAMES Z. DAVIS and GREGORY K. ORME, Judges.

      . The Act does not regulate commercial email where its "sender has a preexisting business or personal relationship with the recipient.” Utah Code Ann. § 13—36—102(8)(b) (2002). Although Gillman had registered on Audio Galaxy's website, the trial court considered Gillman to have a "business relationship” with GroupLotto because (1) Sprint presented evidence that Gillman opted to receive GroupLotto email when he used Audio Galaxy’s website, and Gillman never disputed this fact, thereby waiving the issue, see Utah R. Civ. P. 56(c), and (2) Gillman's arguments in the trial court presuppose that Gillman had a business relationship with GroupLotto which Gill-man then terminated. We agree with the trial court. Thus, we need not, and do not, decide whether and under what conditions having a business relationship with one company enables that company to sell one's email address to a second company and thereby "transfer” its business relationship with the recipient to the second company.

      . While Gillman correctly points out that Sprint caused the Email to be sent, he acknowledges that the Email actually was sent by GroupLotto. The Act explicitly distinguishes those who "send" commercial email from those who "cause to be sent" commercial email, which permits Sprint to be liable for an email sent by GroupLotto if Sprint caused GroupLotto to send it. See Utah Code Ann. § 13-36-103(1) to (2) (2002). However, when the Act defines the term "unsolicited,” it refers to "the sender” as the one with whom the recipient must have a preexisting relationship. Id. § 13 — 36—102(8)(b). Use of the definite article "the” indicates that there is only one sender whose preexisting relationship is at issue — one who actually sends the email. Thus, GroupLotto is "the sender” of the Email.

      . Because we affirm the trial court's order on statutory grounds, we need not address Sprint’s constitutional arguments under the Commerce Clause, see U.S. Const. art. I, § 8, cl. 3, Free Speech Clause, see U.S. Const. amend. I, and Due Process Clause, see U.S. Const. amend. XIV. See State v. Wood, 648 P.2d 71, 82 (Utah 1982) ("It is a fundamental rule that we should avoid addressing a constitutional issue unless required to do so.”).


author: BENCH, Associate Presiding Judge:

text:
    2004 UT App 151
    STATE of Utah, Plaintiff and Appellee, v. Frank Paul REYOS, Defendant and Appellant.
    No. 20020715-CA.
    Court of Appeals of Utah.
    May 6, 2004.

      Margaret P. Lindsay and Patrick V. Lindsay, Aldrich, Nelson, Weight & Esplín, Provo, for appellant.
    Mark L. Shurtleff, Atty. Gen., and Karen A. Klucznik, Asst. Atty. Gen., Salt Lake City, for appellee.
    Before BENCH, Associate P.J., GREENWOOD, and ORME, JJ.
   MEMORANDUM DECISION

BENCH, Associate Presiding Judge:

¶ 1 Defendant Frank Reyos argues that his statements “get the gun and shoot” and “shoot to kill” do not elevate his crime to aggravated robbery. We disagree. -

¶ 2 Utah Code Annotated section 76-6-302 (2003) provides that “a person commits aggravated robbery if in the course of committing robbery, he a uses or threatens to use a dangerous weapon as defined in Section 76-1-601.” Section 76-1-601 defines a “dangerous weapon” as

(a) any item capable of causing death or serious bodily injury; or
(b) a facsimile or representation of the item; and:
(i) the actor’s use or apparent intended use of the item leads the victim to reasonably believe the item is likely to cause death or serious bodily injury; or
(ii) the actor represents to the victim verbally or in any other manner that he is in control of such an item.

Id. § 76-1-601(5) (2003).

¶ 3 In interpreting the aggravated robbery provision of the Utah Code, the Utah Supreme Court refuted an argument similar to Reyos’s that a verbal threat requires an accompanying gesture or show of ability to use a dangerous weapon. See State v. Hartmann, 783 P.2d 544 (Utah 1989). The court in Hartmann held that, to qualify for aggravated robbery, the “use or display of a weapon is not required; threat of such use is sufficient.” Id. at 547. The court explained that “the legislature’s concern with threats to use dangerous weapons during robberies is a legitimate one. Threats instill great fear in victims.” Id. Here, Reyos was seen by two employees running out of the store with a stolen VCR. The employees ran after Reyos, who was headed toward a car where his brother and their girlfriends were waiting. Reyos reached the car first and got into the backseat. Somebody then yelled, “Start the car, start the car.” To prevent Reyos’s escape, the employees grabbed the keys out of the ignition. As the employees walked back toward the store with the keys, Reyos and his brother got out of the car and confronted them. A crowd began to gather. Reyos’s brother attempted to grab one of the employees, but was restrained by a bystander and held against the car. Reyos grabbed and punched the other employee, but the employee punched Reyos back and pinned him against the car. Reyos then yelled, “Get the gun and shoot,” and “shoot to kill.” Immediately, the crowd scattered and the employees ran for protection. Based on these facts, we conclude that Reyos’s statements were a threat that reasonably “instilled great fear” in the crowd and the employees since they all immediately dispersed. Id. The crowd and employees reasonably believed that Reyos’s threat “to use a dangerous weapon,” Utah Code Ann. § 76-6-302, “capable of causing death or serious bodily injury,” id. § 76-1-601(5), was real. Otherwise, they would have simply ignored Reyos’s threat.

¶ 4 Notwithstanding, Reyos maintains that his statement still was no real threat to anyone because he was not in possession of a weapon, or even capable of gaining possession of a weapon at the time he made the statements. However, “because there is often little or no opportunity for ... victims to defend against threatened attacks, the threats to use a dangerous weapon are particularly terrifying whether or not the perpetrator actually possesses a weapon.” Hartmann, 783 P.2d at 547. Similarly, this court held that “threatening to use a dangerous weapon during the commission of a robbery, regardless of whether one actually possesses such a weapon, is sufficient for a charge of aggravated robbery.” State v. Adams, 830 P.2d 310, 313 (Utah Ct.App.1992). Additionally, a representation of a dangerous weapon may include “a statement conveying an impression for the purpose of influencing action.” State v. Candelario, 909 P.2d 277, 278 (Utah Ct.App.1995). Reyos’s statements to “get the gun and shoot” and “shoot to kill” clearly “conveyed an impression” that a gun would be used “for the purpose of influencing action.” Id. Hence, Reyos did not need to have actual possession of a gun at the time of his threat.

¶ 5 We therefore affirm.

¶ 6 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, Judges.

        . State v. Candelario, 909 P.2d 277 (Utah Ct.App.1995), called for the court's interpretation of "dangerous weapon,” Utah Code Ann. § 76-1-601 (2003), in the context of the “firearm enhancement” provision of Utah Code Annotated section 76-3-203(2). (2003). This court also held that a representation of a dangerous weapon may include both "a verbal or nonverbal statement" that the actor has a weapon. Candelario, 909 P.2d at 279.


author: GOLDEN, Justice.

text:
    2004 WY 67
    DOWNTOWN AUTO PARTS, INC.; and Marie K. Nelson, a/k/a/ Katie Nelson, Appellants (Defendants), v. Rachel N. TONER, Appellee (Plaintiff).
    No. 03-176.
    Supreme Court of Wyoming.
    June 15, 2004.

      Representing Appellants: Peter K. Michael, Cheyenne, Wyoming.
    Representing Appellee: Jay A. Gilbertz of Yonkee & Toner, LLP, Sheridan, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶ 1] The sole issue presented is whether the trial court properly relied on ordinary negligence principles to determine the existence of duty in this vehicle and pedestrian collision case. The employee driver, Marie K. Nelson (Nelson), for Appellant Downtown Auto Parts, Inc., (Downtown) struck and injured Rachel N. Toner (Toner) as she attempted to cross a street. Following a bench trial, the trial court applied comparative fault principles, determined that both parties were negligent, but Downtown’s greater fault entitled Toner to money damages. In this appeal, Downtown contends that the trial court erred as a matter of law in ruling that Nelson owed a duty to Toner under the “sudden appearance” rule of law.

[¶ 2] We hold that the trial court’s ruling that Nelson owed a duty to Toner which she had breached, causing damages, was not clearly erroneous. We affirm.

ISSUE

[¶ 3] Downtown presents this issue for our review:

1. Whether an automobile driver can be at fault for a collision with a pedestrian when the driver was complying with all traffic statutes and ordinances immediately before the collision and the pedestrian appeared suddenly from a hidden location behind an obstruction.

Toner contends that the issue properly before us is:

Was there sufficient evidence for the trial court to conclude that the defendant was negligent?

FACTS

[¶ 4] On the morning of September 28, 1998, Toner, a graduate student at the University of Wyoming, was given a ride to class by a friend. No curbside parking was available, and the friend double-parked his van in the westbound lane of Lewis Street, which is adjacent to the University. Toner had to walk in front of the friend’s van and across Lewis Street without using a crosswalk in order to reach her destination at the Geology Building. An oncoming vehicle stopped and gave Toner the right-of-way. The Downtown Auto Parts delivery vehicle driven by Nelson approached the van from the rear, drove around the double-parked van, accelerating as it passed, and struck Toner just as she stepped out into the street. Toner sustained serious damage to her left knee which required surgery and extensive treatment af-terwards. The parties did not dispute that Nelson was acting within the scope of her employment and, after a bench trial, the trial court issued a decision letter stating its general findings and apportioning sixty percent of fault to Downtown and forty percent of fault to Toner. Under Wyoming’s comparative fault laws, Downtown was responsible for sixty percent of the damages, and judgment was entered accordingly. This appeal followed.

DISCUSSION

Standard of Review

[¶ 5] Our standard of review when a trial is held before the bench, rather than a jury, is:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 538 (Wyo.1993). While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Id. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail weighing disputed evidence. Id. Findings of fact will not be set aside unless the findings are clearly erroneous. Id. A finding is clearly erroneous- when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. We review a district court’s conclusions of law de novo on appeal. Id.

Saulcy Land Co. v. Jones, 983 P.2d 1200, 1203 (Wyo.1999).

Duty to Pedestrian

[¶ 6] After carefully examining the evidence, the trial court as fact finder concluded that Nelson had breached a duty owed to pedestrians by failing to determine if pedestrians were present as she passed a parked van despite her knowledge that the Lewis Street area had a great deal of pedestrian traffic. The trial court also concluded that Toner negligently failed to look to her left before crossing the street. Because Nelson had the capability of causing great harm in her automobile and could have avoided the hazard with only minimal caution, the trial court found that Nelson’s fault was greater than Toner’s. In its decision letter, the trial court quoted the following passage from Feltner v. Bishop, 348 P.2d 548 (Wyo.1960):

We are fully aware of the soundness of the general rule that the operator of an automobile cannot assume that the road is clear and that under all circumstances and at all times an operator is bound to anticipate that persons may be met at any point in a public way, whether street, road or highway. We also feel this duty becomes more strict when the presence of persons upon streets or highways actually exists or becomes more probable. On the other hand, the limit of the operator’s duty when lawfully driving is to exercise a diligence commensurate with hazards disclosed under surrounding circumstances, and the lookout which operators of vehicles must maintain is that most effective in the light of all present conditions and those reasonably to be anticipated.
We also recognize that the existing circumstances surrounding, an accident bear largely upon the question of an automobile operator’s negligence....

Id. at 549-50 (citations omitted).

[¶ 7] Downtown contends that the trial court misapplied Feltner. It argues that Feltner stands for the “sudden appearance rule” which posits that a driver, as a matter of law, has no duty to anticipate a pedestrian’s sudden appearance from behind a parked automobile. See Feltner, at 550-51. In this case, Downtown contends that because the trial court found that Nelson had obeyed all traffic laws as she attempted to pass the van and because Toner appeared suddenly from a hidden location, Nelson owed no duty to Toner. Toner contends that this simple case requires application of ordinary negligence principles and apportionment of fault, both factual determinations.

[¶ 8] There are four elements to a negligence cause of action: (1) the defendant owed the plaintiff a duty to conform to a specified standard of care; (2) the defendant breached the' duty of care; (3) the defendant’s breach of the duty of care proximately caused injury to the plaintiff; and (4) the injury sustained by the plaintiff is compensa-ble by money damages. Valance v. VI-Doug, Inc., 2002 WY 113, ¶ 8, 50 P.3d 697, ¶ 8 (Wyo.2002). Whether a duty exists is a question of law for the court and may arise based upon common law, contract or statute. Id.; Natrona County v. Blake, 2003 WY 170, ¶ 6, 81 P.3d 948, ¶ 6 (Wyo.2003). However, when the question of duty depends upon the initial determination of certain basic facts, that initial determination is a question of fact for the fact-finder. Valance, ¶ 8. In vehicle and pedestrian collision cases, the common law duty on the basis of ordinary negligence principles states that a driver owes a duty to exercise the degree of 'care required of a reasonable person in light of all' the circumstances. Fegler v. Brodie, 574 P.2d 751, 755 (Wyo.1978).

[¶ 9] In Feltner, the driver struck a toddler who darted in front of her from diagonally parked vehicles. Feltner, 348 P.2d at 549. After trial to the court, judgment was in favor of the driver, and that decision was upheld on appeal. Id. at 553. Feltner noted that the “sudden appearance” of the child in front of the vehicle was a circumstance supported by evidence permitting the trier of fact to decide that the driver had not been negligent. In other words, the “sudden appearance” of the child was a circumstance to be considered under ordinary negligence principles by the trier of fact. Id. at 550. Our review of the trial court’s decision in this case indicates that the reason for Nelson’s failure to see Toner was the primary issue in the case. As a driver, Nelson owed a duty of reasonable care under the circumstances. Under the common law duty and our standard that all circumstances are to be considered, Nelson is not relieved of a duty to pedestrians because she has complied with traffic laws or because a pedestrian’s sudden appearance left her only an instant to avoid an accident. Nelson’s duty of reasonable care required the trier of fact to consider that Nelson did not violate traffic laws, Toner’s sudden appearance, as well as whether it was reasonable for Nelson to pass a double parked van at the speed she did when oncoming traffic had stopped in an area known to have a high volume of pedestrians. The trial- court’s finding that Nelson should have foreseen the presence of pedestrians in this particular situation is not clearly erroneous, and we find no error and affirm the judgment of the trial court.


text:
    2004 WY 66
    Telesforo Ray PADILLA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 03-102.
    Supreme Court of Wyoming.
    June 15, 2004.
    Representing Appellant: Telesforo Ray Padilla, pro se.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General.
    Before HILL, C. J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶ 1] Appellant Telesforo Ray Padilla appeals from a district court’s denial' of reconsideration of a motion for sentence reduction. We dismiss the appeal for lack of jurisdiction.

ISSUES

[¶ 2] Padilla presents this statement of the issues:

1. Whether the judge committed reversible error when he denied appellant’s sentence reduction by mistake in thinking-case was dismissed.
2. Whether counsel, Mr. Rose, was ineffective when he did not read the April 9, 2002, order until May 23, 2002, and noticed the error 45 days after the fact.

The State presents the following issues:

I. Should appellant’s untimely filed appeal be dismissed for lack of jurisdiction in this Court to hear and decide his issues?
II. Did the district court abuse its discretion by denying appellant’s motion for sentence reduction?
III. Did appellant have a constitutional right to counsel, and did he in any event receive effective assistance of counsel?

FACTS

[¶ 3] After being charged with nineteen counts of obtaining property by false pretenses, Padilla pled nolo contendere to eight counts and was sentenced on March 23, 2001. On March 22, 2002, Padilla filed a motion for sentence reduction for docket numbers 26-345 and 349. By an order entered April 9, 2002, the district court denied the motion stating that it had reviewed the Judgment and Sentence of the Court entered on March 28, 2001, and found the sentence appropriate.

[¶ 4] The docket number for the judgment and sentence was also 26-345 and 349. At some point, a handwritten docket number of 26-146 was superimposed over these typed docket numbers throughout the record although 26-146 was a dismissed case. No appeal was taken from that order denying the motion for sentence reduction. On December 11, 2002, Padilla, filed a pro se motion requesting reconsideration .of . that order, claiming that the original motion for sentence reduction and its denial were filed for a dismissed case and no decision was made on the merits. According to the State, the incorrect docket number was employed; however, the orders were properly filed under 26-349. On December 16, 2002, the district court denied that motion for reconsideration, and Padilla appealed that denial on January 2, 2003.

DISCUSSION

Standard of Review

[¶ 5] The State contends that Padilla’s failure to timely appeal the order denying the motion for sentence reduction, entered on April 9, 2002,-has deprived this Court of jurisdiction to hear his appeal and it must be dismissed. The denial of a motion for sentence reduction is a final appealable order that must be appealed within thirty days to obtain the court’s jurisdiction. Hopkinson v. State, 704 P.2d 1323, 1326 (Wyo.1985); W.R.A.P. 1.05; W.R.A.P. 2.01. If an appeal is untimely, the court lacks jurisdiction, and the appeal must be dismissed. This Court reviews jurisdictional matters de novo. Tomlin v. State, 2001 WY 121, ¶ 5, 35 P.3d 1255, ¶ 5 (Wyo.2001). After reviewing the merits of Padilla’s motion for sentence reduction, the district court entered an order of denial on April 9, 2002. No timely appeal was taken from that order. Padilla’s motion for reconsideration alleged that the district court had mistakenly ruled on .a case that had been dismissed and had not reached the merits of his original motion for sentence reduction.

Jurisdiction

[¶ 6] Because jurisdiction is at issue, we will review whether this Court can obtain jurisdiction by considering whether Padilla had timely requested relief from judgment as permitted by W.R.C.P. 60(b). The Wyoming Rules of Criminal Procedure do permit the rules of civil procedure to apply to questions not governed by criminal procedure rules. W.R.Cr.P. 1(a). Further, we have indicated that under limited circumstances this Court will consider an appeal from a motion for reconsideration. See Sherman v. Rose, 943 P.2d 719, 720-21 (Wyo.1997) (reconsideration motion must be the functional equivalent of a motion to amend or alter judgment); see also Simon v. Teton Bd. of Realtors, 4 P.3d 197, 202 (Wyo.2000) (arbitration procedural review request did not alter statutory filing time).

[¶ 7] Here, Padilla must comply with the timing requirements of W.R.Cr.P. 35(b):

(b) Reduction. — A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within one year after the sentence is imposed or probation is revoked, or within one year after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within one year after entry of any order or judgment of the Wyoming Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation.

His original motion was filed within one year and his motion for reconsideration filed on December 11, 2002, must provide grounds for relief under the applicable rule of civil procedure and must also comply with that rule’s timing requirements.

[¶ 8] Our review shows that Padilla’s motion for reconsideration was not based upon any ground that affords him relief from the order denying sentence reduction. See W.R.C.P. 60. The contents of his original motion requested a review on the merits and the district court’s denial made clear that it had reviewed the judgment and sentence for which Padilla requested reduction. Padilla’s motion for reconsideration contended the district court had mistakenly considered a dismissed case; however, the record does not support that contention. Therefore, Padilla’s motion for reconsideration cannot be considered a proper motion under Rule 60, and the district court and this Court are without jurisdiction to consider the motion.

[¶ 9] This appeal is dismissed for failure to invoke the jurisdiction of this Court.

      . Rule 60 in relevant part provides:
      (b) Other reasons. — On motion, and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation.

      . (a) Scope. — Except as provided in Rule 54, these rules govern the procedures to be followed in all criminal proceedings in all Wyoming courts. When not inconsistent with the Juvenile Court Act, these rules shall also apply in delinquency proceedings. In the event that a procedure is not established by these rules, the Wyoming Rules of Civil Procedure shall govern.