author: WILKINS, Justice:

text:
    2003 UT 12
    William MILLER; Joshua A. Lee; Karl Blunck; Karen Blunck; Kacey Blunck; Marlo Chappel; Michele Morley; Molly Llewellyn; Amy Thomas; Citizens of Nebo School District for Moral and Legal Values, a Utah nonprofit corporation; Kristine Burningham; Lynda Thomas; and Jeana Barney, Plaintiffs and Appellants, v. Wendy WEAVER and Utah State Board of Education, Defendants and Appellee.
    No. 20010065.
    Supreme Court of Utah.
    April 4, 2003.

      Matthew Hilton, Springville, for appellants.
    Richard A. Van Wagoner, Stephen C. Clark, Salt Lake City, for appellee.
   WILKINS, Justice:

4 1 Plaintiffs challenge the district court's dismissal of their first amended complaint against defendant Wendy Weaver (Weaver) for failure to state a claim upon which relief may be granted under Utah Rule of Civil Procedure 12(b)(6). We affirm.

FACTUAL HISTORY

T2 Since the party moving to dismiss a complaint admits the facts as alleged and challenges the complainant's right to relief based on those facts, we accept the material allegations of the complaint as true and recite them accordingly. See, eg., Hall v. Dep't of Corr,, 2001 UT 34, 12, 24 P.3d 958; St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991). Defendant Weaver is currently a tenured faculty member at Spanish Fork High School in the Nebo School District, Utah County, Utah. She began teaching physical education and coaching the girls volleyball team at the high school in 1979, and continued to coach the team until 1997. Weaver currently teaches psychology, which she has been doing since 1988, and it is her conduct as a psychology teacher that apparently inspired the first five counts of the complaint. Specifically, Weaver administered personality tests to her students, scoring and discussing the results of those tests in class, and also required her students to keep dream journals and interpret their dreams in class. Weaver criticized and disparaged the Church of Jesus Christ of Latter-day Saints during class and pressured a student to express his religious and moral beliefs in a hostile class environment. Additionally, Weaver encouraged students to question traditional sources of authority and determine for themselves whether alternative "lifestyles" are right or wrong.

T3 Weaver is also a lesbian, a fact publicly revealed to residents of the Nebo School District in 1997. - In the summer of 1997, the Nebo District School Board (school board) attempted to restrain her speech regarding her sexual orientation, and placed a memorandum in her personnel file to that effect. Weaver was also removed from her position as the girls volleyball coach at that time. In October 1997, Weaver filed a complaint in federal district court alleging violations of her constitutional rights; she ultimately sue-ceeded in having the unlawful restraints removed and her coaching position reinstated. See Weaver v. Nebo Sch. Dist., 29 F.Supp.2d 1279 (D.Utah 1998).

4 Soon after Weaver initiated her lawsuit in federal court, members of the community began submitting formal complaints about her to the school board. Joshua A. Lee, a plaintiff and student of Weaver, first complained to the school board on October 29, 1997. A petition signed by 3,000 school district residents "seeking specific redress" was presented to the school board on November 12, 1997. On December 16, 1997, another "specific request for action" was sent to counsel for the school district and the Utah Attorney General's Office by the Citizens of Nebo School District for Moral and Legal Values (Citizens of Nebo). That same day, counsel for the school district notified counsel for Citizens of Nebo that the school district would not take action within the time frame requested, and that Citizens of Nebo must pursue civil litigation to resolve their concerns.

PROCEDURAL HISTORY

T5 The original plaintiffs' first complaint was filed on December 23, 1997. A later, independent proceeding, which consolidated the original complaint and the first amended complaint, was initiated on May 26, 1998. We proceed based upon the contents of the first amended complaint since it was the foundation of the district court's ruling on appeal to this court. The original plaintiffs were present and former students of Weaver, students of Spanish Fork High School but not of Weaver, parents of students, grandparents of students, and taxpayers from the school district. The defendants were the Utah State Board of Education; Craig Jackson, Director of the Division of Occupational and Professional Licensing; Jan Graham, Attorney General of Utah; and Wendy Weaver. The first amended complaint set forth ten causes of action: Counts I, II, IV, VIII, IX, and X sought judicial declarations of whether Weaver had violated various state statutes governing the conduct of teachers and psychologists; Counts III, V, and VII sought judicial declarations of whether Weaver had violated several provisions of the Utah Constitution.

16 The original plaintiffs then filed two motions for partial summary judgment. The State followed with a motion for judgment on the pleadings, and Weaver moved the court for dismissal under rule 12(b)(6). The original plaintiffs then filed a motion to amend the first amended complaint, and included a copy of the second amended complaint. After oral arguments on all of the pending motions, the district court granted Weaver's motion to dismiss seven of the nine remaining counts (Counts I, II, III, IV, VIII, IX, and X); the motion was also granted as to dismissal of four plaintiffs who were either grandparents of high school students or parents without high school students. The district court ruled that all six statutory claims failed to meet the requirements for a declaratory judgment action. The three constitutional claims, according to the district court, met all declaratory judgment requirements, but Count III was dismissed for failure to assert a valid constitutional interest. Weaver's motion was denied as to Counts V and VII; however, these claims were subsequently voluntarily dismissed to allow appeal of a final order disposing of all claims. . The district court also granted the State's motion to dismiss Jan Graham and Craig Jackson as defendants, and granted the original plaintiffs motion to amend the first amended complaint.

T7 Plaintiffs on appeal comprise one taxpayer, four former students of Weaver, one former Spanish Fork High School student, two parents of a former Spanish Fork High School student, and two former students of Weaver who were not a party to the first amended complaint. Weaver is the only defendant on appeal. Plaintiffs challenge the district court's ruling on Weaver's motion to dismiss, and present two issues for review: (1) whether the plaintiffs present legally sufficient claims for a declaratory judgment action, and (2) whether the complaints plead sufficient facts to establish a prima facie violation of the statutes and regulations at issue that would serve as a basis for declaratory judgment.

STANDARD OF REVIEW

18 As an appellate court, our powers of review are limited. In cases such as this, where a district court has granted a motion to dismiss after accepting the complaint as true and testing the legal sufficiency of the claims, we grant no deference to the district court's legal conclusions. We review the district court's legal ruling for correctness, and will affirm that ruling only if it is clear the plaintiffs' complaint fails as a matter of law. First Equity Fed., Inc. v. Phillips Dev., LC, 2002 UT 56, 1 11, 52 P.3d 1137. Furthermore, we "may affirm the judgment appealed from 'if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action.' " Id. (quoting Dipoma v. McPhie, 2001 UT 61, 1 18, 29 P.3d 1225).

ANALYSIS

I. STATUS OF THE SECOND AMENDED COMPLAINT

19 At the outset, we must address plaintiffs' request for de novo review of both their first and second amended complaints in this case. In their motion to amend the first amended complaint, the original plaintiffs attached a copy of their second amended complaint and stated that it was "filed contemporaneously with this motion." However, the second amended complaint was not actually date stamped and filed separately from the motion, and was not originally included in the record on appeal. Nor, for that matter, had the court yet granted leave to file the second amended complaint at the time it was proffered. Amended complaints that are filed without leave of the court are without legal effect; an attempted amendment cannot rise to the level of a cause of action until the court recognizes it as such. Hansen v. Dep't of Fin. Insts., 858 P.2d 184, 186-87 & n. 3 (Utah Ct.App.1993) ("Amended complaints filed without leave of court are 'without legal effect and will not be considered. " (quoting Baxter v. Strickland, 381 F.Supp. 487, 491 an. 4 (N.D.Ga.1974))).

[10 The district court granted the original plaintiffs' motion to file second amended complaint at the same time it granted Weayer's motion to dismiss. Specifically, the district court stated that the "remaining Plaintiffs shall have 30 days from the date of this Ruling to file their Second Amended Complaint." The district court's ruling was exhaustive, addressing all of the elements of each claim and carefully indicating which parts of the first amended complaint should be further modified. The district court dismissed seven of the nine claims at issue in the first amended complaint and denied standing to at least four of the original plaintiffs. The remaining plaintiffs still had two valid constitutional claims to pursue and a roadmap for revising the claims that were dismissed.

€ 11 By granting thirty days to the remaining plaintiffs to file a second amended complaint, the district court clearly indicated that it was not going to accept the previously proffered second amended complaint. The second amended complaint that the original plaintiffs had included with their motion merely added two plaintiffs and re-wrote two claims as one. It still contained all of the original plaintiffs and almost all of the original statutory claims, without substantially changing any of the problems in the first amended complaint, and was wholly unresponsive to the district court's legal determinations.

€{12 Instead of filing a second amended complaint that conformed with the district court's ruling, the original plaintiffs sought clarification of that ruling. Clarification was denied. The original plaintiffs then voluntarily dismissed all of the claims that survived the ruling and sought a final, appeal-able order from the district court disposing of all remaining claims properly before the court. By choosing not to file a revised second amended complaint and instead pursuing an appeal of the ruling on the first amended complaint, the original plaintiffs rendered their previously proffered second amended complaint a nullity. See, eg., Williams v. State, T1I6 P.2d 806, 808 (Utah 1986) ("Although [appellant] might have waived his right to amend the complaint and treated the order of dismissal as final, his filing of the amended complaint indicates that he did not intend to treat the dismissal as final.").

T 13 Plaintiffs have provided no legal support for their request that this court consider the entirety of both the first and second amended complaints. The second amended complaint stands before this court as an unadjudicated pleading. Because this court may only entertain appeals from a final judgment or order, claims or issues that have not been fully disposed of below cannot be considered. Utah R.App. P. 3(a) Loffredo v. Holt, 2001 UT 97, T 11, 37 P.3d 1070. Thus, we decline to examine any arguments premised upon the contents of the second amended complaint. Furthermore, to the extent that plaintiffs' broad request indicates a desire for this court to consider claims that have been voluntarily withdrawn or dismissed, we do not do so in the absence of special exceptions, and will not do so in this case. Barton v. Utah Transit Auth., 872 P.2d 1036, 1039 (Utah 1994).

T14 As an additional consequence of our holding on this issue, this appeal is dismissed as to Molly Llewellyn and Amy Thomas: these plaintiffs are improperly before this court because they were not parties to the first amended complaint and consequently not parties to the judgment on appeal.

II. PROPRIETY OF A DECLARATORY JUDGMENT ACTION

115 The Declaratory Judgments Act grants a district court jurisdiction to determine any question of construction or validity of a statute that affects the rights, status, or other legal relations of any person and to declare that person's rights, status, or legal relations under the statute. Utah Code Ann. § 78-83-2 (2002). While the power of Utah's judiciary is not constitutionally restricted to "cases" and "controversies," we still require four threshold elements to be satisfied before we may proceed with a declaratory judgment action: (1) a justiciable controversy, (2) parties whose interests are adverse, (8) a legally protectible interest residing with the party seeking relief, and (4) issues ripe for judicial determination. Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah 1983). Stated another way, "[a] justiciable controversy authorizing entry of a declaratory judgment is one wherein the plaintiff is possessed of a protectible interest at law or in equity and the right to a judgment, and the judgment, when pronounced, must be such as would give specific relief" Baird v. State, 574 P.2d 718, 716 (Utah 1978) (internal citation omitted). We conclude that this case is non-justiciable for at least two reasons: it lacks a plaintiff with a protectible legal interest, and it would fail to produce a judgment that would serve a useful purpose or grant specific relief.

A. Legally Protectible Interest

116 We first address the plaintiffs' argument that they possess a legally protec-tible interest in the controversy. We have held previously that a declaratory judgment action may be maintained by a plaintiff who can show that "the justiciable and jurisdictional elements requisite in ordinary actions are present." Lyon v. Bateman, 119 Utah 434, 489, 228 P.2d 818, 820 (1951). The district court ruled that there were no express or implied private rights of action to support plaintiffs' statutory claims against Weaver. Plaintiffs argue on appeal that Utah Code Ann. section 58A-7-202 (1997) by itself grants a private right of action against a school district employee, and that the legislative history of the 1999 amendments, codified in section 58A-8-421 (2000), provides additional support for the existence of a private right of action.

T17 When interpreting a statute, this court looks first to the statute's plain language to determine the Legislature's intent and purpose. Lovendahl v. Jordan Sch. Dist., 2002 UT 130, T21, 68 P.3d 705. We read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters. State v. Schofield, 2002 UT 182, T8, 63 P.38d 667; State v. Maestas, 2002 UT 123, 154, 63 P.3d 621 (Regarding "whole statute" interpretation, the court stated: " 'A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole" " (quoting Norman J. Singer, 2A Sutherland, Statutory Construction § 96:05 (4th ed.1984))). We follow " 'the cardinal rule that the general purpose, intent or purport of the whole act shall control, and that all the parts be interpreted as subsidiary and harmonious to its manifest object.. " Faux v. Mickelsen, 725 P.2d 1872, 18375 (Utah 1986) (quoting Sutherland, supra, § 46.05).

{18 Utah Code Ann. section 58A-7-202(1) (1997) reads as follows:

No civil action by or on behalf of a student relating to the professional competence or performance of a certified employee of a school district, or to the discipline of students by a certified employee, application of in loco parentis, or a violation of ethical conduct by an employee of a school district may be brought in a court until at least 60 days after the filing of a written complaint with the board of education of the district, or until findings have been issued by the board after a fair hearing on the complaint, whichever is sooner.

Plaintiffs summarily assert that the statute contains two basic precepts: first, that it establishes a private right of action by or on behalf of a student against a teacher for violation of any statute that concerns the professional competence or performance, or ethical conduct, of a teacher, and secondly, that it establishes procedural limitations on those actions. We disagree. Section 53A-T-202 is a purely procedural statute, one that sets forth a mechanism for review and action by the local school board or State Board of Education before a civil claim, premised on a pre-existing legal right, is filed against a teacher. By its plain language, the statute reads as an unambiguous staying provision, and is properly limited in application only to those claims involving conduct over which the local school board or State Board of Education has some authority and may properly take action to deter or punish.

{19 Plaintiffs urge us to read the phrase "Inlo civil action by or on behalf of a student . relating to [enumerated categories] may be brought in a court ..." as creating a new cause of action, imparting new legal rights and duties to students and employees of our public schools. This imposes an unreasonable and unworkable construction, and requires us to infer language and meaning that does not appear on the face of the statute. What does appear is a description of the conduct and concerns that will be governed by the restrictions that follow. This phrase is expository, and its meaning is dependent upon further elucidation. Subsection (1) as a whole seeks to restrict pre-existing legal rights; it requires students or other proper plaintiffs to first file a written complaint with the local school board and then wait at least sixty days before they can pursue their civil action against a teacher. Subsections (2) and (3) of the statute detail further procedural requirements for dealing with complaints to the school board, such as a fifteen-day action period for referring the complaint to the State Board of Education and a second staying provision for civil action if the complaint is referred to the State Board of Education. The primary thrust of the statute as a whole, its "manifest object," is procedure. Appropriately, the procedural requirements are effective only as to claims involving issues that the Legislature deems most appropriate for the local school board or State Board of Education to address.

120 In the absence of language expressly granting a private right of action in the statute itself, the courts of this state are reluctant to imply a private right of action based on state law. Young v. Salt Lake City Sch. Dist., 2002 UT 64, ¶ 21, 52 P.3d 1230. See also J.H. v. West Valley City, 840 P.2d 115, 125 (Utah 1992) (holding that statutory standards for hiring police officers do not create "a private right of action for failure to follow any specific procedure in hiring police officers"); Broadbent v. Bd. of Educ. of Cache County Sch. Dist, 910 P.2d 1274, 1277-80 (Utah Ct.App.1996) (holding that teacher does not have private right of action under the Utah Educator Evaluation Act to enforce its provisions); Nielson v. Div. of Peace Officer Standards and Training (POST), 851 P.2d 1201, 1203-04 (Utah Ct.App.1998) (holding that administrative rule does not give the public substantive rights in the disciplinary process for police officers). This reluctance is particularly strong when the Legislature has already designated a method of resolution through an administrative agency specifically empowered to handle issues such as the discipline or termination of teachers and police officers.

21 In this case, a method for remedying violations of the statutory guidelines already exists. We see no clear indication from the statute itself that a private right of action was intended as an additional remedy. Here, we must require more than a mere allusion to "civil action[s]" as evidence of a legislative intent to impart substantive rights. The Utah Code has many examples of the explicit language which creates such rights, none of which require anyone to add language or make inferences to impart the full meaning of the statute. See, eg., Utah Protection of Public Employees Act (The Whistleblower Act), § 67-21-4 (2000) ("An employee who alleges a violation of this chapter may bring a civil action for appropriate injunctive relief or actual damages."); Utah Uniform Securities Act, § 61-1-22 (2000) ("A person who offers or sells a security in violation of [enumerated statutes] ... is liable to the person selling the security to or buying the security from him" and may sue at law or in equity.).

$22 Furthermore, it would be inconsistent with the Legislature's statutory scheme to infer a private right of action against teachers in this case. The overall purpose of the Educational Professional Practices Act (EPPA), within which the statute in question is found, is to create the Professional Practices Advisory Commission (the Commission) and empower the Commission to hear complaints against educators regarding "immoral, unprofessional, or incompetent conduct, unfitness for duty, or other violations of standards of ethical conduct, performance, and professional competence." § 58A-7-110 (1997). The Legislature has declared education to be a profession and has created the Commission to act as "the disciplinary arm" of the State Board of Education. § 58A-7-102 (1997); Ambus v. Utah State Bd. of Educ., 858 P.2d 1372, 1374 (Utah 1993). The Commission is authorized, inter alia, to issue subpoenas, hold hearings, take evidence, warn or reprimand a teacher, and make recommendations to the Board of Education for further action. §§ 58A-7-110, -204 (1997) (recodified at § 58A-6-806 (2000)). Consistent with the authority vested in Utah's public education system as a whole, disciplinary action against a teacher, whether it involves warnings, reprimands, suspension or revocation of certification, or termination of. employment, must be taken before the only bodies authorized to act in this regard: the local school district, the Commission, or the State Board of Education. "To allow [plaintiffs] a private right of action would be to override, by judicial fiat, a system which the Legislature has at least tacitly, if not expressly, sanctioned." Broadbent, 910 P.2d at 1280.

123 Plaintiffs also argue that a private right of action must exist because the State Board of Education is allowed to consider evidence from civil actions in disciplinary proceedings and may deny a license to anyone found guilty in a eriminal, civil, or administrative action of "behavior evidencing unfitness for duty." We can find no indication from the statutory language, purpose, or overall scheme that in any way suggests that the ability to bring evidence from and of a civil trial into an administrative disciplinary proceeding consequently creates a new, legally protectible, interest in enforcing the regulatory statutes in question. Nor do plaintiffs offer any substantive analysis or authority for the proposition; thus, we cannot agree with plaintiffs on this point.

124 Likewise, we refuse to consider the legislative history of subsequent amendments to the statute offered by plaintiffs. "Unless the statute on its face is unclear or ambiguous, we find no need to delve into the uncertain facts of legislative history." Visitor Info. Ctr. Auth. v. Customer Serv. Div., Utah State Tax Comm'n, 930 P.2d 1196, 1198 (Utah 1997). We generally presume that any amendment to a statute indicates a legislative intent to change existing legal rights and therefore is not a reliable indication of intent as to the earlier, unamended statute. Id. Plaintiffs present no argument to this court supporting the retroactive application of the 1999 amendments and appear to continue to rely not on the added language, but on the essentially unchanged portion of the statute. Thus, we decline to examine the legislative history for added illumination as to the Legislature's intent in this matter.

{25 In conclusion, we hold that section 53A-7-202 does not grant a private right of action to students and parents of students to enforce statutory and regulatory requirements for public school employees. The students, former students, and parents of students before us on appeal lack a legally protectible interest in this controversy, and we affirm the district court's dismissal of Counts I, II, IV, VIII, IX, and X as to these plaintiffs.

B. Justiciable Controversy

126 We additionally note that declaratory judgment would be improper in this case at the most fundamental level. The Declaratory Judgments Act provides courts with discretion to deny declaratory relief in appropriate situations: The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.

The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.

Utah Code Ann. § 78-83-6 (2002). We have stated time and again that the Declaratory Judgments Act does not authorize this court to issue mere advisory opinions or judgments regarding non-justiciable controversies. Seq, eg., Jenkins, 675 P.2d at 1148-50; Baird, 574 P.2d at 716 (" 'Judicial adherence to the doctrine of separation of powers preserves the courts for the decision of issues between litigants capable of effective determination. " (quoting 1 Anderson, Declaratory Judgments § 16 (2d ed.1951))); Lyon, 228 P.2d at 820 ("While the statutes authorizing courts to render declaratory relief should be liberally construed in order to provide prompt settlements of controversies and to stabilize uncertain legal relations, courts, nevertheless,

€27 In the case before us, we can see no way in which a decree by this court on any of the statutory issues before us would terminate the uncertainty or controversy between Weaver and any of the plaintiffs. Weaver would remain a teacher, students would continue to take her classes, and the school board would remain free to refuse action on plaintiffs' complaints. This court does not have the authority to fire Weaver or order the school board to do so; nor may we force the State Board of Education to take any action at this point. In fact, plaintiffs do not ask us to take any action of that nature. Their only request appears to be that we declare whether Weaver is violating the statutes and regulations in question. It is not our province to do so in this manner: resolution of the plaintiffs complaint lies elsewhere. Plaintiffs cannot avoid the mandatory disciplinary procedures of the State Board of Education, and if they feel that the Board is failing to comply with its own procedures, plaintiffs must ask the court to compel the Board to act-not to act in the Board's stead. In truth, plaintiffs' requests are " 'for advisory opinions on multifaceted matters, answers to which could scarcely fail to proliferate rather than resolve controversy' " Baird, 574 P.2d at 718 (quoting Cranston v. Thomson, 530 P.2d 726, 730 (Wyo.1975)).

128 This holding also disposes of the claims based on taxpayer standing. "This Court has long held that a taxpayer has standing to prosecute an action against municipalities and other political subdivisions of the state for illegal expenditures." Jenkins, 675 P.2d at 1158. We have granted taxpayers a right of action to enjoin unlawful expenditures or to prevent increased taxes or misapplication of public funds. Id. However, plaintiffs in this case seek only a declaratory judgment, not an injunction, and they are attempting to bring their action against an individual, not a political subdivision, As we stated above, a declaratory judgment issued by this court regarding Weaver's past conduct will not prevent the school board or State Board of Education from continuing to spend public funds as they see fit. The first amended complaint fails to present any claims for which a declaratory judgment would serve a useful purpose or terminate the controversy giving rise to these proceedings.

III. CONSTITUTIONAL CLAIM

29 Despite the broad language employed by the plaintiffs in their request for relief from this court, see supra Part I, plaintiffs fail to offer any argument supporting a reversal of the district court's holding that there were no fundamental rights at issue in their sole remaining constitutional claim. Based on the total lack of analysis, we must presume that plaintiffs do not contest this holding. Consequently, we will not review the trial court's ruling that the fundamental parental rights asserted by plaintiffs were not protected by article I, section 25 of the Utah Constitution. See, eg., State v. Thomas, 961 P.2d 299, 304-05 (Utah 1998); Kel-bach v. MecCotter, 872 P.2d 1083, 1085 (Utah 1994).

CONCLUSION

180 We affirm the applicable portions of the district court's dismissal on the grounds that the first amended complaint presents a non-justiciable controversy and fails to assert a protectible legal interest. Since our holding disposes of all claims before this court, we need not address the second issue presented to us on appeal. Additionally, we grant Weaver her costs on appeal, but decline to award further relief based on the plaintiffs' "utter failure to address the substance of the [district court's] ruling." We note that while we repeatedly elected not to address issues that were inadequately briefed, we do not feel that plaintiffs' briefs were so lacking that further relief is necessary.

T 31 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice RUSSON, and Judge BILLINGS concur in Justice WILKINS opinion.

I 32 Justice HOWE did not participate herein; Court of Appeals Judge JUDITH M. BILLINGS sat.

      . We use the term "plaintiffs" to reference the parties bringing this appeal, and "original plaintiffs" to reference the original parties to the action.

      . - Our recitation of the facts in this case is limited to those material to our decision. Additional factual background may be found in Weaver v. Nebo School District, 29 F.Supp.2d 1279 (D.Utah 1998).

      . Specifically, the named plaintiffs from the first amended complaint were Citizens of Nebo, William Miller, Donna Stevens, Joshua A. Lee, Karl Blunck, Karen Blunck, Kacey Blunck, Ron Hammond, Alisa Hammond, Kristine Burningham, Marlo Chappel, Michele Morley, Lynda Thomas, and Jeana Barney.

      . - Count VI was voluntarily withdrawn with prejudice prior to the oral hearing on the parties' motions.

      . The plaintiffs asked this court to conduct a "de novo examination of the First and Second Amended Complaints filed by appellants in this case," and to "reverse the trial court's dismissal of Appellants' First Amended Complaint and those legal rulings that vitiated statutory and constitutional claims made in the Second Amended Complaint that have been appealed."

      . The language of the section upon which plaintiffs rely is virtually unchanged in the amended statute, and plaintiffs do not argue that the amendments change the purpose or intent of the statute. However, the amended statute does contain new language addressing standing and is recodified in a different part of Title 53A. Since plaintiffs appear to rely upon the 1997 version and do not argue for retroactive application of the 1999 amendments on standing or for an analysis of the recodification, we will rely upon and refer to the 1997 version of this statute. All other statutes that have remained unchanged since this case was filed will be cited to their most recent version.

      . Utah Code Ann. subsections 53¥A-7-202(2) and (3) (1997) read as follows:
      (2) Within 15 days of receiving a complaint under Subsection (1), a local school board may elect to refer the complaint to the State Board of Education.
      (3) If a complaint is referred to the State Board of Education, no civil action may be brought in a court on matters relating to the complaint until the State Board of Education has held a hearing and issued its findings or until 90 days after the filing of the complaint with the local school board, whichever is sooner.


source: Caselaw Access Project

author: BILLINGS, Associate Presiding Judge:

license: Public Domain

text:
    2003 UT App 66
    STATE of Utah, in the interest of S.Y. and Z.Y., persons under eighteen years of age. T.Y., Appellant, v. State of Utah, Appellee.
    No. 20020508-CA.
    Court of Appeals of Utah.
    March 6, 2003.

      Gary L. Bell, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, Carol L. Verdoia, and John M. Peterson, Assistant Attorneys General, Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, Guardian Ad Litem.
    Before Judges BILLINGS, BENCH, and GREENWOOD.
   OPINION

BILLINGS, Associate Presiding Judge:

T1 T.Y. appeals the juvenile court's order terminating her parental rights to S.Y. and Z.Y. We affirm.

BACKGROUND

T2 T.Y. is the natural mother of eight-year-old S.-Y. and three-year-old Z.Y. On July 12, 2000, an investigator for the Division of Child and Family Services (DCFS) and two police detectives went to the parents' home to investigate a referral regarding the possible production of methamphetamine (meth). When they arrived, the garage door was open and one of the detectives smelled an odor he believed indicated meth production. The DCFS investigator testified she spoke with T.Y., who denied using drugs but admitted she was selling meth out of her home. One of the detectives testified the father produced a quantity of meth, a digital scale, and a smoking pipe. Later that day, DCFS placed the children in protective custody for safety reasons relating to, among other things, the presence and sale of meth in the home.

T3 On October 27, 2000, the juvenile court deemed the children neglected and continued temporary custody of the children with their maternal grandmother. As directed by the juvenile court, DCFS issued a family service plan on November 6, 2000, requiring the mother to: 1) complete random urinalyses (UA's); 2) complete a drug and alcohol assessment through Salt Lake County Substance Abuse Center; 8) provide safe, stable, and adequate housing and maintain employment; 4) visit the children upon completing two clean UA's; and 5) provide a safe, drug-free environment for the children.

T4 In early November of 2000, after receiving further information that both parents were still active in the meth trade, police recovered a small bag containing meth residue in the trash outside of the parents' residence. Police executed a search warrant at the parents' home several days later and recovered an iodine lab, a quantity of meth, bottles of ephedrine tablets, firearms, scales, and packing material. According to one detective, T.Y. stated that she had a meth addiction but was not involved in meth sales. Both parents were arrested and temporarily incarcerated, with criminal action still pending at the time of the termination hearing. Also that day, a DCFS caseworker found bottles, diapers, formula, baby food, children's clothing, toys, and a half-used bottle of Z.Y.'s prescription formula in the parents' home. TY. was not at that time authonzed to visit with the children.

15 On January 12, 2001, a DCFS caseworker reported T.Y. made no progress regarding the five service plan directives issued by the juvenile court on November 6, 2000. DCFS filed a petition to terminate both parents' parental rights to S.Y. and Z.Y. on January 25, 2001.

T6 During the time the parents were not authorized to visit the children, who were in the custody of their maternal grandmother, the parents were pulled over by police during a traffic stop on June 15, 2001 and cited with three counts of having children in a vehicle with improper restraints. Two of these children were S.Y. and Z.Y. The children were removed from the maternal grandmother's home and placed in a foster-adopt home, where they remain today.

17 On January 10, 2002, police searched the parents' trash and found: meth; a glass pipe; a tube and plastic straw; thirteen bottles of Heat, a chemical used to soak pill binders to separate pseudoephedrine as part of meth production; fifty-three empty bottles of pseudoephedrine, an over-the-counter medication often used as a precursor to meth; and a large quantity of empty matchbooks without the striker plate, which can be used to harvest red phosphoreus in the production of meth. By one detective's calculations, the amount of precursor chemicals they found in the trash could manufacture up to four-hundred-fifty-six doses of street meth. During execution of a search warrant on January 16, 2002, police found a large amount of drug paraphernalia, meth, and ephedrine in the parents' home. In T.Y.'s bedroom, police located meth, glass vials, and several pipes. Police arrested T.Y. on meth-related charges..

T8 At the termination hearing, the foster mother testified that S.Y. told her she knew her parents were doing drugs and it seared her. SY. also told her foster mother she knew where the drugs were in her parents' house and was not allowed to let her friends into the bedroom. S.Y. further described to her foster mother "a long thin thing with a thing on the end that [TY.] would dump something in and smoke."

T 9 In terminating T.Y.'s parental rights to SY. and Z.Y., the juvenile court emphasized the children's numerous exposures to meth and meth production, as well as T.Y.'s addiction to meth and its effect on her ability as a parent. The court found nothing had changed with T.Y., except that she had become more and more emaciated. In its Findings of Fact, Conclusions of Law and Order Terminating [T.Y.'s] Parental Rights (termination order), the court found, inter alia, that TY,. neglected the children and is an unfit parent. TY. appeals the termination order.

ISSUES AND STANDARDS OF REVIEW

110 TY. first asserts the juvenile court failed to make findings required by the amended version of Utah Code Ann. § 78-82-407 (termination statute), effective May 6, 2002, in its order terminating T.Y.'s parental rights. The juvenile court's decision concerning which version of the termination statute applied is a matter of statutory interpretation, which presents a "question( ] of law which we review for correctness, according no particular deference to the [Juvenile] court's interpretation." State v. Coleman, 2001 UT App 281, 15, 34 P.3d 790 (quotations and citation omitted). However, where "a party ... fails to bring an issue to the [juvenile] court's attention," that party is "barred from asserting it on appeal" absent a showing of "exceptional cireumstances or plain error." Brigham City v. Stuart, 2002 UT App 317, 1414, 57 P.8d 1111.

«111 Next, T.Y. argues the evidence supporting the juvenile court's findings and decision to terminate her parental rights was insufficient. "Findings of fact in a parental rights termination proceeding are overturned only if they are clearly erroneous." In re GB., 2002 UT App 270, 19, 53 P.3d 963 (quotations and citation omitted). - "The clearly erroneous standard requires that if the findings ... are against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made, the findings ... will be set aside." In re SL., 1999 UT App 390, I 20, 995 P.2d 17 (alterations in original) (quotations and citation omitted). "Moreover, we defer to the juvenile court because of its advantageous position with respect to the parties and the witnesses in assessing credibility and personalities." In re G.B., 2002 UT App 270 at % 9, 58 P.3d 963 (quotations and citation omitted).

ANALYSIS

I. Retroactive Application of the Amended Termination Statute

112 TY. argues the amended version of the termination statute, effective May 6, 2002, applied to the juvenile court's termination order. The termination statute provides the grounds upon which juvenile courts may terminate parental rights See Utah Code Ann. § 78-82-407 (2002). In relevant part, the amended termination statute added the following provision: "In any case in which the [juvenile] court has directed [DCFS] to provide reunification services to a parent, the court must find that [DCFS] made reasonable efforts to provide those services before the court may terminate the parent's [parental] rights...." Id. § 78-8a-407(8)(a).

13 T.Y. first points out that in October of 2000, the juvenile court ordered DCFS to provide reunification services to T.Y.'s family through the implementation of a formal service plan. Because T.Y.'s termination trial did not conclude until May 22, 2002, and the juvenile court issued its termination order on June 5, 2002, T.Y. contends the juvenile court erred in not first finding DCFS made "reasonable efforts" in its reunification services before terminating T.Y.'s parental rights.

[ 14 However, TY. did not make this argument to the juvenile court. Thus, T.Y. can only obtain relief from this court by demonstrating plain error by the juvenile court or exceptional cireumstances. - See Brigham City, 2002 UT App 317 at " 14, 57 P.8d 1111; Coleman, 2001 UT App 281 at 15, 34 P.8d 790. On appeal, T.Y. does not argue plain error or exceptional cireumstances, and we therefore decline to address T.Y.'s claim. See Brigham City, 2002 UT App 317 at 114, 57 P.3d 1111.

IL. Sufficiency of the Evidence

Y15 TY. challenges approximately twenty of the juvenile court's individual factual findings from its termination order in arguing the evidence was insufficient to terminate T.Y.'s parental rights. We focus on several of the juvenile court's findings regarding the children's exposure to the use and production of meth, and conclude those findings are not clearly erroneous and were sufficient to support the juvenile court's decision to terminate T.Y.'s parental rights.

[16 The juvenile court terminated T.Y.'s parental rights because, inter alia, T.Y. "neglected the children" and is an "unfit ... parent[ ]." Under the termination statute, "The [juvenile] court may terminate all parental rights with respect to a parent if it finds any one of the following: ... that the parent has neglected or abused the child;" or "that the parent is unfit or incompetent." Utah Code Ann. § 78-82-407(1)(b), (c) (2002). "In determining whether a parent or parents are unfit or have neglected a child the [juvenile] court shall consider, but is not limited to, the following cireumstances, con-duet, or conditions: ... habitual or excessive use of ... controlled substances, or dangerous drugs that render the parent unable to care for the child." Utah Code Ann. § 78-(2002).

T 17 The juvenile court's findings involving the children being exposed to meth use and production include: "18. The parents' habitual use and involvement in the production of methamphetamine has caused them to be unfit parents"; "22. The evidence found in the home ... shows clear evidence of production and use of methamphetamine"; and "40. Methamphetamine has been and continues to be used, produced and sold in the parents [sic] home, and this situation has not changed." We conclude there is ample evidence to support these findings. ©

118 For instance, a detective testified that on July 12, 2000, he smelled an odor indicative of meth production in the parents' garage, and recovered meth and drug paraphernalia from the father. A DCFS caseworker testified that also on July 12, T.Y. admitted she was selling meth out of the home. In early November of 2000, both parents were arrested and temporarily incarcerated after police found meth residue in the parents' trash and recovered an iodine lab, a quantity of meth, bottles of ephedrine tablets, firearms, scales, and packing material from the parents' home. A detective also testified T.Y. admitted she was addicted to meth,. The State further presented testimony that on January 10, 2002, police searched the parents' garbage and found meth, paraphernalia, and enough meth precursor chemicals to manufacture up to four-hundred-fifty-six doses of street meth. In T.Y.'s bedroom, police also found meth and paraphernalia, and arrested T.Y. on meth-related charges.

119 Additionally, the foster mother testified at trial that S.Y. told her she saw her mother smoke meth and was frightened of her parents' drug use. According to the foster mother, S.Y. also said she knew where the drugs were in her parents' house and was not allowed to let her friends into the parents' bedroom. Also at trial, the judge observed that in the previous year and a half she "watched T.Y. become more and more emaciated."

120 The evidence is sufficient to demonstrate T.Y.'s neglect and unfitness as a parent. The juvenile court could "reasonabl{y] infer[ ]," In re J.W., 2001 UT App 208,1 7, 30 P.3d 1282, that the children's exposure to T.Y.'s ongoing drug use and meth production in the home "render[(s TY.] unable to care for [her children]." Utah Code Ann. § 78-sa-408(2)(c). As the juvenile court explained, whether T.Y. personally participates in meth production is irrelevant, because "[t]he fact is that production of methamphetamine in [T.Y.'s] home is extremely dangerous, and ... present[s] a clear, constant danger to [T.Y.'s] children." The juvenile court also reasonably concluded that "use of meth-amphetamines is totally, completely inconsistent with responsible parenting." In sum, T.Y.'s insufficiency claim fails.

CONCLUSION

121 Because it was not presented to the trial court, we refuse to reach the issue of whether the amended version of Utah Code Ann. § 78-82a-407, requiring a trial court to find that DCFS made reasonable efforts to provide services, is applicable to this case. Further, we conclude there is sufficient evidence supporting the juvenile court's findings and decision to terminate T.Y.'s parental rights. We therefore affirm.

T22 WE CONCUR: RUSSELL W. BENCH, PAMELA T. GREENWOOD, Judges.

      . M.Y., the natural father of S.Y. and Z.Y., does not appeal the termination of his parental rights.

      . During the month of July 2000, T.Y. tested positive for meth five times.

      . - Police testified iodine production is a precursor to meth production.

      . Although some of the juvenile court's challenged findings do not directly involve meth use and production, we find it unnecessary to address the sufficiency of every individual finding challenged by T.Y. ©

      . For convenience, we cite to the most recent version of the termination statute, which remains substantively unchanged within the portion cited.


author: HILL, Chief Justice.

text:
    Louis D. COSCO, Appellant (Plaintiff), v. Judith UPHOFF, Director, Wyoming Department of Corrections; Bruce Daniels, Warden, Wyoming State Penitentiary (WSP); Vance Everett, Warden, WSP; Gary Starbuck, Warden, WSP; Bill Hettgar, Warden, WSP; Jerry Steele, Warden, WSP; all named in their official and individual capacities, Appellees (Defendants).
    No. 02-107.
    Supreme Court of Wyoming.
    March 4, 2003.
    Representing Appellant: Pro Se.
    Representing Appellees: Hoke MacMillan, Attorney General; John W. Renneisen, Dep- - uty Attorney General; and Jay Jerde, Senior Assistant Attorney General.
    Before HILL, C.J., and LEHMAN and VOIGT, JJ.; and HARTMAN and PATRICK, District Judges.
   HILL, Chief Justice.

[11] Appellant Louis D. Coseo (Cos-co) appeals the dismissal for failure to state a claim upon which relief could be granted pursuant to W.R.C.P. 12(b)(6) of his declaratory judgment action against various officials of the Wyoming State Penitentiary (WSP) alleging that they wrongfully confiscated his personal property. We will not address the propriety of the district court's ruling because Cosco failed to timely file his notice of appeal.

[12] Cosco is a long-term resident of WSP. Sinee his incarceration, which began in 1969, he had acquired a considerable amount of personal property. In 1997, WSP amended the Inmate Rules Handbook, including the rules specifying the personal property an inmate may possess. Pursuant to the revised rules, WSP removed a significant portion of Coseo's personal property. Initially, Coseo brought suit in federal court, but that action was dismissed. See Cosco v. Uphoff, 195 F.3d 1221 (10th Cir.1999). In September of 2001, Cosco signed a release under which WSP agreed to pay for certain specified items in exchange for his agreement to release "all claims ... in any way arising out of the alleged loss of the following described property and any other matters relating to the Wyoming State Penitentiary's disposition of any and all of his property prior to the date of his signature below."

[13] On September 25, 2001, Cosco filed this action seeking declaratory relief pursuant to the Uniform Declaratory Judgment Act (UDJA). Wyo. Stat. Ann. §§ 1-87-101 to -115 (LexisNexis 2001). The defendants, various employees of WSP, countered with a motion to dismiss pursuant to W.R.C.P. 12(b)(6) for a failure to state a claim upon which relief could be granted. After a hearing, the district court issued a decision letter on March 22, 2002 granting the defendants' motion. The district court based its decision upon four grounds: (1) Cosco waived all of his claims when he signed the release; (2) the UDJA does not provide for the recovery of monetary damages; (8) the defendants were immune from suit under the Wyoming Governmental Claims Act (WGCA); and (4) Coseo did not comply with the requirements of the WGCA by failing to file a notice of claim. The final paragraph in the district court's decision letter stated: "This DECISION LETTER will serve as the Court's final determination and order of this matter." Cosco filed his notice of appeal on April 25, 2002, 34 days after the issuance of the decision letter.

[T4] Rule 2.01 of the Rules of Appellate Procedure provides that "[aln appeal from a trial court to an appellate court shall be taken by filing the notice of appeal with the clerk of the trial court within 80 days from entry of the appealable order. ..." The timely filing of a notice of appeal is jurisdictional, in the absence of which, we must dismiss. Wiens v. American Motors Corporation, 717 P.2d 322, 323 (Wyo.1986); Jackson v. State, 547 P.2d 1203, 1205 (Wyo.1976). Without a timely notice of appeal, the jurisdiction of this Court is not invoked. Wiens, 717 P.2d at 322.

[15] Ideally, the district court should have issued a final order separate from its decision letter. The order could have been attached to the decision letter or issued concurrently therewith,. Nonetheless, the decision letter clearly stated that it was to constitute the district court's final, appeal-able order in this proceeding. Coseo's notice of appeal was filed 34 days thereafter and was clearly untimely under our rules. Cosco did not attempt to make a showing of exceusa-ble neglect in support of a request for an extension of time to file his notice of appeal pursuant to Rule of Appellate Procedure 2.01(a)(1). Accordingly, this Court's jurisdiction was never invoked, and Coseo's appeal must be dismissed.

[16] Dismissed.

      . Cosco does not raise the question of whether it is appropriate for a decision letter to constitute a final order. We note, however, for the benefit of the district courts that any decision letter intended to operate as a final order must comply with the requirements of W.R.C.P. 58.


author: GOLDEN, Justice. HILL, Chief Justice,

text:
    2003 WY 45
    Jorge ESTRADA-SANCHEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Defendant).
    No. 01-154.
    Supreme Court of Wyoming.
    April 9, 2003.

      Thomas B. Jubin of Jubin & Zerga LLC, Cheyenne, Wyoming, Representing Appellant.
    Hoke MacMillan, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; T. Alan Elrod, Assistant Attorney General; Theodore E. Lauer, Director, and Carrie Dawn Tate-Meyer, Student Intern, and Meri Ramsey, Student Intern, of the Prosecution Assistance Program, Representing Appellee. Argument by Ms. Ramsey.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument

   GOLDEN, Justice.

[T1] Jorge Estrada-Sanchez appeals his convictions on two counts of conspiracy with intent to deliver methamphetamine. He challenges subject matter jurisdiction and the sufficiency of the evidence that permitted his conduct in California to form the basis of a Wyoming prosecution; he contends that the Information improperly varied from the evidence at trial; and he complains of prose-cutorial misconduct and trial errors.

[12] We reject the State's assertion that a detailed affidavit cured a constitutionally defective Information, or that the failure to obtain a bill of particulars waived it. We reverse and remand for a new trial.

ISSUES

[13] The parties agree that the issues are:

1. Was the evidence insufficient to support the convictions because there was no evidence of the Defendant's specific intent agreement that the controlled substances be further distributed by anyone in Park County, Wyoming?
2. Did the Court permit an improper var-fiance from the Information filed, because the Defendant was charged with conspiring in Park County, but the Court instructed the jury that it could convict the defendant for conspiring elsewhere with intent to have an effect in Park County, Wyoming?
8. Did the prosecutor's misconduct of seeking and obtaining an instruction to the jury that a witness had refused to testify for the state and was held in contempt therefore require reversal?
4. Did the prosecutor's misconduct of falsely stating to the jury that there were no deals, when, in fact, the Court had ordered immunity for 14 witnesses-every non-law enforcement witness in the case, require reversal?
5. Were the Defendant's constitutional due process and confrontation rights were [sic] violated because the Court failed to swear the interpreter?

FACTS

[14] Between March 1997 and February 1998, two women, Chandel Smith and Lisa Lee, both of whom were romantically involved with Sanchez, made seven trips to California to see him. On two of those trips, the women returned to Wyoming with methamphetamine supplied to them by Sanchez, and they were later arrested for that possession. Those two trips formed the basis of two counts of conspiracy charged against Sanchez for which he was tried before a Park County, Wyoming, jury. Another five trips were admitted into evidence as W.R.E. 404(b) evi-denee to show a course of conduct. The first two trips occurred in March 1997 and June 1997. On the third trip, in September 1997, Chandel Smith was arrested with two pounds of methamphetamine, outside of Meeteetse, Wyoming, and this trip formed the basis for the first charge against Sanchez. The fourth, fifth and sixth trips involved Lisa Lee and occurred between November of 1997 and January of 1998. On her seventh trip in February 1998, which formed the basis of Count II, Lee testified that Sanchez sold her one pound of methamphetamine - for $8,000.00, and gave her two weeks to pay him for the drug. She used about a half-pound, and weighed out some quantity to sell in Cody, but got arrested. The half-pound was retrieved by friends, sold in Montana, and money sent back to Sanchez in California.

[15] Sanchez was tried by jury, testified on his own behalf, but was convicted and sentenced to eight to ten years in the Wyoming state penitentiary. On appeal, Sanchez contends that insufficient evidence exists to show that he conspired to distribute drugs in Wyoming; a fatal variance exists between the Information and the evidence adduced at trial; and prosecutorial misconduct occurred, all errors that require reversal.

DISCUSSION

Insufficient Evidence

[16] In his first issue, Sanchez contends that when the evidence is insufficient to prove that Sanchez intended for any purchasers to possess and deliver methamphetamine in Wyoming, then Wyoming does not have subject matter jurisdiction over a crime committed in California. The standard of review for sufficiency of the evidence issues is well established. We assess whether all the evidence presented is adequate to form the basis for an inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State. We leave out of consideration the evidence presented by the unsuccessful party which conflicts with the successful party's evidence, and afford every favorable inference to the successful party's evidence which may be reasonably and fairly drawn from that evidence. Even though it is possible to draw other inferences from the evidence presented, the jury has the responsibility to resolve conflicts in the evidence. We will not substitute our judgment for that of the jury when we are applying this rule; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did. Black v. State, 2002 WY 72, ¶4, 46 P.3d 298, ¶4 (Wyo.2002); Vanvorst v. State, 1 P.3d 1223, 1228 (Wyo.2000); Harris v. State, 933 P.2d 1114, 1123 (Wyo.1997); Blake v. State, 933 P.2d 474, 480 (Wyo.1997).

[17] The trial courts of Wyoming have subject matter jurisdiction over drug conspiracies when the conspirators intend for the conspiracy to have an effect within the State of Wyoming. Marquez v. State, 12 P.3d 711, 715 (Wyo.2000). While in New Mexico, Marquez agreed with a person there to deliver drugs to someone in Wyoming in exchange for cash. Marquez was arrested in Colorado before reaching Wyoming. In this case, Sanchez sold drugs to a purchaser in California, and that purchaser then drove the drugs back to Wyoming and sold them. Sanchez first contends that the Information does not charge him with extraterritorial conduct that caused a result in Wyoming and, therefore, Wyoming lacks subject matter jurisdiction. At trial, however, the jury was instructed to convict if the State proved beyond a reasonable doubt that Sanchez had entered into a conspiracy specifically intended to have an effect in Park County, Wyoming. He contends, however, that this evidence demonstrated only that a sale occurred in California, and, without evidence of any specific intent to sell in Park County, insufficient evidence exists to support a conviction under the jury instructions.

[T8] "When determining whether sufficient evidence exists to support a verdict, it is not our function to assess the facts or reweigh the evidence. We must assume that the jurors believed only the evidence adverse to the defendant." Walston v. State, 954 P.2d 987, 988 (Wyo.1998). Sanchez correctly states that a sale of drugs to a purchaser without any agreement that the purchaser will further distribute them to others is not a conspiracy, and, therefore, in this case, the jury had to first decide whether Sanchez and a purchaser conspired to possess drugs with the intent to distribute them, and then had to decide whether the conspiracy was intended for the possession and distribution of drugs in Park County, Wyoming. The evidence must have demonstrated that any conspiracy was not intended to occur in California. As Sanchez points out, the ree-ord shows that several attempts by the State failed to elicit direct statements from co-conspirators that Sanchez knew the drugs would be resold in Park County, Wyoming, on the trips that formed the basis of the two charges; however, these same witnesses testified to conduct by Sanchez that supports the jury's verdict. Witnesses testified that, on several occasions, Sanchez sold drugs to them in California, hid the drugs somewhere on their vehicle, and then followed them to Wyoming and removed the drugs for them. The witnesses were provided these drugs on condition that they would pay him from proceeds earned from selling them, and later the witnesses traveled back to California with thousands of dollars paid to Sanchez. Sufficient evidence supports the jury's verdict based on the instructions to the jury that required a guilty verdict if the evidence showed a conspiracy that intended the drugs would be distributed in Park County, Wyoming.

Information

[19] The Information filed in this case states:

Comes Now the State of Wyoming ... and informs the Court and gives the Court to understand that the above-named Defendant:
Count I: On or between August 1, 1997 and September 9, 1997, in Park County, Wyoming, did conspire to commit any offense within the State of Wyoming or conspired to commit an act beyond the State of Wyoming, namely: did deliver, or possess with intent to manufacture or deliver, a controlled substance ... in violation of Wyoming Statute $ 85-7-1031(a)(ii)(Michie 1997), all in violation of Wyoming Statute § 35-7-1042 (Michie 1997). ...

Count II is identical, except that the dates alleged are "Loln or between January 1, 1998 and February 13, 1998."

[110] Sanchez contends that the Information is unequivocal: it alleges that the conspiratorial agreement occurred in Park County or Sanchez conspired to commit an act beyond the State of Wyoming; however, as the jury instructions discussed above indicate, the jury determined his guilt on another charge, and this guilty verdict is the product of a fatal variance between the crime charged and that proved, and thus must be reversed.

[111] "An indictment to be legally sufficient must fairly indicate the crime charged, must state the essential elements of the alleged crime and be sufficiently definite so that the defendant can prepare his defense and be granted protection from further prosecution for the same offense (double jeopardy)" Gonzales v. State, 551 P.2d 929, 933 (Wyo.1976). A defendant has a constitutional right when charged with a crime to be informed of the nature and cause of the charge against him. Id. at 980. The Sixth Amendment to the United States Constitution states in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the aceusation[.]" - Similarly, Article 1, § 10 of the Wyoming Constitution provides in pertinent part: "In all criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation."

The purpose of these constitutional requirements is to assure adequate notice of the accusations to the defendant to enable him to prepare a defense. Vernier v. State, 909 P.2d 1344, 1351 (Wyo.1996). The constitutional requirements are implemented in W.R.Cr.P. 3(b)(1), which provides that the information must be a "plain, concise and definite written statement of the essential facts constituting the offense charged." Id.

[T13] Under the constitutional requirements and the criminal procedure rule, an information is sufficient if it: 1) contains the elements of the offense charged; 2) fairly informs a defendant of the charge against which he must defend; and 3) enables a defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. Id. at 18351 (citing Stewart v. State, 724 P.2d 439, 440-41 (Wyo.1986)). A variance arises when the evidence presented at trial establishes facts that are different from those alleged in the indictment. Capshaw v. State, 11 P.3d 905, 910 (Wyo.2000) (quoting Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193-94, 60 L.Ed.2d 743 (1979); and United States v. Powell, 982 F.2d 1422, 1431 (10th Cir.1992)). Similarly, a shift in the government's theory from the one set out in the indictment to that presented at trial may also constitute a prejudicial variance. United States v. McClatchey, 217 F.3d 823, 831 (10th Cir.2000). We will not reverse unless the variance affects the defendant's substantial rights. Capshaw, 11 P.3d at 910. Even in cases where an appellate court determines the existence of a variance, such a variance

"is not fatal unless the defendant could not have anticipated from the indietment what evidence would be presented at trial or unless the conviction based on an indict, ment would not bar a subsequent prosecution." 38 Charles Alan Wright, Federal Practice and Procedure § 516 at 27 (2d ed.1982); see Stoner [United States v.] 98 F.3d [527] at 536 [ (10th Cir.1996) 1.

Id.

[T 14] -In Capshaw, this Court determined that a detailed affidavit attached to the Information adequately informed the accused of the nature of the charge and allowed him to present his defense, and further found that his failure to obtain a bill of particulars required this Court to decide that his substantial rights were not affected. Id. at 910-11. Here, the State points to a detailed affidavit and Sancher' failure to obtain a bill of particulars as well as the jury instruction as permitting this Court to decide that any error in the Information did not affect substantial rights.

[115] The State's position assumes that the presence of any or all of these is significant, although the Information did not contain an element of the offense charged, specifically, a conspiracy occurred that was intended to have an effect in Wyoming. Our general rule, however, is that the failure to include an element of the offense causes the Information to be constitutionally defective. We, therefore, must consider whether the detailed affidavit and the jury instructions cured the defective Information, or whether by failing to obtain a bill of particulars, Sanchez waived his right to challenge the Information. We conclude that the error was not cured or waived.

[1T16] The affidavit attached to the Information describes the conspiracy in great detail but only confirms the Information's statement that the agreement forming the basis of the conspiracy charge occurred in Park County, Wyoming, and acts intended to further its objective occurred outside of the state. In short, it supports Sanchez' assertion that the Information contains a fatal variance, and does not cure any error. Sanchez filed a motion for a bill of particulars. The issue was discussed at a hearing; however, no resolution was reported, and we must agree with Sanchez assessment that the district judge gave it short shrift. Ultimately, the State did not file a bill of particulars, but, instead proceeded under the original information. A bill of particulars, however, is not a part of an Information and cannot cure an Information that is fundamentally defective for the reason that it lacks an element of the offense. Also, although Sanchez might waive his right to contest an insufficient Information by failing to request a bill of particulars, he cannot be said to waive challenging a fundamentally defective Information where he has requested a bill of particulars, but failed to obtain one. Similarly, the purpose of a jury instruction differs, and, therefore, cannot cure this defective Information because it was not a part of the Information nor did it serve to amend that Information. State v. Vangerpen, 125 Wash.2d 782, 888 P.2d 1177, 1180-81 (1995).

[117] Having decided that the Information in this case was fundamentally defective, the remaining issue is the appropriate remedy. The parties seem to agree that this court should reverse and remand for new trial; however, it would seem that the appropriate remedy is reversal of the conviction, and dismissal of the charges without prejudice to the State. Reversed with instructions to reverse the conviction and dismiss without prejudice.

HILL, Chief Justice,

dissenting, in which LEHMAN, J., joins.

[T 18] I concur with the majority's conclusion that there was sufficient evidence to support the jury's verdict. However, I must respectfully dissent because I do not believe that there was fatal variance between the crime charged in the Information and that proved at trial.

[119] The Information charged that Sanchez conspired "to commit an offense within the State of Wyoming, or conspired to commit an act beyond the State of Wyoming." The instruction presented to the jury at trial stated that to convict Sanchez, the State needed to prove beyond a reasonable doubt that Sanchez had entered into a conspiracy specifically intended to have effect in Park County, Wyoming. The majority concludes that the failure to include an element of the offense charged in the Information-namely, that a conspiracy occurred that was intended to have an effect in Wyoming-was a fatal variance mandating reversal. I cannot agree with this analysis. Although the language in the Information and the instructions to the jury did not mesh perfectly, there can be no question that the Information "fairly indicate[d] the crime charged, [stated] the- essential elements of the alleged crime and [was] sufficiently definite so that the defendant [could] prepare his defense" and granted protection from prosecution for the same offense. Gonzales v. State, 551 P.2d 929, 933 (Wyo.1976); 15A C.J.S. Conspiracy § 162 (2002).

[120] While the Information says that Sanchez conspired "to commit an offense in Wyoming," and the jury instruction says he committed an act "intended to have an effect in Park County, Wyoming," I fail to see where there is a practical difference between the two. The factual basis for charging Sanchez in a Wyoming jurisdiction was that he conspired with others to possess drugs with the intent to distribute them in Park County, Wyoming. Obviously, conspiring to possess drugs with the intent to distribute them is an offense in Wyoming and was intended to have an effect in Wyoming-the successful sale of an illegal substance in Park County. The two statements are merely logical corollaries of each other, not contradictory.

[121] The majority opinion cites the factors set out in Gonzales but does not analyze them within the context of this case. This is not a situation where the Information charged the defendant with one crime but the jury was instructed on another. Sanchez makes no serious argument that the language difference impaired his ability to prepare or make an effective defense or that it left him open to future prosecution for the same offense. In fact, the only reasonable reading of the record is that Sanchez was well aware of the charges against him and presented an adequate, if not necessarily effective, defense. In short, there was no prejudice to Sanchez. The majority's conclusion has elevated form over substance while failing to give due regard to the actual practical effect of the alleged variance in light of our decision in Gonzales.

[122] I would affirm Sanchez' conviction in all respects.

      . § 35-7-1031. Unlawful manufacture or delivery; counterfeit substance; unlawful possession.
      (a) Except as authorized by this act, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:
      (i) A controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than twenty (20) years, or fined not more than twenty-five thousand dollars ($25,000.00), or both;
      (i) Any other controlled substance classified in Schedule I, II or III, is guilty of a crime and upon conviction may be imprisoned for not more than ten (10) years, fined not more than ten thousand dollars ($10,000.00), or both.]
      Wyo. Stat. Ann. § 35-7-1031 (Michie 1997).
      § 35-7-1042. Attempts and conspiracies.
      Any person who attempts or conspires to commit any offense under this article within the state of Wyoming or who conspires to commit an act beyond the state of Wyoming which if done in this state would be an offense punishable under this article, shall be punished by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense the commission of which was the object of the attempt or conspiracy.
      Wyo. Stat. Ann. § 35-7-1042 (Michie 1997).


author: GOLDEN, Justice.

text:
    2003 WY 49
    TPJ, a minor, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. C-01-3.
    Supreme Court of Wyoming.
    April 16, 2003.

      Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, and Tari L. Elam, Student Intern, of the Prosecution Assistance Program, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[T1] The Juvenile Court of the Ninth Judicial District adjudicated TPJ, age 16, to be delinquent following his admission of committing numerous acts of burglary. Following the adjudication hearing, at a later restitution hearing the juvenile court ordered TPJ to pay a total of $1,964.59 as restitution to the victims of his delinquent acts of burglary. The restitution amount included $41.59 as the cost of a car alarm which one of TPJ's victims purchased and installed in her car after TPJ's burglary of her car and $300.72 as the cost of repair to a garage door allegedly damaged during TPJ's burglary of another victim's residence. TPJ challenged these particular costs at the restitution hearing and renews that challenge on appeal. As for the cost of the car alarm, TPJ asserts that it is not authorized under the statutory language "any damage or loss caused by the child's wrongful act." Wyo. Stat. Ann. § 14-6-247(a)(v) (LexisNexis 2001). As for the cost of the garage door repair, TPJ asserts that the State failed to prove by a preponderance of the evidence that he damaged the garage door.

[T2] Although the State counters TPJ's challenge on its merits, it first contends that TPJ's notice of appeal is both defective and untimely filed. As we shall explain below, we hold that TPJ's appeal is neither defective nor untimely; the relevant statutory provision of the Juvenile Justice Act does not authorize an award of restitution for the cost of the car alarm purchased and installed by the victim of a delinquent act after the commission of that act; the State's evidentiary standard as to restitution under that relevant statutory provision is a preponderance standard; and, applying that evidentiary standard, the State's proof as to restitution for the garage door repair satisfied that standard. Consequently, we affirm the order of restitution with respect to the cost of the garage door repair and reverse the order of restitution with respect to the cost of the car alarm.

ISSUES

[13] TPJ presents the following issue for our review:

I. Did the district court abuse its disceretion by ordering the appellant to pay restitution for a car alarm and alleged damage to a garage door?

The State contends that two issues are present in this appeal:

1. Does the defective and untimely notice of appeal deprive this court of jurisdiction to consider this appeal?
2. Did the juvenile court abuse its disceretion in ordering appellant to pay restitution for the cost of a car alarm and for damage done to a garage door?

FACTS

[T4] The initial hearing upon the specific allegations in the delinquency petition filed by the county and prosecuting attorney, as authorized by Wyo. Stat. Ann. § 14-6-226, was held March 29, 2001. TPJ admitted committing numerous acts of burglary, including those involving the Brent Galles residence, where a garage door was allegedly damaged, and a car owned by Barbara Smith, who later purchased a car alarm, and provided a factual basis to support his admissions. Following TPJ's admission, the juvenile court broached the subject of disposition.

[T5] The State expressed hesitancy in proceeding in the initial hearing with disposition because it had "no idea what the restitu-tional figure is" The juvenile court then expressed the desire to proceed with disposition without having the restitution amounts, subject to TPJ's and his counsel's consent to proceed and subject to the State's supplying those amounts to TPJ and his counsel within twenty days. The juvenile court required TPJ and his counsel to make written objections, if any, within fifteen days after the State supplied the amounts to them. All agreed to the juvenile court's proposed procedure.

[46] The juvenile court then received the State's recommendation for disposition and comments about that recommendation from others present, including TPJ and his counsel. The juvenile probation coordinator, Teri Van Etten, who had prepared the disposi-tional report, TPJ's mother and grandmother, and TPJ's uncle were also present. Next, the juvenile court announced its disposition which included, among other matters, TPJ's placement at the Wyoming Boy's School for an indeterminate period of time.

[17] Before adjourning the hearing, the juvenile court instructed Ms. Van Etten to acquire and deliver the restitution information to the county attorney. Following the initial hearing, the juvenile court entered on April 2, 2001, the Order Following Initial Hearing, approved as to form by the county attorney, TPJ's counsel, and Ms. Van Etten, which order expressly included a provision addressing the court's requirement with respect to the restitution information.

[18] In April 2001, the county attorney timely provided TPJ's counsel with the required restitution information which included each victim's name and address, property lost or damaged and the amounts sought in restitution for each victim. TPJ's counsel timely objected in writing to certain items contained therein. Not until August 3, 2001, however, did the county attorney move in writing for a restitution hearing to resolve TPJ's objections. The juvenile court scheduled that hearing for August 22, 2001. The hearing took place as scheduled. At the hearing, the juvenile court took evidence and heard argument from counsel concerning Barbara Smith's purchase and installation of a car alarm and the estimated cost of Brent Galles' garage door repair.

[19] At the conclusion of the hearing, the juvenile court announced its decision, ordering TPJ to pay a total of $1,964.59 as restitution, which included the amounts of $41.59 as the cost of the car alarm and $800.72 as the cost of garage door repair. This appeal followed.

DISCUSSION

Standard of Review

[T10] Our standard of review of restitution orders is limited to a search for procedural error or a clear abuse of discretion. Alcaraz v. State, 2002 WY 57, ¶5, 44 P.3d 68, ¶5 (Wyo.2002). We will not find an abuse of discretion if sufficient evidence shows a reasonable basis for estimating the loss. Id. "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously." Id.

[T11] TPJ's first issue presents a question of statutory interpretation, and we look first to finding the answer in the language of these provisions. "Determining the lawmakers' intent is our primary focus when we interpret statutes. Initially, we make an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe together all parts of the statutes in pari materia, giving effect to each word, clause, and sentence so that no part will be inoperative or superfluous. We will not construe statutes in a manner which renders any portion meaningless or produces absurd results." - In re WJH, 2001 WY 54, ¶ 7, 24 P.3d 1147, ¶7 (Wyo.2001).

[112] In considering his second issue, we see that in his reply brief, TPJ agrees with the State that in criminal cases we review whether the amount of restitution was proved by a preponderance of the evidence and that burden of proof should be applied in juvenile restitution cases. We agree and hold that is the burden of proof by which we review whether sufficient evidence proved the amount of damages to the garage door. See Renfro v. State, 785 P.2d 491, 493 (Wyo.1990).

[T13] The State's issue that the appeal was untimely is a jurisdictional challenge. To invoke appellate jurisdiction, appeals must be filed no later than thirty days after the district court enters its final order. In re Interest of BW, 12 P.3d 675, 677 (Wyo.2000); W.R.A.P. 2.01. The timely filing of a notice of appeal is jurisdictional. Holmquist v. State, 902 P.2d 217 (Wyo.1995). "A late filing of an appeal results in an incurable jurisdictional defect, leaving this Court with no authority to resolve the case." Id. at 217-18.

The Appeal Is Neither Defective Nor Untimely

[T14] The juvenile court's Order Following Restitutional Hearing was entered September 4, 2001. One week later, on September 11, 2001, TPJ's counsel filed a notice of appeal giving notice of the intention to appeal the "Judgment and Sentence of the Court rendered on the 22nd day of August, 2001, by the Honorable Nancy Guthrie, District Judge, Ninth Judicial District."

[T15] Accompanying this notice was a copy of the juvenile court's order following the restitutional hearing referenced above. The appellate proceeding progressed in normal course, with the parties submitting the case to this Court on written briefs, As earlier mentioned, although the State in its brief counters on the merits TPJ's enumerated errors with respect to the restitution ordered for Smith's car alarm and Galles' garage door repair, the State first contends that TPJ's notice of appeal is defective and untimely filed. If the State's contentions are correct, the State reasons, then this Court lacks jurisdiction over this appeal.

[¥16] The State's contention that the notice of appeal is defective proceeds on two bases. First, focusing on the wording in the notice of appeal that references "the Judgment and Sentence of the court rendered on" August 22, 2001, the State asserts "[tThere is no judgment and sentence in juvenile cases.... Accordingly, there was no judgment and sentence in this case to appeal from." Second, although conceding that "the tenor of [TPJ's appellate brief] ... strongly indicates that it was the Order Following Restitutional Hearing which he wished to contest in this Court," the State condemns TPJ's notice of appeal for "failing] to identify the juvenile court's Order Following Resti-tutional Hearing, which was entered September 4, 2001." '

[¥17] TPJ's reply brief addresses the State's contention that the notice of appeal is defective. TPJ correctly points out that an express provision of the Juvenile Justice Act authorizes a juvenile to appeal "any final order, judgment or decree of the juvenile court ...." Wyo. Stat. Ann. § 14-6-283 (LexisNexis 2001). Identifying the crux of the State's contention to be that "TPJ's counsel did not correctly type the name of the hearing and order" in the notice of appeal, TPJ asserts that his counsel correctly identified in the notice of appeal the object of the appeal as the juvenile court's order rendered August 22, 2001, and also attached to that notice of appeal a copy of that juvenile court's order following restitutional hearing. Asserting that it is clear what TPJ was appealing, TPJ protests that for one to conclude otherwise is to put form over substance. We agree with TPJ's position and hold that the notice of appeal is not defective.

[T.18] The State's contention that the notice of appeal is untimely filed relies upon In re Interest of BW, 12 P.3d 675 (Wyo.2000), which the State contends is controlling. According to the State, in BW, as here, the juvenile court left open the amount of restitution when it entered the dispositional order and the juvenile did not appeal the disposi-tional order. In BW, according to the State, the juvenile court fixed the amount of restitution three years later; BW appealed, and this Court held that the appeal was untimely, and dismissed the appeal. Id. at 677.

[T19] TPJ addresses the untimeliness issues in his reply brief Confronting the State's reliance on BW, TPJ distinguishes the facts in that case from the facts in his case. He correctly points out that in BW, unlike in his case, in the initial hearing the juvenile court in fact ordered restitution in an amount to be determined after the victim of BW's sexual assault had received counseling and medical care. Id. We also note that in BW, unlike here, BW's legal contention was that the juvenile court lacked statutory authority to delay setting restitution. Id. at 676. We find that TPJ's analysis of BW is correct. In that case, we found that, unlike here, the juvenile court in the dispositional phase had "entered an open-ended restitu'tion order from which no appeal had been taken." Id. at 677. Here, in contrast to BW, the juvenile court, with the consent of both the State and TPJ and his counsel, reserved the restitutional order to a later time. When the juvenile court later held the restitution hearing and entered its final order on restitution, TPJ timely appealed that final order. W.R.A.P. 2.01. We hold that TPJ's notice of appeal is timely.

The Applicable Statutory Provision Does Not Permit Restitution For Car Alarm

[¥20] We now turn to TPJ's contention that the cost of Smith's car alarm, which she purchased and installed after he burglarized her car, is not authorized under the statutory language "any damage or loss caused by the child's wrongful act." $ 14-6-247(a)(v). The relevant part of that statute provides:

(a) For a child at any sanction level, the juvenile court may:
shooed ok
(v) Require the child and his parents or guardian to make restitution for any damage or loss caused by the child's wrongful act, except that the liability of the parent or guardian shall not exceed the limit established by W.S. 14-2-203[.]

Id. (emphasis added).

[T21] TPJ contends that the statutory language does not cover a victim's post-wrongful act purchase of a car alarm to be installed to prevent future car burglaries and not to replace an existing car alarm that was damaged or stolen during the commission of the juvenile's wrongful act in question. He contends that Smith's car was not equipped with a car alarm at the time of TPJ's wrongful act of burglarizing her car and TPJ did not damage or steal a car alarm in Smith's car when he committed the wrongful act of burglarizing Smith's car.

[122] TPJ asserts that the facts of his case most resemble the facts in Alcaraz v. State, 2002 WY 57, 44 P.3d 68 (Wyo.2002). There the victim store owner purchased a surveillance camera system because someone was stealing money from the store during hours when it was closed and the system identified Alcaraz as the thief Id. at 70. This Court reversed the district court's restitution order which ordered Alcaraz to pay for the system and remanded with directions that the district court make a reasonable apportionment of the system cost between Alearaz and the store owner. Id. at 73. This Court reasoned that Alcaraz should not pay for the system, but only a reasonable proportion, because the store owner realized future benefits from the system, beyond those benefits realized by apprehending Alcaraz. Id. TPJ says Smith will realize no benefits from the car alarm associated with his apprehension because he was apprehended without her having a car alarm; but Smith will realize future benefits from the car alarm in the form of preventing/thwarting possible future car break-ins by other burglars.

[123] According to the State, TPJ misconceives the nature of the loss suffered by Barbara Smith as a direct consequence of TPJ's actions, and the State argues that although Smith bought the car alarm after TPJ's wrongful act, she bought it because that wrongful act made Smith insecure and afraid that her car would be broken into again. Therefore, reasons the State, her fear, which motivated her to buy the car alarm, was a direct result of TPJ's wrongful act; his wrongful act caused her fear, and to alleviate it, she bought the alarm, and the Juvenile court properly considered that buying the car alarm was equivalent to "damage or loss" under the statute.

[124] The juvenile court held that TPJ's wrongful act was "the direct cause for [Smith's] purchasing a car alarm," relying on Dreiman v. State, 825 P.2d 758, 764 (Wyo.1992), a criminal burglary case in which the defendant paid restitution under Wyo. Stat. Ann. § 7-9-1038 for the victim's expense in changing locks to her residence which the defendant had earlier burglarized. The State contends that an evident analogy exists between Dreiman and TPJ's juvenile case: in each case the victim's fear caused by the defendant's criminal act motivated the victim to incur expense.

[125] The State correctly states that proceedings under the Juvenile Justice Act are not criminal, but are special proceedings. BW, 12 P.3d at 677. The proceedings are equitable and not punitive to accomplish the purpose of providing "treatment, training and rehabilitation" for children, and to "provide for the care, the protection and the wholesome moral, mental and physical development of children coming within its provisions." Wyo. Stat. Ann. § 14-6-201(0)@(C) and (c)(iii) (LexisNexis 2001); see also WJH, 119, 10. Accordingly, statutes providing for the care and discipline of juvenile delinquents are generally entitled to a liberal effect and a practical construction in favor of the child's welfare. WJH, 11 7, 8. The plain language of the statute, however, still controls our search for the legislative intent when it used the term "restitution for any damage or loss caused by the child's wrongful act" Id.

[126] Plainly, the statute limits the amount of restitution to the damages or losses caused by the juvenile's wrongful act and does not expressly extend to reimbursement of security devices added by the victim after the commission of the crime that will benefit the victim in the future. In Alcaraz, we determined that restitution should be ordered to compensate for legally recognized losses that directly resulted from the criminal act. Alcaraz, 114. To comply with this rule in that case, the district court was required to distinguish between those damages that would compensate the victim for monetary losses and the benefits that would continue to inure to the victim and, thus, could not be subject to restitution lest the victim gain a windfall. Id. By requiring there to be a direct causal connection between the juvenile's criminal act and the damages or losses incurred, we see that the car alarm was purchased after TPJ's burglary not because he stole or damaged one from the car, but for the future benefit to the victim of preventing other burglaries. Using Alcaras' analysis, we hold that the car alarm purchase was not caused by TPJ's criminal act, and we hold that the juvenile court abused its discretion in ordering restitution for reimbursement to Ms. Smith for the car alarm.

The Damage to the Garage Door Was Proved by Sufficient Evidence

[¥27) TPJ contends that the only evidence presented to the juvenile court was hearsay testimony by Irene Martinez, the victim/witness coordinator, that Mr. Galles had told her that the damage was not present before he and his family left for the weekend. The State contends that the juvenile court had TPJ's admissions that he and a friend had broken into the garage and evidence showing that it was likely that whoever broke into the garage had damaged the door, and the juvenile court found TPJ and his friend jointly and severally liable for the damages caused by their burglaries. An estimate for repairing the door was presented to the juvenile court, and based on the circumstantial evidence, the juvenile court had sufficient evidence to find that TPJ had damaged the door during the burglary in the amount shown by the repair estimate and did not abuse its discretion in ordering restitution. We agree with this assessment and hold that the juvenile court did not abuse its discretion.

[128] We affirm the order of restitution with respect for the cost of the garage door repair and reverse the order of restitution with respect to the cost of the car alarm.


text:
    Michaele K. MARX, Petitioner, v. Russell K. BENZEL, Respondent.
    No. S-10996.
    Supreme Court of Alaska.
    March 25, 2003.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   Opinion & Order

1. At issue is the superior court's order refusing to disqualify William Brattain from representing the defendant Russell Bengel, Michaele Marx sought the disqualification of Brattain because he had previously consulted with her as her potential attorney on a substantially related legal matter.

2. The undisputed facts are that Bengel contacted Brattain about representing his friend Marx who was in jail in Anchorage. Brattain had a two-hour consultation with Marx. Two subjects that were covered were Marx's complaint that she was not receiving psychological assistance to help her in overcoming the conditions that led to her incarceration and questions concerning the estate of her late husband.

8. The disputed facts concern discussions about a house that Marx had conveyed to Benzel. Marx claims that she gave Brattain "all of the details regarding my dispute with Mr. Benzel over the ownership of the house." Brattain says that the dispute with Benzel came up at the end of the consultation when Marx said she had "sort of a problem" with Benzel regarding the transfer of the house. Brattain asked her the nature of the problem and according to Brattain she said "I don't think he paid me enough money for it but I can't remember all of the details because I don't have any of the paperwork." According to Brattain he then said "Michaele, I was hired by Russ to help you with the conditions of your incarceration and to see if there was anything I could do regarding your husband's estate. I don't know anything about this house deal and I don't want to know anything about the house deal because it might be a conflict."

4. Even though what was said about the house is disputed, it is undisputed that on the same day of the meeting Brattain (apparently after talking to Benzel by telephone) prepared an "engagement letter" addressed both to Marx and Benzel that was a proposed contract to employ Brattain as counsel for Marx. One subject of the proposed engagement letter included reviewing and analyzing the transfer of property from Marx to Ben-zel, apparently as a mediator. The engagement letter characterizes Marx's claim concerning the house in a manner that limits the dispute to "amount, value and adequacy of the consideration...." Recognizing the potential conflict of interest, the engagement letter states that Marx and Benzel "agree that I will not represent either Michaele or Russell in the event of an actual controversy." Marx did not assent to the engagement letter and apparently had no further contact with Brattain.

5. Marx subsequently sued Benzel seeking to set aside the deed to the house. Thus this case represents the "actual controversy" as to which Brattain prospectively agreed that he would not represent Benzel (or Marx). Benzel defaulted and a judgment was rendered in favor of Marx. The judgment was set aside on November 15, 2002. A few days later Brattain entered his appearance for Benzel. Shortly thereafter Marx hired counsel, Robert Sparks, who promptly wrote to Brattain, asking him to withdraw as counsel for Benzel because of his prior contact with Marx. Brattain asked that this issue be held in abeyance until after the first of the year as he was about to go on vacation. On January 14, 2008, the current motion to disqualify Brattain was filed. At a hearing held February 24, 2003, the superior court denied the motion. Marx petitions for review from this order.

6. We grant the petition and reverse the order denying the motion for disqualification based on Rule 1.9(a) of the Alaska Rules of Professional Conduct.

7. Rule 1.9(a) provides:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.

We discussed this rule in Griffith v. Taylor, 937 P.2d 297, 301 (Alaska 1997), recognizing that a lawyer may not represent a new client in a substantially related matter in which the new client's interests are materially adverse to the interests of the former client. Here the substantial relationship test is met, because the conveyance of the house was discussed between Marx and Brattain. Only the level of detail is disputed. The question is whether Marx is a "former client." The answer is "yes" even though Brattain was not retained by Marx.

8. Griffen v. East Prairie School District, 945 F.Supp. 1251, 1254 (E.D.Mo.1996), presents an analogous situation. There was an initial consultation, the lawyer prepared a retainer contract but it was never signed, and the lawyer was not retained. The court held that the similar Rule 1.9 of the Missouri Rules of Professional Conduct governed the relationship. The prospective client with whom the lawyer conferred was protected as a "former client" under Rule 1.9 even though the lawyer was not ultimately retained. The court observed that the "relationship is established when the client believes that she is consulting a lawyer in his professional capacity and manifests her intention to seek professional legal advice." That was the situation in the Marx/Brattain meeting.

9. If there is former representation on a substantially related matter the former client is entitled to the protection of Rule 1.9(a) without showing that confidential information was actually disclosed. Griffith, 937 P.2d at 301; Griffen, 945 F.Supp. at 1254. Thus we have no occasion to inquire as to whether confidential information was actually disclosed during the Marx/Brattain meeting.

10. In conclusion, the petition for review is GRANTED, the order denying the motion for disqualification is REVERSED, and this case is REMANDED with directions to grant the motion for disqualification and for further proceedings.

Entered by direction of the court.