text:
    2000 OK CIV APP 67
    SOUTHWEST CUPID, and Mega Life & Health Insurance Company, Petitioners, v. Jaquetta JACKSON, and The Workers' Compensation Court, Respondents.
    No. 94,001.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    April 21, 2000.
    Brian McMahan, Oklahoma City, Oklahoma, For Petitioner,
    Fred L. Boettcher, Walt Brune, Ponca City, Oklahoma, For Respondent.
   OPINION

Opinion by

CAROL M. HANSEN, Vice-Chief Judge:

' 1 Petitioners, Southwest Cupid and Mega Life & Health Insurance Company (collectively Employer), seek review of an order of a three-judge panel of the Workers' Compensation Court affirming the trial court's judgment which awarded temporary total disability benefits to Respondent Jacquetta Jackson (Claimant). On January 28, 1999, Claimant brought a claim for cumulative injury to her hands, arms, and neck arising from the repetitive movement of packing garments for Employer. Employer defended on the grounds Claimant's claim related to a 1997 injury and was settled by joint petition in June 1998. The trial court found Claimant sustained cumulative trauma to her hand by aggravation of a pre-existing condition with Claimant's first awareness of the trauma in January 1999 and her last exposure on June 9, 1999.

T2 Employer first contends the court's order is not supported by any competent evidence. It argues all of the evidence established Claimant's claim was a continusation of her prior claim, and she admitted she knew the joint petition was a "full, final, and complete settlement" of her claim against Employer.

T8 Claimant testified she began working for Employer in 1996 sewing panties together. She filed a claim on February 5, 1997, for cumulative trauma to her hands, arms, shoulder, and neck from the repetitive work of sewing. She had carpal tunnel release surgery as a result of that injury and settled the claim by joint petition in June 1998. Claimant testified she was laid off for period, then went back to work for Employer in January 1998 as a packer, hanging, tagging, folding, and boxing garments. She said that in January 1999, when she filed the instant claim, her bands were burning, swelling, cramping, and turning blue.

[4 The trial court appointed an independent medical examiner (IME) on April 21, 1999. It directed the IME to determine whether Claimant's complaints were caused by a new injury, aggravation of a pre-existing injury, or a change of condition for the worse directly related to her prior injury and condition. The IME's written report stated the causation of Claimant's complaints was both aggravation of pre-existing condition and change of condition for the worse directly related to her prior problems. However, at his deposition, the IME indicated he was not using these terms as legal terms of art. He testified as follows:

(Cross-examination)
Q: Is it possible that [Claimant's] current symptomatology could have just been a gradual progression of the underlying injury?
A: I think it's a speculation. I cannot give you with medical certainty that that is the case.
(Redirect examination)
Q: Given her work activities that were repetitious and continue to be repetitious, can you say whether it might be more likely true than not true that the cause of her present condition is her work activities since June of 19987
A: Well, I would say that at least aggravated her condition ....
Q: Could you tell the court that it's more likely true than not true that the cause of the claimant's present problems are due to the aggravation of her pre-existing condition from her activities at work relative to simply the prior surgery that she had had in 1997?
A: That would be--I would be inclined to think it that way, sir.
Q: That it's more likely true than not true that her aggravation is more the cause of her current problems than her pre-existing surgery?
A: Yes, sir, And I think I give my opinion based on the amount of repetitious activity that she was doing and what she told me she was doing with so many garments every day.

T5 Employer offered controverting evidence and pointed out inconsistencies in Claimant's testimony. However, our review of a decision of a three-judge panel is confined to the search for any competent evidence supporting the decision. Owings v. Pool Well Service, 1992 OK 159, 843 P.2d 380, 382. The IME's testimony is competent evidence supporting the panel's decision.

16 Employer's next contention of error is the trial court erred as a matter of law by finding Claimant's continued work activities rose to the level of a new injury. It argues that in a cumulative trauma injury, the date of the accident is the date the claimant becomes aware of her injury and relates it to her employment, citing Williams Co. v. Lawrence, 1992 OK 3, 824 P.2d 1134. Employer asserts Claimant became aware of her injury in February 1997, and under Williams, her injury should thereafter be treated as a single event accident.

T7 In Williams, the issue was whether the statute of limitations barred the claimant's claim for job-related cumulative effect hearing loss. The claimant had retired from a 36-year career with the same employer. His job exposed him to loud noises. In 1965 an otologist told him he had suffered hearing loss and should avoid excessive exposure to loud noise to avoid further hearing loss. The Court held the claimant's injury was not divisible by degrees of hearing loss, but was a single accident deemed to have occurred at the time he became aware of his injury and causally connected it to his job. The Court, applying the pre-1985 version of the limitations statute, 85 0.8.1981 § 48, held the statute of limitations began to run at that time. Id. at 1186-1187.

T8 In Southwest United Industries v. Pol-ston, 1998 OK 78, 964 P.2d 210, 211, the Court considered whether liability for a cumulative trauma injury could be apportioned between two successive insurers of a single employer. It distinguished Willioms as dealing only with the limitations issue, but expressly overruled Okla. Petroleum Workers' Compensation Association v. Mid-Continent Casualty Co., 1994 OK CIV APP 107, 887 P.2d 335, which had applied the "awareness" doctrine. The Court stated "cumulative trauma injuries are no longer governed by this doctrine," because the doctrine was abrogated by the 1985 amendment to § 48 allowing claims for cumulative trauma to be filed within two years of "the date of last trauma or hazardous exposure." The Court concluded cumulative trauma injuries could, therefore, be apportioned between successive insurers. Polston, 964 P.2d at 212.

T9 In applying the same rationale to the instant case, we conclude the trial court was not bound to treat Claimant's post-Jjoint petition aggravation of her condition as a single injury with the previously compensated injury. Furthermore, we note Claimant performed two different jobs in sequence with Employer, sewing and packing. Even if the awareness doctrine still applied for any reason, awareness of cumulative trauma from sewing would not serve as awareness of cumulative trauma from packing. For these reasons, the trial court did not err in treating Claimant's injury from cumulative trauma occurring after her joint petition as aggravation of a pre-existing condition, and the panel did not err in affirming the trial court's judgment.

T10 Accordingly, the order of the three-judge panel of the Workers' Compensation Court affirming the trial court's judgment which awarded temporary total disability benefits to Claimant is SUSTAINED.

ADAMS, J., and JOPLIN, J., concur.

      . The dissenting member of the three-judge panel also cited Williams.


source: Caselaw Access Project

author: RUSSON, Associate Chief Justice:

license: Public Domain

text:
    2000 UT 66
    Edward ESQUIVEL, deceased, Norma Esquivel, Richard Esquivel, Angel Esquivel, Edica Esquivel, and Ofelia Herrera, Petitioners, v. LABOR COMMISSION OF UTAH, Redd Roofing & Construction Company, and CNA Insurance Company, Respondents.
    No. 990250.
    Supreme Court of Utah.
    Aug. 15, 2000.

      Robert B. Sykes, Ron J. Kramer, Salt Lake City, for petitioners.
    Alan Hennebold, Salt Lake City, for Labor Commission.
    Theodore E. Kanell, Robert C. Olsen, Stephen P. Horvat, Salt Lake City, for Redd Roofing and CNA Insurance.
    David W. Parker, Salt Lake City, for ami-cus Utah Trial Lawyers Association.
   ON CERTIORARI TO THE UTAH COURT OF APPEALS

RUSSON, Associate Chief Justice:

T1 On writ of certiorari, petitioners seek review of the Utah Court of Appeals' decision to affirm the Utah Labor Commission Appeals Board order. The appeals board held that a third-party judgment obtained by petitioners was to be entirely disbursed to offset the future workers' compensation obligations of Redd Roofing and Construction Company ("Redd Roofing") and CNA Insurance Company ("CCNA"), See Esquivel v. Labor Comm'n, 1999 UT App 9, 973 P.2d 440. We reverse in part and affirm in part.

BACKGROUND

T2 Edward Esquivel was employed by Redd Roofing in 1998. On April 26, 1998, Esquivel sustained a fatal injury in an accident arising out of and in the course of his employment while working at the Freeport Center in Clearfield, Utah. While operating a roof sweeper, Esquivel fell from one roof onto and through another roof. He was rushed to LDS Hospital but died that night. Soon thereafter, Esquivel's heirs (the "Es-quivels") filed for and received death benefits from Redd Roofing pursuant to the Utah Workers' Compensation Act. The benefits were paid by CNA, Redd Roofing's insurer.

13 Subsequently, the Esquivels filed a wrongful death suit against the Freeport Center. That claim was settled for $375,000 in March of 1994. As a result of the settlement, the Esquivels, Redd Roofing, and CNA entered into an agreement stipulating that the Esquivels reimburse CNA $8268.84 to satisfy CNA's lien for all workers' compensation death and dependency benefits accrued to that point. In addition, as a part of the agreement, CNA reduced benefit payments to the Esquivels from $341 per week to $205 per week for the benefit period remaining under the workers' compensation act. The $205 per week would also be the basis for determining all future workers' compensation for which the Esquivels might be entitled.

T4 In 1995, the Esquivels filed another third-party suit. This wrongful death suit was against the maker of the roof sweeper, Gravely International ("Gravely"). The case was tried, and the jury determined the total damages to be $814,029. Redd Roofing, Es-quivel's employer, was apportioned 50% of the fault, Gravely was apportioned 25%, and Esquivel himself was apportioned 25% of the fault. However, pursuant to the Utah Liability Reform Act and the Utah Workers Compensation Act, the Esquivels could not recover for the apportionment of fault attributed to Esquivel himself or his employer. Therefore, the final judgment awarded to the Esquivels was $203,507.25. Attorney fees were $81,402.90 and costs were $53,596.38, leaving $68,507.97 to be disbursed. It is this disbursement that is at issue in the instant case.

T5 Due to the judgment awarded to the Esquivels, CNA discontinued the $205 weekly workers' compensation payments as of April 1, 1996. Thereafter, the Esquivels filed an application for hearing before the Industrial Commission requesting review of CNA's termination of benefit payments. In response, Redd Roofing and CNA claimed that section 35-1-62 of the Utah Code provided that the judgment awarded to the Esquivels relieved CNA from paying further benefits. Redd Roofing and CNA contended that under the statute, CNA was entitled to reimbursement for payments made since the ear-Hier settlement and CNA was further entitled to relief from paying any future benefits. The payments CNA had made since the earlier settlement totaled $21,320.

T6 The Industrial Commission issued its findings of fact and conclusions of law on February 7, 1997. The commission accepted the Esquivels' formula for calculating the disbursement under section 35-1-62(5), concluding that the Esquivels were entitled to keep the entire $68,507.97, and that CNA was not entitled to any reimbursement or credit against future payments. Thus, CNA was ordered to continue making the weekly $205 payments to the Esquivels.

T 7 Redd Roofing and CNA moved to have the order reviewed, arguing that the $68,507.97 should be credited against the future workers' compensation payments owed by CNA to the Esquivels and that those obligations should be discounted to present value. Furthermore, CNA waived its claim to reimbursement for the $21,320 in benefits paid prior to April 1, 1996, on condition that the $68,507.97 be paid to offset future payments in accordance with the statute.

18 In July 1997, the Utah Legislature replaced the Industrial Commission with the Utah Labor Commission. This matter was then assigned to the Utah Labor Commission Appeals Board for review. On January 14, 1998, the appeals board reversed the earlier decision of the commission and allowed CNA to apply the full $68,507.97 against its liability for future workers' compensation benefits. CNA did not have to resume benefit payments until the $68,507.97 had been fully offset. Moreover, CNA could use the present value amount of $83,000, using an 8% discount rate, as its Hability for future benefits.

T9 The Esquivels petitioned the Utah Court of Appeals to review the board's decision. The court of appeals affirmed the decision of the appeals board. This court then granted the Esquivels' petition for writ of certiorari to review the court of appeals action.

"110 The Esquivels allege four issues before this court: (1) that the court of appeals should have used a correction-of-error standard in reviewing the decision of the commission appeals board; (2) that the court of appeals erred in affirming the appeals board's interpretation of the statute for disbursement of proceeds from third-party tort actions; (8) that the court of appeals erred by deciding that the Esquivels had waived their right to challenge the appeals board's order allowing CNA to discount future workers' compensation benefits payable to the Esquivels; and (4) that the appeals board erroneously allowed CNA to discount its future workers' compensation benefits.

STANDARD OF REVIEW

¶ 11 "When exercising our certiorari jurisdiction, we review the decision of the court of appeals, not of the [ageney]." Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997). The court of appeals' decision is reviewed for correctness, and its conclusions of law are afforded no deference. See Bear River Mut. Ins. Co. v. Wall, 1999 UT 33, ¶ 4, 978 P.2d 460.

ANALYSIS

I. APPROPRIATE STANDARD OF REVIEW

{ 12 The Esquivels argue that the court of appeals erroneously afforded deference to the appeals board's decision. Therefore, we must first determine whether the court of appeals applied the appropriate standard of review to the agency's decision. See Newspaper Agency Corp. v. Auditing Div., 938 P.2d 266, 267 (Utah 1997). In this case, the appellate court applied what it termed an intermediate standard of review whereby it upheld the appeals board's statutory interpretation absent a finding of unreasonableness. See Esquivel v. Labor Comm'n, 1999 UT App 9, ¶ 11, 973 P.2d 440.

18 However, "[mJatters of statutory construction are questions of law that are reviewed for correctness." Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997); see also Jeffs v. Stubbs, 970 P.2d 1234, 1240 (Utah 1998); Pappas v. Richfield City, 962 P.2d 63, 65 (Utah 1998); Facer v. Allen, 958 P.2d 919, 921 (Utah 1998). In addition, "[where the issue is a question of law, ... appellate review gives no deference to the trial judge's or agency's determination, because the appellate court has 'the power and duty to say what the law is and to ensure that it is uniform throughout the jurisdiction'" Drake v. Industrial Comm'n, 939 P.2d 177, 181 (Utah 1997) (internal citation omitted).

$14 An exception to this general rule exists if the legislature has either explicitly or implicitly granted discretion to the agency. However, absent a grant of discretion, an agency's interpretation or application of statutory terms should be reviewed under the correction-of-error standard. See Morton Int'l, Inc. v. Auditing Div., 814 P.2d 581, 588 (Utah 1991). Additionally, if the "legislative intent concerning the specific question at issue can be derived through traditional methods of statutory construction, the agency's interpretation will be granted no deference and the statute will be interpreted in accord with its legislative intent." Id. at 589.

T15 In the case before us, the court of appeals determined that the appeals board had been granted broad discretion by Utah Code Ann. § 84A-1-801 (1997), which provides: "The commission has the duty and the full power, jurisdiction, and authority to determine the facts and apply the law in this chapter." Esquivel, 1999 UT App at ¶ 11, 973 P.2d 440.

¶ 16 However, "an agency's statutory construction should only be given deference when there is a grant of discretion to the agency concerning the language in question, either expressly made in the statute or implied from the statutory language." Morton, 814 P.2d at 589; see also Elk Lodges No. 719 & No. 2021 v. Department of Alcoholic Beverage Control, 905 P.2d 1189, 1193 (Utah 1995) (noting that intermediate deference will be given if legislature has expressly or impliedly given discretion to apply or interpret that law but if no explicit grant of discretion by legislature, issues of statutory construction are reviewed for correctness); Hales Sand & Gravel, Inc. v. Audit Div., 842 P.2d 887, 890 n. 3 (Utah 1992) (same); Zissi v. State Tax Comm'n, 842 P.2d 848, 853 n. 2 (Utah 1992) (same); Judge Norman H. Jackson, Utah Standards of Appellate Review-Revised, 12 Utah Bar J. 8, 46-47, 49 (1999).

117 We have never previously viewed Utah Code Ann. § 34A-1-801 as a broad grant of discretion to the Labor Commission. In fact, we have, upon numerous occasions since this statute became effective July 1, 1997, reviewed commission decisions concerning questions of law under the correctness standard. See, eg., Vigos v. Mountainland Builders, Inc., 2000 UT 2, ¶ 7, 993 P.2d 207 (using correction-of-error standard to review Industrial Commission's interpretation of Utah Code Aun. § 85-1-99 on writ of certio-rari to court of appeals); Christensen v. Spanish Fork City, 2000 UT 18, ¶ 6, 994 P.2d 1252 (companion case of Vigos that reviewed Labor Commission's interpretation of statute on certification from court of appeals); Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 259 (Utah 1998) (reviewing Industrial Commission's statutory construction for correctness on writ of certiorari to court of appeals); Brown & Root Indus. Serv. v. Industrial Comm'n, 947 P.2d 671, 675 (Utah 1997) (using correction-of-error standard to review Industrial Commission's statutory construction on writ of certiorari to court of appeals).

118 Neither the Labor Commission Appeals Board nor the court of appeals has established that section 34A-1-801 should now be interpreted differently. We are not convinced, and do not conclude, that section 34A-1-301 provides a general grant of discretion to the Labor Commission for statutory interpretation.

119 Accordingly, the specific issue presented in the case before us, disbursement of a third-party recovery, can be determined from the terms of the statute using traditional methods of statutory construction. Furthermore, the statutory terms of section 34A-2-106(5) are of a specific nature and do not connote a general grant of discretion. Therefore, the court of appeals erred in granting deference to the Labor Commission Appeals Board for interpretation of the statute.

II. STATUTORY CONSTRUCTION

120 On appeal, the parties present two opposing interpretations of Utah Code Ann. § 34A-2-106. The Esquivels argue that the apportionment of attorney fees and costs should be applied to the recovery first. Additionally, they encourage us to adopt a formula that uses the net recovery rather than the gross recovery as the basis for determining the insurance carrier's apportionment of expenses.

T21 Alternatively, Redd Roofing, CNA, and the Labor Commission argue that the insurer should have priority, and therefore, the balance of the recovery should be completely used to offset CNA's future benefit obligations. Our primary goal in interpreting statutes, however, is to give effect to the legislature's intent based on the purpose of the statute. See Evans v. State, 963 P.2d 177, 184 (Utah 1998). We therefore look first to the plain language of section 84A-2-106. See id.

122 Disbursement of proceeds recovered in a third-party tort action due to injuries or death arising from a work-related accident is controlled by section 34A-2-106(5) of the Utah Code. This section provides in pertinent part:

(5) If any recovery is obtained against a third person, it shall be disbursed in accordance with Subsections (5)(a) through (c).
(a) The reasonable expense of the action, including attorneys' fees, shall be paid and charged proportionately against the parties as their interests may appear. Any fee chargeable to the employer or carrier is to be a credit upon any fee payable by the injured employee or, in the case of death, by the dependents, for any recovery had against the third party.
(c) The balance shall be paid to the injured employee, or the employee's heirs in case of death, to be applied to reduce or satisfy in full any obligation thereafter accruing against the person liable for compensation.

Utah Code Ann. § 34A-2-106(5) (1997).

128 Double recovery for injuries or death sustained in conjunction with an accident covered by workers' compensation is not permitted. See Worthen v. Shurtleff & Andrews, Inc., 19 Utah 2d 80, 426 P.2d 223, 225 (1967); see also Allstate Ins. Co. v. Bliss, 725 P.2d 1330, 1334 (Utah 1986); 82 Am.Jur.2d Workers' Compensation § 110 (1992). Therefore, a third-party recovery must reimburse the employer or insurer for workers' compensation sums already paid as well as offset for future liability of sums owed. See Worthen, 426 P.2d at 225. However, the employer or insurer must first bear a proportionate share of the expenses for obtaining the recovery. See id.; see also Prettyman v. State Dep't of Fin., 27 Utah 2d. 333, 496 P.2d 89, 91 (1972). Section 84A-2-106(5) ensures this equitable arrangement.

124 We will now apply the statute as it reads to show how each step should have been applied in the instant case.

1 25 The plain language of the statute requires that if any recovery is obtained, it must be disbursed in accordance with subsection (5)(a) through (c). See Utah Code Aun. § 34A-2-106(5). That language indicates that it is the gross recovery being disbursed because no deductions have been allowed to this point. Expenses have not yet been paid or accounted for. Therefore, we begin with the gross recovery of $203,507.25.

1 26 Next, section 84A-2-106(5)(a) requires that "[the reasonable expense of the action, including attorneys' fees, shall be paid and charged proportionately against the parties as their interests may appear." Because CNA has waived its interest in past payments of $21,820, this figure should not be included in CNA's total interest. Instead, CNA's total interest should be based only on its discounted future liability. Therefore, CNA's interest is its discounted future liability divided by the total recovery of 208, 507.25.

27 The attorney fees are $81,402.90, and the costs are $58,596.38. Therefore, the expenses are $134,999.28. If we assume that the expenses are reasonable, then the statute requires CNA to pay the percentage of CNA's interest of $134,999.28.

128 The statute next requires that "[alny fee chargeable to [CNA] ... be a credit upon any fee payable by [the Esquivels] for any recovery had against [Gravely]." Id. § 34A-2-106(5)(a). Therefore, the fee chargeable to CNA is to be a credit upon the $184,999.28 fee payable by the Esquivels for the recovery of $203,507.25 had against Gravely.

129 The Esquivels paid the entire $134,999.28 for expenses out of the $203,507.25 judgment, leaving $68,507.97. The Esquivels are now entitled to reimbursement for CNA's proportionate share of reasonable expenses. Because CNA has not paid its proportionate share at this point, there is a credit owed to the Esquivels. This results in a total balance-part in the form of cash and part in the form of a eredit owed.

130 Next, CNA is entitled to reimbursement for payments of $21,820 already made. However, CNA waived any right to this reimbursement, and therefore, we skip step (b) and move on to step (c).

181 Step (c) provides that "[the balance shall be paid to [the Esquivels] to be applied to reduce or satisfy in full any obligation thereafter accruing against [CNA]." Id. § 34A~-2-106(5)(c). Therefore, the total balance consisting of $68,507.97 (which was left after the Esquivels paid all the expenses) plus the credit CNA owes the Esquivels for its share of expenses should be paid to the Esquivels. However, because a double recovery is not permitted, the Esquivels must apply this total balance to reduce or satisfy CNA's future obligation.

T32 Therefore, if the total balance is greater than CNA's discounted future liability, then CNA's discounted future Hability is totally offset and CNA has no further obligation to the Esquivels However, if the total balance is not greater than CNA's discounted future liability, CNA must resume payments once the amount of the total balance has been offset and then continue until such time as the youngest child reaches eighteen (January 5, 2008).

III. WAIVER OF RIGHT TO CHALLENGE DISCOUNT

{383 In their motion for review of the Industrial Commission's order, Redd Roofing and CNA requested that their liability for future payments to the Esquivels be discounted to present value according to commission regulations. The Esquivels made no objection to this request in their response to the motion for review of the commission's order. The appeals board granted the request made by Redd Roofing and CNA and allowed a present value discount rate of 8% to be applied to the liability for future benefits,. Therefore, the appeals board determined that CNA's future liability should be $83,000.

134 The Esquivels did not raise an objection to the request made by Redd Roofing and CNA to discount the liability for future benefits until the matter was brought before the Utah Court of Appeals on review. See Esquivel v. Labor Comm'n, 1999 UT App 9, ¶¶ 21-23, 973 P.2d 440. The general rule is that objections or questions not raised or urged in the agency proceeding are considered waived and will not be considered by a court on review. See Brown & Root Indus. Serv. v. Industrial Comm'n, 947 P.2d 671, 677 (Utah 1997); Alvin G. Rhodes Pump Sales v. Industrial Comm'n, 681 P.2d 1244, 1249 (Utah 1984); see also 2 Am.Jur.2d Administrative Law § 578 (1994), 73A C.J.S. Public Administrative Low § 191 (1988). There are some exceptions to this rule, but they do not apply to this case. See 73A C.J.S. Public Administrative Law § 191. Therefore, we affirm the court of appeals' decision that the Esquivels waived their right to appeal the issue of present value discounting.

135 Because the Esquivels have waived their right to appeal the appeals board's decision concerning discounting, we do not reach the Esquivels' argument that the appeals board abused its discretion in allowing the discount.

CONCLUSION

136 The court of appeals erred in deferring to the Labor Commission Appeals Board's interpretation of the statute. In light of the foregoing, we hold that the appeals board did not correctly interpret the statute. We therefore reverse the court of appeals and remand to the Utah Labor Commission for proceedings consistent with this opinion. In addition, we affirm the court of appeals' decision that the Esquivels waived their right to appeal the appeals board's decision concerning discounting.

137 Chief Justice HOWE, Justice DURHAM, Justice DURRANT, and Justice WILKINS concur in Associate Chief Justice RUSSON's opinion.

      . This settlement is not at issue and is provided only for background information.

      . See Utah Code Ann. § 78-27-38(4)(a), (b) (Supp.1999) (providing that fault of employer and fault of person seeking recovery be used to accurately determine proportionate fault).

      . See id. § (Supp.1999) (providing that workers' compensation is exclusive remedy against employer).

      . The accident occurred in 1993, and at that time, section 35-1-~62(5) of the Utah Code read somewhat differently than it did after it was amended in 1994. However, the award from Gravely was not ordered until April 1996. Nevertheless, Redd Roofing and CNA argued in their reply to the Esquivels' opposition to the motion for review before the Industrial Commission that because CNA was not seeking reimbursement, there was no need to determine which version of the statute governed. "Either way, the provisions regarding the right of the insurer to an offset of the balance are the same." Because it is only the section dealing with reimbursement that differs between the pre- and post-amendment statute, we are able to apply the post-1994 amended version in this case. Therefore, we do not need to determine at this time whether the 1994 amendment provides substantive rights which must not be applied to a claim arising out of a prior death.
      Additionally, the 1994 amendment caused section 35-1-62(5) to read almost identically to the current section 34A-2-106(5). In fact, as of July 1, 1997, section 35-1-62(5) was renumbered to section 34A-2-106(5) with only stylistic and statutory reference changes. Therefore, for simplicity, we can apply Utah Code Ann. § 34A-2-106(5) to the recovery from Gravely for the narrow purpose of this decision.

      . See part III for a discussion of the appeals board's decision to apply present value discounting to CNA's liability for future benefits As noted by the appeals board, CNA's future liability is for $205 per week from April 1, 1996, until January 5, 2008 (when the youngest child turns eighteen). This is the figure to which the commission should apply present value discounting, which can then be used to determine CNA's total interest.

      . (CNA's interest) = (CNA's discounted future Hability) + $203,507.25 x 100.

      . (CNA's interest) x $134,999.28.

      . (CNA's interest) x $134,999.28.

      . Step (b) of section 34A-2-106(5) provides for reimbursement to the person liable for the compensation payments for past payments already made to the beneficiaries The proportionate share of costs and attorney fees are accounted for as well as consideration for fault of the employer.

      . (CNA's interest) x $134,999.28.


text:
    2000 UT 58
    Peter LYSENKO, Plaintiff and Petitioner, v. Mitchell J. SAWAYA and Lillie Marie Sawaya, Defendants and Respondents.
    No. 990240.
    Supreme Court of Utah.
    July 11, 2000.

      Leslie W. Slaugh, Provo, for plaintiff.
    Stephen B. Mitchell, Salt Lake City, for defendants.
   ON CERTIORARI TO THE UTAH COURT OF APPEALS

RUSSON, Associate Chief Justice:

{1 On writ of certiorari, plaintiff Peter Lysenko seeks review of the court of appeals' decision affirming the trial court's award of damages to Lysenko for conversion. Lysenko claims that the trial court applied an incorrect measure of damages and that the court of appeals improperly affirmed.

BACKGROUND

T2 In May 1978, defendants Mitchell J. Sawaya and Lillie Marie Sawaya (the "Sawa-yas") leased property (the "premises") in Orem, Utah, to the Burger King Corporation ("Burger King") on which Burger King intended to construct a restaurant building. The lease term was for fifteen years. Under the lease, any additions or improvements that Burger King made to the premises would become the property of the Sawayas if not removed within fifteen days of termination of the lease.

3 On February 6, 1979, after constructing a restaurant building on the premises, Burger King entered into a sublease agreement with plaintiff Peter Lysenko,. The sublease permitted Lysenko to operate a restaurant in accordance with a franchise agreement into which he entered with Burger King. The sublease provided that any personal property installed on the premises by Lysenko would remain his property after the sublease ended. Lysenko purchased and installed the necessary equipment and opened for business.

{4 Lysenko's purchase of equipment was financed by a loan from Central Bank and Trust ("Central Bank"). Central Bank filed a UCC-1 financing statement in connection with the loan to Lysenko. The collateral listed in the financing statement included the restaurant equipment, fixtures, furniture, signs, improvements, accessories, accessions, and additions.

T5 On February 22, 1992, Lysenko and Burger King executed an agreement in which Burger King agreed to sell, and Lysenko to purchase, the restaurant building. The agreement provided that in case of default, the nondefaulting party could terminate the agreement if the defaulting party did not cure the default within five days of receiving notice of default. The agreement also stated that Burger King's interest in the premises was still subject to Burger King's lease with the Sawayas.

1 6 In February 1998, after Lysenko failed to cure monetary defaults to Burger King, Burger King terminated Lysenko's franchise agreement, sublease of the premises, and agreement for sale of the restaurant building. Lysenko closed the restaurant in April 1998.

17 Before the fifteen-year term of the Sawayas' lease to Burger King expired on February 6, 1994, the Sawayas informed Central Bank, Burger King, and Lysenko that all improvements, personal property, and equipment were to be removed from the premises. The Sawayas warned that any improvements, personal property, or equipment not removed within fifteen days after February 6, 1994, would be forfeited to the Sawayas. Burger King informed the Sawa-yas that at that time, Lysenko's claim to the equipment was subject to Central Bank's and Burger King's interests, and as a result, Lysenko was in no position to remove his equipment from the premises. When Lysenko then requested permission to remove his equipment from the premises, the Sawayas refused.

T8 Meanwhile, Lysenko arranged for one of his former employees, Curtis Loos!i, to purchase Central Bank's security interest in the restaurant equipment. On February 8, 1994, Central Bank sold its security interest in the equipment to Loosli, who then conveyed his interest to Lysenko,. Lysenko never successfully entered the premises to remove the equipment after the lease terminated.

T9 Thereafter, the Sawayas leased the premises to another tenant, HB Properties, which began operating a restaurant on the site in September 1994. HB Properties discarded some of Lysenko's equipment that remained on the premises but retained and used most of it.

T{10 Lysenko filed an action against the Sawayas, arguing that they had unlawfully prevented him from removing his equipment, and in fact had converted the equipment. Lysenko sought either possession of the equipment or its equivalent value. At trial, Lysenko's expert witness testified regarding two methods for determining the value of the equipment that remained in the restaurant: (1) "in-place" value, measuring the value of the equipment as a going concern; and (2) "salvage" value, measuring the value of the equipment if it were removed from the restaurant and sold. The expert stated that the value of the equipment if left in place was $35,185 and the value of the equipment if removed and sold was $10,980. Lysenko urged the trial court to award damages based on the in-place value of the equipment. The Sawayas did not contest the expert's figures at trial but argued that Lysenko was not entitled to any damages. In the alternative, the Sawayas contended that the salvage value of the equipment was the proper measure of damages.

[ 11 The court granted judgment to Lysenko. In its findings of fact and conclusions of law, the court stated that Central Bank had obtained a perfected security interest in the equipment and that its perfected security interest was properly assigned to Loosli and then to Lysenko. Moreover, Lysenko's perfected security interest entitled him to possession of the equipment, and by interfering with Lysenko's recovery attempts and receiving benefit from the continued use of the equipment, the Sawayas had converted the equipment.

12 The court determined, from the testimony of Lysenko's expert, that the value of the equipment if left in place in the restaurant was $85,185 and the value of the equipment if removed and sold was $10,980. Reasoning that the objective of damages for conversion is to compensate the plaintiff for "actual losses," the court concluded that Lysenko was entitled to $10,980, the salvage value of the equipment if it were removed from the restaurant and sold. In addition, the court determined that the value of Lysenko's equipment that HB Properties had discarded was $2000 and thus awarded a total of $12,980 to Lysenko as damages for conversion, plus prejudgment interest and costs.

113 Lysenko appealed to this court, and we transferred the matter to the court of appeals pursuant to Utah Code Ann. § 78-2-2(4) (1996). Before that court, Lysenko argued that he was entitled to the in-place value of the equipment because the equipment was still in place and in use at the restaurant. The court of appeals disagreed and affirmed the trial court's decision to award salvage value. See Lysenko v. Sawaya, 1999 UT App. 031, ¶¶ 10-12, 973 P.2d 445. The court of appeals stated that "because the adequacy of a damage award is a factual question, we will not reverse the trial court's findings unless they are clearly erroneous," id. at ¶ 6, 973 P.2d 445, and then concluded that Lysenko failed to show that 'the trial court's decision to award salvage value rather than in-place value was clearly erroneous, see id. at ¶ 12, 973 P.2d 445. One judge dissented, contending that the proper measure of damages presented a question of law and that in-place value should have been awarded because the equipment was still in place and in use at the restaurant. See id. at ¶¶ 18-21, 973 P.2d 445 (Orme, J., dissenting).

T 14 Before this court on certiorari, Lysenko contends that the court of appeals applied an incorrect standard of review to the trial court's decision to award salvage value. He argues that the trial court's decision involved a legal question reviewable for correctness, and that since the equipment was still in place and in use, the proper measure of damages was in-place value.

ANALYSIS

¶ 15 On certiorari, we review the decision of the court of appeals, not of the trial court. See Esquivel v. Labor Comm'n, 2000 UT 66, ¶ 11, 7 P.3d 777. Initially, we examine whether the court of appeals applied the correct standard of review to the trial court's decision to award the salvage value of Lysenko's equipment as damages for conversion. The court of appeals stated that Lysenko's request on appeal for in-place value instead of salvage value involved a dispute as to the "adequacy" of the trial court's damage award, which the court of appeals deemed a factual determination entitled to deference on appeal and not reversible absent clear error. See Lysenko, 1999 UT App. 031 at ¶ 6, 973 P.2d 445.

¶ 16 The court of appeals correctly noted that "the adequacy of a damage award is a factual question." Id. (citing In re Knickerbocker, 912 P.2d 969, 981 (Utah 1996)). However, the adequacy of the trial court's damage award was not at issue before the court of appeals. Indeed, Lysenko proffered evidence at trial, through his own expert, of the proper amount of damages awardable under either of two measures of damages, and the trial court's findings of fact incorporated both amounts. The question properly before the court of appeals was which measure of damages was appropriate, not the adequacy of the trial court's factual findings underlying the damage award. We therefore must determine whether the trial court's choice between the two measures of damages-in-place value and salvage value-involved a question of law or fact.

117 Questions of fact "are generally regarded as entailing the empirical, such as things, events, actions, or conditions happening, existing, or taking place, as well as the subjective, such as state of mind." State v. Pena, 869 P.2d 932, 935 (Utah 1994). Legal questions, in contrast, "are defined as those which are not of fact but are essentially of rules or principles uniformly applied to persons of similar qualities and status in similar circumstances." Id. Thus, to determine whether the measure of damages in the instant case presented the trial court with a legal question, as Lysenko argues, we must determine whether there is a "rule[ ] or principle[ ]" governing the measure of damages that can be "uniformly applied to persons of similar qualities and status in similar cireum-stances." Id.

¶ 18 As a general rule, the measure of damages for conversion is "the value of the property at the time of the conversion, plus interest." Broadwater v. Old Republic Sur., 854 P.2d 527, 531 (Utah 1993). In McKeon v. Williams, 312 Or. 322, 822 P.2d 699, 699-701 (1991), which, like the case before us, dealt with a landlord's conversion of a tenant's personal property that remained on the premises, it was held that the appropriate method for determining the value of property at the time of conversion depended upon whether the tenant had a right to possess the premises when the conversion occurred. In that case, tenants leased a building for the purpose of operating a restaurant. Before their lease terminated, the tenants closed the restaurant and eventually stopped paying rent to the landlord, who then filed an action for restitution of the building. The court determined that the tenants' right to possess the premises had ended and ordered them to turn over the building to the landlord. Thereafter, the tenants requested permission from the landlord to remove their restaurant equipment, but the landlord denied their request. The landlord then leased the building to a new tenant who operated a restaurant on the premises using the same equipment.

{19 In an action that followed, the jury found that the landlord converted the tenants' equipment, and awarded damages to the tenants for the value of the converted equipment. The court instructed the jury that the proper measure of damages for conversion was the "fair market value of the property after removal from [the landlord's] premises." Id. at 700 (emphasis added). On appeal, the tenants argued that they were instead entitled to the in-place value of the equipment because the landlord leased the building to a new tenant who continued to use the equipment.

120 The McKeon court affirmed, noting that the important factual distinction to be made is when the conversion occurred. Examining rulings from other state courts, the McKeon court concluded in this regard:

1. If a landlord converts a tenant's on-premises personal property while a tenant has the right to possess the premises, the measure of damages is the "in-place" fair market value of the converted property.
2. If a landlord converts a tenant's personal property left on the premises after the tenant's right to possession has ended, the measure of damages is the fair market value that the property would have, if removed from the premises.

Id. at 701 (citing Stein v. McDonald, 149 So.2d 77, 78 (Fla.Ct.App.1963) (awarding removal value when tenant attempted to remove property after right to possess premises ended); Smyth v. Stoddard, 203 Ill. 424, 67 N.E. 980, 982 (1903) (affirming award of in-place value of tenants' property when landlord sold premises before lease term expired); Independence Flying Serv., Inc. v. Ailshire, 409 S.W.2d 628, 629 (Mo.1966) (awarding in-place value when landlord converted property before lease terminated); Z. Tanenbaum Son & Co. v. C. Ludwig Baumann & Co., 261 N.Y. 85, 184 N.E. 503, 504-05 (1933) (awarding removal value when personal property was converted after right to possess premises ended)).

{21 Leading treatises dictate the same method of measuring damages when a landlord converts a tenant's property that remains on the premises:

A landlord who refuses to permit a tenant to take his removable fixtures at the end of the term is liable to the tenant for the value of the fixtures as used property, ie., in their dismembered state, rather than their value in place, because this is their maximum value to tenant if removal had been permitted.

2 Milton R. Friedman, Friedman on Leases § 24.2, at 1424 (dth ed.1997).

[Wlhen the property so in place can no longer be there used by the owner and he is subject to summary removal its value will be estimated in case of conversion with reference to these facts; it will be estimated with reference to the condition in which the property will be when removed or as subject to the obligation or necessity of removal.

4 J.G. Sutherland, A Treatise on the Law of Damages § 1114, at 4231 (4th ed.1916), quoted in McKeon, 822 P.2d at 702.

122 This rule serves the fundamental purpose of compensatory damages, which is to place the plaintiff in the same position as if the tort had not been committed. See Restatement (Second) of Torts $ 908 emt. a (1979). If, on the one hand, the conversion occurs while the plaintiff is still entitled to possess the premises and use the personal property in place (or if the plaintiff is entitled to assign or sublet the premises, to sell the property in place to the assignee or subles-see), then the plaintiff is entitled to the value of the property in place. If, on the other hand, the plaintiff's right to occupy the premises has ended, such as after the termination of a lease, the plaintiff no longer possesses the right to use the personal property in place, but is entitled only to remove the property and sell it.

¶ 23 This rule of damages when a landlord converts a tenant's property left on the premises is "uniformly applifeable] to persons of similar qualities and status in similar cireumstances." State v. Pena, 869 P.2d 932, 935 (Utah 1994). As a result, the trial court's determination of the appropriate measure of damages in this case involved a legal determination, not a factual determination as the court of appeals concluded. The court of appeals thus erred when it applied a clearly erroneous standard of review to the trial court's conclusion of law when a correction-of-error standard was appropriate.

¶ 24 The court of appeals nevertheless reached the correct result. At the time of the conversion, Lysenko was entitled only to remove the equipment from the premises because his sublease had been terminated. Therefore, the correct measure of damages was the value that Lysenko's equipment would have if removed. Accordingly, the court of appeals correctly affirmed the trial court's decision to award the equipment's salvage value. We thus affirm the court of appeals as to the result it reached but for the reasons stated in this opinion.

[ 25 Chief Justice HOWE, Justice DURHAM, Justice DURRANT, and Judge ALLPHIN concur in Associate Chief Justice RUSSON's opinion.

T 26 Having disqualified himself, Justice WILKINS does not participate herein; District Judge MICHAEL G. ALLPHIN sat.

      . Lysenko's former employee, Loosli, originally instituted this action. On October 3, 1996, prior to trial, Lysenko was substituted for Loosli as plaintiff by stipulation of the parties and order of the court.

      . According to traditional usage, "salvage" value (also referred to as "scrap" value) describes [tlhe value of an asset after it has become useless to the owner"" or "the amount expected to be obtained when a fixed asset is disposed of at the end of its useful life." Black's Law Dictionary 1550 (7th ed.1999). The term "salvage" value is a misnomer in the instant case because Lysenko's expert employed the term to describe the fair market value that Lysenko's undamaged, usable equipment would have if removed from the premises. Nonetheless, to avoid confusion, we will use the term "salvage" value in this opinion for the limited purpose of describing the valuation measure offered by Lysenko and ultimately adopted by the trial court.

      . Lysenko did not appeal as to the trial court's award of $2000 for the equipment that HB Properties discarded.


author: BILLINGS, Judge: BENCH, Judge

text:
    2000 Utah Ct. App. 201
    SALT LAKE CITY, Plaintiff and Appellee, v. Keith ROBERTS, Defendant and Appellant.
    No. 990876-CA.
    Court of Appeals of Utah.
    June 29, 2000.

      W. Andrew McCullough, Orem, for Appellant.
    Richard W. Daynes, Salt Lake City Prosecutor's Office, Salt Lake City, for Appellee.
    Before Judges BENCH, BILLINGS, and ORME.
   OPINION

BILLINGS, Judge:

T1 Defendant appeals his conviction for disorderly conduct under Salt Lake City Code section 11.16.100. We affirm in part and remand with instructions.

FACTS

12 Two undercover Salt Lake City police officers followed defendant's car to a parking lot behind a bar because the woman he had picked up was a known prostitute. One officer testified that when they arrived, numerous patrons of the bar were arriving and leaving the parking lot, and that anyone could walk back to the area in the lot where the couple was parked, which was behind two flatbed trucks. He stated that the car was in an area that was "open to public view." However, to observe defendant and his companion without being spotted by them, the officers "parked in front of the bar so [defendant and his companion] couldn't see [the police] car and ... snuck around on foot and approached the car." One officer then crawled underneath one of the flatbed trucks to approach the car so he could not be seen. The officer testified that after emerging from under the flatbed truck he was standing "15 to 20 feet away." The officer stated, "I could see into the back window. She was sitting in the passenger seat turned toward him. I saw her lift her shirt, exposing her breasts. I saw the driver put his mouth to her breasts . and that's when I approached the car from the back." The officer further testified that the trucks "gave them a little bit of hiding room," that defendant and his companion were "somewhat hidden" behind the trucks, and that no member of the public would be likely to crawl underneath the truck to observe defendant's conduct. However, the officer repeatedly stated that a person could get to the area where defendant had parked without crawling under the truck.

T3 Following a bench trial, defendant was convicted of disorderly conduct under section 11.16.100 of the Salt Lake City Code.

ANALYSIS

I. City Ordinance

%4 Defendant first asserts the city ordinance under which he was convicted is invalid because it does not mirror the state statute governing lewdness. See Utah Code Ann. § 76-9-702 (1996). This is a question of law; thus, we review it for correctness. See State v. Anderson, 910 P.2d 1229, 1232 (Utah 1996). The Utah Supreme Court has held that ordinances passed by municipalities are valid unless they are inconsistent or conflict with state law. See Redwood Gym v. Salt Lake County Comm'n, 624 P.2d 1138, 1144 (Utah 1981); Salt Lake City v. Allred, 20 Utah 2d 298, 299, 437 P.2d 484, 435 (1968); see also Utah Code Ann. § 10-8-84 (1999). Municipal ordinances and state law are not inconsistent when they share a common purpose and are "closely related in subject matter." Allred, 487 P.2d at 487. Furthermore, a "municipal ordinance need not be identical to the controlling state statute to be consistent with it." Richfield City v. Walker, 790 P.2d 87, 90 (Utah Ct.App.1990). In this case, the fact that the language of the Salt Lake City ordinance does not mirror the state statute does not render the ordinance invalid. The common purpose of both the city ordi-nance and state law is to prohibit sexual behavior in places where the public may be affronted or offended. Compliance with the city ordinance does not preclude compliance with state law or vice versa. See Walker v. Union Pac. R.R. Co., 844 P.2d 335, 339-40 (Utah Ct.App.1992) (holding city ordinance preempted by state law because ordinance prohibited act specifically allowed under state law). Accordingly, we affirm the trial court's conclusion that Salt Lake City Code § 11.16.100 is valid as it does not conflict with state law.

IL "Sexual Conduct"

15 Defendant next argues that the facts do not support a finding that he "[eln-gage[d] in sexual conduct ... with another person," as prohibited by section 11.16.100(B) or "maldle an intentional exposure of his ... genitals, pubic area, buttocks or any portion of the areola and/or nipple of the female breast," as prohibited by section 11.16.100(C) We review the trial court's factual findings under a clearly erroneous standard. See State v. O'Brien, 959 P.2d 647, 648 (Utah Ct.App.1998).

16 We conclude the facts before the trial court were sufficient to show beyond a reasonable doubt that defendant "engaged in sexual conduct" within the meaning of the ordinance. The Salt Lake City Code defines "sexual conduct" as "human masturbation, sexual intercourse, or any touching of the covered or uncovered genitals, human female breast, pubic areas or buttocks of the human male or female, whether alone or between members of the same or opposite sex." Salt Lake City Code § 11.16.010. Undisputed trial testimony established that one of the arresting officers saw defendant parked in his car kissing the exposed breasts of the woman he was with and saw defendant's exposed genitals. This testimony sufficiently supported a finding of "sexual conduct."

III Place "Open to Public View"

T7 Finally, defendant argues that he was improperly convicted because he was not "in a place open to public view" when the sexual conduct occurred. See id. § 11.16.100. The trial court found defendant was "in a place open to public view" under the ordinance because defendant "was [in] a public parking lot" when the conduct took place. Defendant claims the district court's interpretation of the statutory language was in error. "Because a district court's interpretation of a statute is a legal question, we review its ruling for correctness." Jeffs v. Stubbs, 970 P.2d 1234, 1240 (Utah 1998).

T8 The relevant portion of the ordinance states: "It shall be unlawful for any person, while in a place open to public view, to willfully: ... B. Engage in sexual conduct, alone or with another person." Salt Lake City Code § 11.16.100. No Utah case has defined what constitutes "open to public view" under the ordinance. However, in addressing similar situations, other jurisdictions have emphasized the fact-intensive nature of the inquiry. For example, the Appellate Court of Illinois held that consensual sexual activity in a city park

near the lagoon, at seven o'clock in the morning on the first of September, on a bright, sunshiny day, where people walked their dogs and jogged (as the defendant himself was doing), and where the defendant not only could have been but in fact was seen by a police officer riding in an automobile on an access road, was indeed [in] a "public place" in that there was a high probability that the deviate conduct would be viewed by other members of the public.

State v. Baus, 16 Ill.App.3d 136, 305 N.E.2d 592, 593 (1973). In contrast, in a case involy-ing sexual conduct occurring in a parked vehicle "in a turnaround area opposite a residence" at 3:30 am., where "the car was stationed between two street lights," where "no persons other than the police officers saw [defendant,] and they themselves would not have seen him had they not followed him from Maunakea Street," and where "{nlo evidence of any pedestrian or vehicular traffic on the lane was offered," the court held "it was improbable that [defendant's] acts would be observed by members of the public" and reversed defendant's conviction. State v. Broad, 61 Haw. 187, 600 P.2d 1379, 1379-82 (1979).

19 As the Court of Appeals of New York pointed out, "it is necessary to interpret and apply the statute here in a manner that comports with its purpose." People v. McNamara, 78 N.Y.2d 626, 578 N.Y.S.2d 476, 585 N.E.2d 788, 793 (1991) (interpreting term "public place"). "That a member of the public may pass by is certainly part of the essence of a public place, and the harm to such a person's sensibilities is precisely that aimed at by the statute. Conversely, where no such harm is likely, the statute is not violated." Id. Thus, we agree with the New York court that "[slexual acts performed in parked cars ... may be prosecuted [under the ordinance] when ... the objective circumstances establish that the lewd acts committed there can and likely would be seen by a casual passerby." Id.

T10 Defendant contends the fact that he parked his car at night behind flatbed trucks in the rear area of the parking lot, which was bordered by a two-story cement wall, a chain-link fence, and a closed business, does not support the trial court's conclusion that he was "in a place open to public view,"

T11 In this case, the trial court concluded that the parking lot behind the bar was "open to public view" under the ordinance. The court apparently relied upon the fact that the conduct took place in a public parking lot, stating at trial, "I think the problem is that the language [of the ordinance] is tough to deal with, but I'm not going to struggle with it too much. It was a public parking lot, in my view, it was [therefore} open to public view." We conclude the trial judge applied an incorrect legal standard equating a public parking lot to the statutorily required "place open to public view." A public parking lot, such as the one behind the bar where defendant's conduct occurred, may or may not be a "place open to public view" for purposes of the ordinance. This determination turns on the facts of each case. The key inquiry is whether the conduct is likely to be observed by a member of the public. See Broad, 600 P.2d at 1381 (quoting State v. Rocker, 52 Haw. 336, 475 P.2d 684, 688 (1970) (stating that "the trier of fact is justified in finding the place public if the exposure is such that it is likely to be seen by a number of casual observers")

{ 12 The record indicates that the officers had followed defendant's car to the bar; they had not merely passed by and spotted the activity. One officer saw defendant kissing the exposed breast of his companion, but only after the officer crawled under the flatbed truck, which the officer admitted would be an unusual thing for a casual passerby or bar patron to do. However, the officers testified that numerous patrons were arriving and leaving the parking lot and that any of them could have walked to the area where defendant had parked his car. One officer further testified that he could see the conduct at issue when standing fifteen to twenty feet away from the car. From the record before us, we cannot determine as a matter of law whether defendant was or was not "in a place open to public view." Accordingly, we remand this case to the trial court with instructions to apply the law as set forth in this opinion to the evidence previously presented to determine whether defendant's conduct was "open to public view." See State v. Giron, 948 P.2d 1114, 1121 (Utah Ct.App. 1997) (remanding for trial court to re-examine previously presented evidence "[bJecause the trial court was operating under a misunderstanding of the law"); State v. Hansen, 857 P.2d 978, 982 (Utah Ct.App.1993) (remanding because trial court's findings were inadequate for appellate court to determine whether legal standard was properly applied).

CONCLUSION

1 13 We affirm the trial court's conclusion that Salt Lake City Code § 11.16.100 is valid. We conclude the facts before the trial court were sufficient to show beyond a reasonable doubt that defendant "engaged in sexual conduct" within the meaning of the ordinance. Because we cannot determine as a matter of law from the record whether defendant's conduct occurred in a place "open to public view," we remand with instructions that the trial court apply the legal standard set forth in this opinion. The trial court should then reaffirm or vacate defendant's conviction depending on its determination whether or not the conduct occurred "in a place open to public view."

114 I CONCUR: GREGORY K. ORME, Judge.

BENCH, Judge

(dissenting in part):

[ 15 I agree with sections I and II of the main opinion. I disagree, however, with seetion III because I do not believe the trial court needs to redetermine whether this sexual conduct occurred "in a place open to public view."

116 Although Utah courts have not interpreted this particular ordinance, we have had significant experience in assessing what is open to public view. In the search and seizure context, for example, we have consistently allowed officers to seize evidence when the evidence is " 'in open view from a position lawfully accessible to the public'" State v. Holden, 964 P.2d 318, 321 (Utah Ct.App.), cert. denied, 982 P.2d 88 (Utah 1998) (quoting State v. Lee, 633 P.2d 48, 51 (Utah 1981)); see also State v. Belgard, 840 P.2d 819, 823 (Utah Ct.App.1992) (stating that onee officer is in a place "lawfully accessible to the public," officer is "free to observe whatever was in his open view that might have been observed by any other member of the general public").

1 17 It is undisputed that the officer in the instant case saw defendant kiss the exposed breasts of the woman he was with and he saw defendant's exposed genitals. It is also undisputed that the officer witnessed this sexual conduct from a place lawfully accessible to any member of the general public-as he stood in a public parking lot. Given the well-accepted standard in Utah case law regarding what it means to be in a place open to public view, I see no need to look to the case law of foreign jurisdictions. My conclusion is bolstered by the fact that the foreign jurisdictions cited in the main opinion would import a "likely [to bel seen by a casual passerby" standard, which is required neither by the plain language of the instant ordinance nor by the relevant Utah case law.

118 Accordingly, I would affirm outright the judgment of the trial court.

      . Defendant additionally contends the terms of the ordinance make it unconstitutionally vague and thus void. However, defendant raises this argument for the first time on appeal. "[Issues raised for the first time on appeal will be addressed only if the trial court proceedings demonstrated 'plain error'" State v. Olsen, 860 P.2d 332, 333 (Utah 1993) (citation omitted). Defendant has failed to demonstrate or even allege plain error by the trial court; thus, we do not address his vagueness argument.

      . Defendant contends that section 11.16.100 does not define "sexual conduct," basing his argument on an interpretation of subsection C, governing intentional exposure of the genitals. However, "sexual conduct" is defined by section 11.16.010, and because the trial court could reasonably have found that sexual conduct occurred, we need not address defendant's argument regarding subsection C.

      . We disagree with the dissent's conclusion that the interpretation of the statutory language "in a place open to public view" in this disorderly conduct lewdness ordinance should be drawn from decisions holding that Fourth Amendment protection from unlawful search does not attach to objects in plain view of a police officer. While "lilt has long been the law that objects falling within the plain view of an officer from a position where he is entitled to be are not the subject of an unlawful search," State v. Holden, 964 P.2d 318, 321 (Utah Ct.App.1998) (quoting State v. Lee, 633 P.2d 48, 51 (Utah 1981)), this case does not challenge the legality of a search under the Fourth Amendment. As the New York Court of Appeals noted in rejecting a similar argument: "plainly, the existence of a diminished expectation of privacy [for Fourth Amendment purposes] does not transform the interior of an automobile into a 'public place.'" People v. McNamara, 78 N.Y.2d 626, 578 N.Y.S.2d 476, 585 N.E.2d 788, 791 (1991) (interpreting term "public place"). The policy under the Fourth Amendment governing when an officer may search an automobile and the policy behind when disorderly conduct occurs 'in a place open to public view" are entirely different. The former controls officer conduct under the Fourth Amendment; the latter protects citizens from observing lewd private conduct. Our interpretation comports with this policy difference and is consistent with case law from our sister states.


author: LEHMAN, Chief Justice.

text:
    Michael Lee STONE, Appellant (Plaintiff-Obligor), v. Marylou S. STONE, n/k/a Marylou Sevilla, Appellee (Defendant-Obligee).
    No. 99-195.
    Supreme Court of Wyoming.
    June 23, 2000.

      Representing Appellant Michael Lee Stone, pro se.
    Representing Appellee: Gay Woodhouse, Attorney General; Michael L. Hubbard, Deputy Attorney General; and Kristen L. Blume, Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   LEHMAN, Chief Justice.

Appearing pro se, appellant Michael Stone (Father) attacks a district court order that determined him in arrears in child support for over $11,000. Because Father has presented no reasonable cause for appeal, we affirm and impose sanctions pursuant to W.R.A.P. 10.05.

ISSUES

Father offers the following statement of issues presented for review:

A. The Seventh Judicial District, the Honorable W. Thomas Sullins, Presiding Judge failed to consider the VERIFIED NOTICE OF FACT AND DATE ERROR, Filed on May 12, 1999 after the Hearing on May 6, 1999. This was due to the fact that the evidence of TERMINATION OF PARENTAL RIGHTS Minute Order was not presented in the May 6th's Seventh Judicial District Court's Hearing. Due to the Colorado Appellate Court's ORDER of NOT ALLOWING ANY PRO SE FILINGS OF THE RESPONDENT SHALL NOT BE CONSIDERED. All Motions and Notices of any nature what-so-ever were not allowed by the Father-Appellant.
B. The (I believe) unintentional error of the Seventh Judicial District Court was the causation of orders condemning the Father-Respondent of unfavorable orders as to why the Trial by Jury could not be had.
C. The absolute paramount decision is that the Father-Respondent be allowed, under Wyoming Statute, be allowed a trial to determine that mother-Appellee may be recognized to have violated the Seventh Judicial District's ORDERs and the State of Wyoming Supreme Court's ORDERS as well.
D. When the Wyoming Court's [sic] examine the Order of the Denver Juvenile Court they will find that the child support was terminated as their [sic] is no mention of Child Support Continuing or due on the final termination orders. Whereas, the Denver Juvenile Court assumed jurisdiction for support and this was adjudicated in Colorado Juvenile Court. The Father-Respondent no longer owes any child support as their [sicl is NO MENTION OF ANY OWING TO THE MOTHER, The child support division in Colorado will verify that they do not send any more "support due notices" as the Colorado Court emancipated the daughter as per the termination decree entry made in the PETITION FOR ENTRY OF UPDATED JUDGMENT FOR CHILD SUPPORT ARREARAGES BY OPERATION OF LAW, Filed Mar 23, 1999. (Court Record pp. 4). Wherein it is stated:
"That the Plaintiff shall pay to Defendant, ... the sum of $200.00 per month until ... said child reached the age of majority, marries, or becomes otherwise emancipated." (Underseoring mine for emphasis).
E. The father requested certified copies of the Colorado Court's Records and Tran-seript to prove this statement. He could not have proven this in the Court's Hearing of May 6, 1999, as the court of W. Thomas Sullins erred in not examining the document as it was NOT presented to the Father-Appellant or to the Court. The prosecution [sic] Attorney did not present the document in court that is why it is not of record until after the Hearing of May 6, 1999. Therefore the Father-Appellant could NOT respond until May 12, 1999, after the hearing. If the prosecutor would have only followed the rules of evidence we would not have to appeal this issue.
F. Again the paramount issue is did the mother by fraud and perjury deny the father his custodial visitation?

The appellee, State of Wyoming, on behalf of Marylou Stone n/k/a Sevilla (Mother), requests that we impose sanctions against Father pursuant to W.R.A.P. 10.05.

FACTS

Mother and Father were divorced in Na-trona County in September of 1991. Mother was awarded custody of the couple's only child, a daughter born June 8, 1988. Father was granted visitation and ordered to pay child support in the amount of $200 each month. Mother and daughter moved to Colorado. On April 26, 1998, the District Court for the City and County of Denver issued a temporary order restraining Father from, inter alia, "molesting or disturbing the peace" of Mother and daughter "by telephone or in person wherever they may be found." By its own terms, the temporary restraining order would expire one year after it issued, unless extended. Nearly five years later, on March 10, 1998, a Denver juvenile court terminated Father's parental rights, finding him unfit, "having engaged in long standing neglect of the child."

On March 28, 1999, the Natrona County Child Support Enforcement Department, acting on behalf of Mother, filed a "Petition for Entry of Updated Judgment for Child Support Arrearages by Operation of Law." See Wyo. Stat. Ann. § 20-6-106(b); State, Dep't of Family Servs., Div. of Public Assistance and Social Servs. v. Peterson, 960 P.2d 1022, 1023 (Wyo.1998) ("the Department may bring this action in its own name, without regard to the obligee's status as a recipient or non-recipient of public assistance."). In answer, Father filed a number of documents, arguing, among other things, that he had been denied visitation and that his daughter was emancipated. Following a hearing, which apparently went unreported, the district court entered an order, and subsequently an order nune pro tune, determining that Father was arrears in child support in the amount of $11,678.34 through April of 1999. Of that amount, $500 was ordered to be paid to the State of Wyoming. The district court also ordered that Father no longer owes a duty of support for the daughter as of March 10, 1998, the date Father's parental rights were terminated by the Colorado court. See Wyo. Stat. Ann. § 14-2-817(a)(i) (Lexis 1999). Father appealed.

DISCUSSION

We will try to decipher Father's issues the best we can. In doing so, we will focus on issues pertaining to the child support arrearages. First, Father appears to argue that the district court had no jurisdiction over its support order because a Colorado court had assumed jurisdiction of the same. The applicable statute provides:

§ 20-4-146. Continuing exclusive jurisdiction.
(a) A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order:
(1) As long as this state remains the residence of the obligor, the individual obligee or the child for whose benefit the support order is issued; or
(i) Until all of the parties who are individuals have filed written consents with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.
(b) A tribunal of this state issuing a child support order consistent with the law of this state may not exercise its continuing jurisdiction to modify the order if the order has been modified by a tribunal of another state pursuant to a law substantially similar to the Uniform Interstate Family Support Act.

Father presents us with no evidence to support his contentions. First, there is nothing in the record establishing that the Colorado courts ever assumed jurisdiction over child support; neither the restraining order nor order terminating parental rights indicates anything of the sort. To further counter Father's claim, nothing establishes that Father's support obligation of $200 per month has ever been modified, It is clear the district court had continuing exclusive jurisdiction to enforce its support order.

Father also argues his daughter was emancipated and the emancipation ended his support obligation under the terms of the original support order, which indicated support would cease upon emancipation. Pursuant to Wyo. Stat. Ann. § 14-1-208(f) (Lexis 1999), "[a] declaration of emancipation shall be conclusive evidence that the minor is emancipated, but emancipation may also be proved by other evidence like any other fact." Here, because there is nothing in the record to indicate that a decree of emancipation has been entered, the only question is whether other evidence supports an emancipation.

To support his emancipation argument, Father appears to contend that he was denied visitation and the denial of visitation resulted in emancipation. Father also argues his support obligation should have ended on April 26, 19983, the day a Colorado court entered a temporary restraining order, which, Father contends, restrained him from further contact with his daughter. Under Father's theory, his daughter was emancipated on the day that order was entered. In Broyles v. Broyles, 711 P.2d 1119, 1127-29 (Wyo.1985), we recognized that the denial of visitation rights by the custodial parent or the child does not constitute a change in cireumstances which justifies the reduction or termination of the noneustodial parent's support obligation. Sharpe v. Sharpe, 902 P.2d 210, 215 (Wyo.1995). Thus, even if we assume Mother interfered with visitation, Father's duty of support continued. Broyles, 711 P.2d at 1127-29. Likewise, even if Father was temporarily restrained from seeing his daughter, his duty of support continued. Father presented no evidence to establish that his young daughter, age 10 at the time of the hearing on child support arrearages, was no longer in need of care, custody, and maintenance during the period in question. When a child needs care, custody, and maintenance, the child is not emancipated, and the duty to support continues. Garver v. Garver, 981 P.2d 471, 474 (Wyo.1999); Phifer v. Phifer, 845 P2d 384, 386 (Wyo.1998); Broyles, 711 P.2d at 1127; see also Wyo. Stat. Ann. § 14-2-204(a) (Lexis 1999). Father's emancipation argument is without merit.

Father also appears to complain that the district court improperly refused to consider his "Verified Notice of Fact and Date Error," which was filed after the district court's hearing. However, Father presents no cogent argument or authority to support his claim that it should have been considered. We refuse to consider this claim, as well as any other remaining claims, as they are unsupported by the record, cogent argument, or pertinent authority. Barnes v. Barnes, 998 P.2d 942, 945 (Wyo.2000); Osborn v. Estate of Manning, 968 P.2d 932, 933 (Wyo.1998).

We finally turn to the propriety of the district court order finding Father in arrears. Suffice it to say that Father has not presented one shred of evidence to counter Child Support Enforcement's affidavit supporting the amount of child support due. In addition, nothing indicates the support order was modified or terminated prior to this action. The simple fact is that Father owed support and did not pay it. We affirm the district court's Order After Hearing of May 13, 1999, and subsequent Order Nunc Pro Tune of May 20, 1999.

This brings us to the State's request for sanctions. We have often stated, and Father is aware, that we expect pro se litigants to comply with the Wyoming rules of appellate procedure in the same way that trained lawyers are expected to perform. Stone v. Stone, 842 P.2d 545, 547 (Wyo.1992); Hamburg v. Heilbrun, 889 P.2d 967, 968 (Wyo.1995); Korkow v. Markle, 746 P.2d 434, 435 (Wyo.1987); Pinther v. Webb, 983 P.2d 1221, 1223 (Wyo.1999). While we may make allowances for pro se litigants, they are not excused from the requirement that their brief be supported by cogent argument and citations to pertinent authority. Baker v. Reed, 965 P.2d 1153, 1154 (Wyo.1998). We are generally reluctant to impose sanctions and will do so "only in those rare circumstances where an appeal lacks cogent argument, where there is an absence of pertinent authority to support the claims of error, and/or when there is a failure to adequately cite to the record." Baker v. Reed, 965 P.2d at 1154-55; Amen, Inc. v. Barnard, 938 P.2d 855, 858 (Wyo.1997); In Interest of FT, 856 P.2d 1128, 1129-30 (Wyo.1993). As is readily apparent, Father's statement of the issues is virtually unintelligible. We have granted Father considerable leeway in reviewing his brief and addressing some of the issues therein. However, the issues we have deciphered are supported neither by the record, cogent argument, nor pertinent legal authority. Accordingly, we certify there was no reasonable cause for this appeal and award sanctions pursuant to W.R.A.P. 10.05.

CONCLUSION

The district court's Order After Hearing of May 13, 1999, and Order Nune Pro Tune of May 20, 1999, are affirmed. The State shall submit a statement of costs and attorney fees to this court. Upon review, an appropriate award of costs and fees will be ordered.