author: JACKSON, Presiding Judge: DAVIS, Judge

text:
    2002 UT App 130
    STATE of Utah, Plaintiff and Appellee, v. Stephen Lamar GEUKGEUZIAN, Defendant and Appellant.
    No. 20010219-CA.
    Court of Appeals of Utah.
    April 25, 2002.
    Rehearing Denied May 14, 2002.

      Jerald V. Hale and Kendall Peterson, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and J. Frederic Voros Jr., Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges JACKSON, BILLINGS, and DAVIS.
   OPINION

JACKSON, Presiding Judge:

{1 Defendant appeals his convictions for Tampering with witness, a third degree felony, under Utah Code Ann. § 76-8-508(1) (Supp.2001), and making a Written false statement, a class B misdemeanor, under Utah Code Ann. § 76-8-504(2) (1999). He argues the trial court failed to properly instruct the jury on the elements of both offenses. Further, he contends that he received ineffective assistance of counsel. We affirm in part, reverse in part and remand.

BACKGROUND

T2 "We view the facts in the light most favorable to the jury verdict and recite them accordingly." State v. Loose, 2000 UT 11, ¶ 2, 994 P.2d 1237.

13 Defendant supervised Airman Jason Lyon, who often overheard Defendant making threats of violence against Defendant's wife when he and Defendant were driving together in a vehicle or working together in a "small area." On May 5, 2000, Lyon signed a sworn statement regarding the threats he had overheard. After she learned of Defendant's threats, Defendant's ex-wife, Tatilia Geukgeuzian, filed a petition for a protective order.

T4 Defendant then took Lyon into a back room and requested that he make a statement "for his court case" suggesting that Lyon had never overheard Defendant threaten his ex-wife. Lyon complied with Defendant's request. A short time later, Defendant presented Lyon with a similar typed statement that Defendant had written for Lyon to sign. Lyon signed that statement also. At trial, Lyon testified, in effect, that he signed these two statements because he felt intimidated by Defendant, and because Defendant was his supervisor and could punish him at work.

ISSUES AND STANDARDS OF REVIEW

[2-5] 15 Defendant presents three challenges to the jury instructions. Because Defendant failed to object to the challenged jury instructions at trial, we review those instructions only upon a showing of manifest injustice. See Utah R.Crim. P. 19(c); State v. Casey, 2001 UT App 205, ¶ 26, 29 P.3d 25. "Manifest injustice under Rule 19(c) [of the Utah Rules of Criminal Procedure] ... is determined using the plain error standard." State v. Irwin, 924 P.2d 5, 10 n. 5 (Utah Ct.App.1996).

To demonstrate plain error, defendant must establish the following: "(i) An error exists; (i) the error should have been obvious to the trial court; and (fii) the error is harmful...." In order to show that the error is harmful, defendant must demonstrate that "absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant."

State v. Medina-Juarez, 2001 UT 79, ¶ 18, 34 P.3d 187 (citation omitted).

16 Defendant also challenges his conviction on the basis of ineffective assistance of counsel.

In reviewing an ineffective assistance of counsel claim we apply the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy that test, the defendant must show: "(1) that counsel's performance was deficient below an objective standard of reasonable professional judgment, and (2) counsel's performance prejudiced the defendant." If a defendant fails to establish either of the two parts of the Strickland test, counsel's assistance was constitutionally sufficient, and we need not address the other part of the test.

Medina-Juares, 2001 UT 79 at ¶ 14, 34 P.3d 187 (citation omitted).

ANALYSIS

I. Jury Instructions

17 Defendant argues the trial court improperly instructed the jury in three ways. First, he contends the trial court committed reversible error when it failed to instruct the jury on an element of tampering with a witness. We agree.

T8 "A person is guilty of a third degree felony if, believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a person to: (a) testify or inform falsely; [or] (b) withhold any testimony, information, document, or item;...." Utah Code Ann. § 76-8-508(1) (Supp.2001). Because section 76-8-508 specifies no mens rea for the attempt or inducement element, the required mental state is governed by Utah Code Ann. § 76-2-102 (1999). That section states, "Every offense not involving strict liability shall require a culpable mental state, and when the definition of the offense does not specify a culpable mental state and the offense does not involve strict liability, intent, knowledge, or recklessness shall suffice to establish eriminal responsibility." Utah Code Ann. § 76-2-102 (1999).

19 Here, "[the trial court gave an elements instruction to the jury that closely tracked the language of [section 76-8-508] but omitted the language referring to the required mental state. The instruction given thus does not specify the culpable mental state required for" attempting or inducing a person as described in the statute. State v. Chaney, 1999 UT App 309, ¶ 53, 989 P.2d 1091 (footnote omitted). "To avoid manifest injustice, an elements instruction that fails to include the mens rea constitutes reversible error." Id. at 1 54. Thus, as a matter of law the trial court's failure to include the mental state required for tampering with a witness is manifest injustice.

$10 The State argues that because "Defendant actually proposed an elements instruction containing the very omission he complains of on appeal," he invited the trial court's error. The State cites Cha-mey for the proposition that Defendant is thus precluded from benefitting by the manifest injustice exception; however, Chaney is distinguishable from the present case. Although Chaney involved a similar fact pattern, we determined that the defendant in that case invited the error complained of because he objected to and rejected the trial court's correct jury instruction and pressed "his theory that the accomplice statute requires intent." Id. at 155. Chaney's conduct led the trial court to commit error. See id. at Here, the State has not shown that Defendant's conduct actually led the trial court into its erroneous action. Thus, the invited error doctrine does not apply in this case. See id. at 1 54 ("[A] party cannot take advantage of an error committed at trial when that party led the trial court into committing the error." (quoting State v. Anderson, 929 P.2d 1107, 1109 (Utah 1996) (Emphasis added))). Accordingly, we reverse Defendant's conviction for tampering with a witness and remand for a new trial on the tampering with a witness charge.

1[ 11 Next, Defendant argues the trial court improperly instructed the jury regarding the elements of making a written false statement. A defendant is guilty of making a written false statement if "[with intent to deceive a public servant in the performance of his official function, he: (a) Makes any written false statement which he does not believe to be true; or ... (c) Submits or invites reliance on any writing which he knows to be lacking in authenticity." Utah Code Ann. § 76-8-504(2) (1999). The trial court's elements instruction for this offense states that Defendant was guilty of false written statement if "intending to deceive a public servant in the performance of his official function [he]; a. Made or caused to be made a written false statement which [he] did not believe to be true; or b. Submitted or invited reliance upon a writing which [he] knew to be lacking in authenticity." (Emphasis added.)

1 12 Defendant contends the language "or caused to be made" "impermissibly expands the scope of the statute by inferring that [section] 76-8-504(2)(a) would include a written false statement of a third party which was made at" Defendant's request. Further, Defendant argues this language creates a hybrid between section 76-8-504(2)(a) and section 76-8-504(2)(c), which invited the jury to substitute the "knowing" mental state of section 76-8-504(2)(c) with the "believing" mental state of section 76-8-504(2)(a). The State counters, arguing that because the added language "criminalizes no conduct that is not already criminalized by subsection (2)(c)," we can determine that the jury found all the elements of the offense. Thus, the State argues, Defendant cannot meet his burden of showing manifest injustice because he cannot show the error was prejudicial.

118 We agree with the State. As applied to Defendant, the language "or caused to be made" makes illegal no conduct that section 76-8-504(2)(c), on which the jury was instructed, did not already "criminalize." Put differently, we conclude on the facts of this case that if Defendant "caused to be made a written false statement which [he] did not believe to be true," he necessarily either "[slubmit[ted] or invite[d] reliance on [a] writing which he [knew] to be lacking in authenticity." Id. In the present case we find little distinction between Defendant submitting or inviting reliance on a writing which he did "not believe to be true" and one "which he knows to be lacking in authenticity." Id. "Although the general verdict in this case gave no indication of which variation of [making a written false statement] the jury relied upon in its conviction, the record contains abundant evidence-both eyewitness testimony and physical evidence-from which the jury could conclude that [Dlefendant" was guilty of making a written false statement. State v. Fontana, 680 P.2d 1042, 1048 (Utah 1984). Thus, we cannot say Defendant has "demonstrate[d] that 'absent the error, there is a reasonable likelihood of a more favorable outcome for' " Defendant. State v. Medina-Juarez, 2001 UT 79, ¶ 18, 34 P.3d 187 (citation omitted). As a result, Defendant fails to demonstrate plain error or manifest injustice. Accordingly, we reject this challenge to the trial court's false statement jury instructions.

- 14 Defendant finally argues the trial court improperly instructed the jury regarding the elements of making a written false statement because it "failed to define the mental state of 'know[s]' " contained in section 76-8-504(2)(c). However, he has failed to demonstrate prejudice. Whether Defendant "knew" a writing lacked authenticity turns on whether he was "aware of the nature of his conduct or the existing cireum-stances." Utah Code Ann. § 76-2-103(@) (1999). Defendant fails to demonstrate that an instruction defining knowledge in this manner would result in " 'a reasonable likelihood of a more favorable outcome for' " him. Medina-Juarez, 2001 UT 79 at ¶ 18, 34 P.3d 187 (citation omitted). Thus, this challenge to the jury instructions also fails.

II. Ineffective Assistance of Counsel

115 Defendant also challenges his conviction for making a written false statement based on ineffective assistance of counsel. "[PJroof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality." Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993).

116 Defendant argues that his trial counsel provided ineffective assistance by failing to object to a certain line of questioning the prosecutor put to Lyon. He asserts the prosecutor's questions to Lyon, regarding Defendant's knowledge of the truthfulness of the writing Defendant requested Lyon to submit, were objectionable under Rule 602 of the Utah Rules of Evidence. Defendant claims he was prejudiced because,

the jury was allowed to hear and consider without a curative instruction, a statement attributing a state of mind to defendant, which was supported by no other evidence before the court.... No evidence was introduced to support a contention to the effect that Airman Lyon had any personal knowledge whatsoever regarding whether [Defendant] was aware Airman Lyon was around when [Defendant] allegedly made threatening statements about his wife. Nor was there any evidence introduced to . establish the personal knowledge of Airman Lyorn that Appellant was asking him to "write something that was false."

{17 However, our review of the record reveals that abundant evidence was presented to establish Lyon's personal knowledge "regarding whether [Defendant] was aware Lyon was around when [Defendant] allegedly made threatening statements about his wife." Thus, Defendant failed to establish the reasonable likelihood of a more favorable outcome at trial, and thereby failed to establish prejudice. Accordingly, we affirm Defendant's conviction for making a written false statement.

CONCLUSION

118 Because the trial court failed to instruct the jury on the mental state required for tampering with a witness, we reverse his conviction on that charge and remand for a new trial on that charge. Otherwise, we affirm.

19 I CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge.

DAVIS, Judge

(concurring and dissenting):

120 I concur in the majority's analysis of the tampering with a withess conviction.

T21 I do not, however, share the majority's analysis or result respecting the written false statement conviction. Since the indis-putedly erroneous instruction added language to the statute that made it uniquely applicable to the evidence in this case, suggesting that the jury could have found Defendant guilty under another section is a stretch that I cannot in good conscience make.

$22 When tailoring a statute to fit the evidence is coupled with a failure to define the mental state required for conviction, I believe the Defendant has clearly established plain error, and his conviction for written false statement should also be reversed.

      . Because he was in close proximity to Defendant during these conversations and participated in them, Lyon testified at trial that in his view Defendant must have been aware that Lyon had heard Defendant's threats.

      . 'Where invited error butts up against manifest injustice, the invited error rule prevails." State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct.App.1991); accord State v. Chaney, 1999 UT App 309, ¶ 54, 989 P.2d 1091.

      . In light of this decision, we do not address Defendant's challenge based on ineffective assistance of counsel to his conviction for witness tampering.

      . However, we note that one can meet the requirements of Utah Code Ann. § 76-8-504(2)(c)(1999) other than by causing a written false statement to be made as described above.

      . "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Utah R. Evid. 602.


source: Caselaw Access Project

author: BENCH, Judge:

license: Public Domain

text:
    2002 UT App 244
    STATE of Utah, Plaintiff and Appellee, v. Dale Demont HARDY, Defendant and Appellant.
    No. 20010396-CA.
    Court of Appeals of Utah.
    July 18, 2002.

      Linda M. Jones and Robert K. Heineman, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General and Jeanne B. Inouye, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BENCH, DAVIS, and ORME.
   OPINION

BENCH, Judge:

T1 Defendant appeals from his convictions for one misdemeanor and two felony counts of violating a protective order. We affirm.

BACKGROUND

12 On January 8, 1999, as a result of a domestic violence incident, Courtney Hardy obtained an ex parte protective order against Defendant. One provision of the order prohibited Defendant from "directly or indirectly contacting" Ms. Hardy. The deputy who served the protective order on Defendant explained the provisions of the protective order, including the section prohibiting direct or indirect contact, which the deputy de-seribed to include letter writing. On January 25, a hearing was held, at which Defendant was present, and the protective order was made permanent.

1 3 In April 1999, Defendant pleaded guilty to one misdemeanor count of violation of the protective order for three phone calls he made to Ms. Hardy after the protective order was in effect. The plea was held in abeyance conditioned upon Defendant committing no further violations.

T4 In June 1999, two letters from Defendant arrived at the home then occupied solely by Ms. Hardy and her four children, whose ages ranged from one to eight years old. The letters were addressed to the children, although only two of them were old enough to read, and they read at a very rudimentary level. Excerpts from the June 7 letter include:

I realized that there are few people that really know me because they have not taken the time to have a conversation with me. I'm not talking about talking at/to me-hello goodbye stuff. But really converse like Mommy and I did. Although I feel that I attempted to get to know her, I feel that she did not know me well enough, but I allways [sic] wanted her to. She seemed to have too much to do when I needed to talk or she was tired when I thought she would be willing to hear me.
I still believe that your mommy would trust me and like me if she would converse with me-that is why I wanted her to go with me on the cruise. I would never try to talk her into something or change her mind.

The letter also contained a recipe for Stuffed Steelhead Trout, although none of the children could cook.

T5 The June 24 letter contained statements such as:

I only wish I knew what I have done to have you treat me this way.
I can change and do things differently in the future and forget the past. But how do I forget my own flesh & blood and my wife that I thought wanted me like I need her?
I have now had nearly six months of this yet I cannot understand why one person would want to hurt another person this way. I am too naive or dumb to "get it." One of Mommy's friends even said "get a life" to me. Just how do I do that?
Please forgive me someday and phone or send pictures of you and especially mommy if you can. I can not help being in love and I know that someday you will understand me if you take time to be with me.

T6 Based on these letters, Defendant was charged with and convicted by a jury of two counts of felony violation of a protective order. Additionally, Defendant was found in violation of his abeyance agreement and his guilty plea was entered on the misdemeanor count. Defendant now appeals.

ISSUES AND STANDARDS OF REVIEW

17 Defendant challenges the trial court's ruling that the State presented sufficient evidence to conviet him of the felony counts and to conclude that he had violated his abeyance agreement.

We will reverse a jury verdict only when, after viewing the evidence and all inferences drawn therefrom in a light most favorable to the verdict, we find that the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust.

State v. Silva, 2000 UT App 292, ¶ 13, 13 P.3d 604 (quotations and citations omitted).

T8 Second, Defendant contends that Utah Code Ann. § 830-6-4.2(@)(b) (Supp.2001), which permits a court to include in a protective order a prohibition against all contact, direct or indirect, and Utah Code Ann. § 76-5-108 (1999), which provides eriminal penalties for violations of a protective order, are overly broad and impermissibly vague in violation of the United States Constitution. "[WJhen reviewing statutes for constitutionality, a statute is presumed constitutional and we resolve any reasonable doubts in favor of constitutionality." Salt Lake City v. Lopes, 935 P.2d 1259, 1262 (Utah Ct.App.1997) (quotations and citations omitted) (alteration in original).

ANALYSIS

L SUFFICIENCY OF THE EVIDENCE

T9 Defendant argues that subsection 30-6-4.2(2)(b) should be construed to prohibit only violent, abusive, threatening, or harassing contact or communication. Subsection 30-6-4.2(2)(b) provides that "[al court may grant the following relief without notice in an order for protection or a modification issued ex parte: ... prohibit the respondent from harassing, telephoning, contacting, or otherwise communicating with the petitioner, directly or indirectly." Id.

"[Olur primary goal in interpreting statutes is to give effect to the legislative intent, as evidenced by the plain language.... We need look beyond the plain language only if we find some ambiguity." State v. Burns, 2000 UT 56,¶ 25, 4 P.3d 795 (internal citation omitted). "When language is clear and unambiguous, it must be held to mean what it expresses, and no room is left for construction." Nelson v. Salt Lake County, 905 P.2d 872, 875 (Utah 1995). We conclude that there is nothing ambiguous about the terms "contacting," "otherwise communicating," "directly," or "indirectly" such as to warrant construing them to mean something other than their common and accepted meaning. We also note that construing the statute as Defendant suggests would render the phrases superfluous since subsection 80-6-4.2(2)(b) expressly prohibits harassing contact, and subsection 80-6-4.2(2)(a) prohibits threats of abuse or violence. See Hall v. Utah State Dept. of Corr., 2001 UT 34,¶ 15, 24 P.3d 958 (stating court will "avoid interpretations that will render portions of a statute superfluous or inoperative").

{11 Defendant's challenge to the sufficiency of the evidence is really a challenge to the inference the jury was required to make that although addressed to the children, the letters were intended as communication with Ms. Hardy. He argues that because he testified that the letters were intended for his children when they grow up, the jury could not have inferred that they were intended for Ms. Hardy. However, " '[tJhe existence of contradictory evidence or of conflicting inferences does 3 9 not warrant disturbing the jury's verdict. Id. at ¶ 14 (quoting State v. Howell, 649 P.2d 91, 97 (Utah 1982)) (alteration in original). Further, "(it is within the exclusive province of the jury to judge the credibility of the witness and the weight of the evidence." Howell, 649 P.2d at 97.

{12 Our review of the record reveals evidence including testimony as to the children's level of understanding and lack of reading skill, the significance within the marital relationship of certain information in the letters, and of Defendant's previous attempts to contact Ms. Hardy through letters, We conclude that this evidence was sufficient such that the jury could reasonably infer that, although addressed to the children, the letters were really an attempt to communicate with Ms. Hardy in violation of the protective order. See State v. Boyd, 2001 UT 30,¶ 16, 25 P.3d 985 ("So long as there is some evidence, including reasonable inferences, from which findings of all the requisite elements of the crime can reasonably be made, our ingqui-ry stops." (Quotations and citations omitted.)).

IIL. CONSTITUTIONALITY

A. Waiver of Constitutional Issues in Misdemeanor Case

113 The State argues that Defendant has failed to adequately preserve his claims regarding the statutes' constitutionality in the misdemeanor case. We agree. Defendant entered an unconditional guilty plea in that case, which was held in abeyance for one year. The trial court found that Defendant violated the terms of the agreement, and his guilty plea was entered. "By pleading guilty, the defendant is deemed to have admitted all of the essential elements of the crime charged and thereby waives all nonjurisdic-tional defects, including alleged pre-plea constitutional violations." State v. Parsons, 781 P.2d 1275, 1278 (Utah 1989).

~ B. Preservation of Vagueness Claim in Felony Case

114 "Utah courts require specific objections in order 'to bring all claimed errors to the trial court's attention to give the court an opportunity to correct the errors if appropriate."" State v. Brown, 856 P.2d 358, 361 (Utah Ct.App.1998) (quoting VanDyke v. Mountain Coin Mach. Distrib., 758 P.2d 962, 964 (Utah Ct.App.1988)). At the close of the State's case, Defendant made a motion to dismiss the charges based on his contention that the statute was overbroad in that the protective order limited constitutionally protected speech. A discussion between defense counsel and the court ensued as to the exact nature of Defendant's objection. At no time during this discussion did Defendant suggest to the trial court that the statute was unconstitutionally vague. Defendant argues on appeal that the two doctrines go hand in hand; therefore, he need not have specifically raised vagueness to preserve the issue for appeal. We disagree.

{150 "The specificity requirement arises out of the trial court's need to assess allegations by isolating relevant facts and considering them in the context of the specific legal doctrine placed at issue." Id. The relevant facts and legal arguments related to Defendant's claim of overbreadth are not the same as those related to his claim of vagueness. Therefore, we conclude that Defendant did not raise the issue of vagueness "to a level of consciousness such that the trial judge [could] consider it." Id. (quotations and citations omitted). Defendant makes no argument as to plain error or exceptional cireumstances, thus we decline to address his vagueness claim on appeal. See id. at 359 ("As a general rule, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances.").

C. Overbreadth

116 Defendant argues that subsection 30-6-4.2(2)(b) is unconstitutionally over-broad in that it gives the court power to limit all speech directed at Ms. Hardy, even "innocent speech." Consequently, Defendant contends that section 76-5-108, which creates a criminal penalty for violating a protective order, is also overbroad. "Statutory language is overbroad if its language proscribes both harmful and innocuous behavior." Elks Lodges 719 & 2021 v. Department of Alcoholic Beverage Control, 905 P.2d 1189, 1203 (Utah 1995). When evaluating a content-neutral injunction on speech, such as a protective order, we consider "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Madsen v. Women's Health Ctr., 512 U.S. 753, 765, 114 S.Ct. 2516, 2525, 129 L.Ed.2d 593 (1994).

T17 The state has an inarguably significant interest in. protecting the health and well-being of its citizens. In furtherance of this goal, the state has created a mechanism whereby the victims of domestic violence may obtain civil orders of protection against their abusers. See Utah Code Ann. § 30-6-2 (1999). As part of this protection, the court may prohibit the abuser from having any contact, direct or indirect, with the victim or the victim's family. See Utah Code Ann. § 30-6-4.2(2)(b). Although subsection 30-6-4.2(2)(b) appears to sweep broadly because it allows courts to prohibit all communication between two people, the statute is actually quite narrowly crafted. Before a protective order may issue, a court must first conclude that the parties to the protective order are cohbabitants, and that a cohabitant has been "subjected to abuse or domestic violence, or ... there is a substantial likelihood of immediate danger of abuse or domestic violence." Id. Without the particular relationship of "cohabitants" and without previous instances or the "substantial likelihood" of domestic violence or abuse, the court may not restrict the protective order respondent's right to speak and associate freely. Id. Thus, we conclude that section 830-6-4.2 is not impermissibly overbroad because it is narrowly drafted to "burden no more speech than necessary to serve a significant government interest." Madsen, 512 U.S. at 765, 114 S.Ct. at 2525. Consequently, we also conclude that section 76-5-108, which provides criminal penalties for violating a protective order, is also not overly broad.

118 We further reject Defendant's contention that the statute may only prohibit "harassing, violent, abusive, threatening, libelous, or obscene" communication but not "innocent" communication. We agree with the South Dakota Supreme Court that "[the cycle of violence so common to domestic abuse, includes attempts at reconciliation often amounting to nothing more than harassment." State v. Hauge, 547 N.W.2d 173, 176 (S.D.1996). Further, "[iJn the middle of domestic strife, preserving the mental and emotional health of the vulnerable must override other less compelling interests." Id. The State points out that innocent comments between estranged cohabitants can easily escalate into arguments that result in incidences of domestic violence. If a need arises for Defendant to communicate with Ms. Hardy regarding visitation or financial matters, he has an available remedy in the form of a motion to modify the protective order wherein the court may provide appropriate limitations for that type of communication. See supra note 2. -

CONCLUSION

1 19 We conclude that the State presented sufficient evidence of all the elements of the crime and that the statute is not ambiguous. Further, we conclude that Defendant has not adequately preserved for our review his constitutional arguments in the misdemeanor case and his vagueness argument in the felony case. Finally, we conclude that the statutes at issue are not unconstitutionally over-broad.

T20 Accordingly, Defendant's convictions are affirmed.

1 21 WE CONCUR: JAMES Z. DAVIS, Judge, and GREGORY K. ORME, Judge.

      . "In setting out the facts from the record on appeal, we resolve all conflicts and doubts in favor of the jury's verdict and the rulings of the trial court." State v. Tolman, 775 P.2d 422, 422-23 (Utah Ct.App.1989) (quotations and citations omitted).

      . We note that throughout the protective order's duration the court may, on its own motion or that of either party, modify the provisions of the protective order. See Utah Code Ann. § 30-6-4.2 (Supp.2001). Thus, as situations arise where communication between the parties is necessary regarding matters involving the children such as visitation arrangements, medical needs, school performances, etc., the court may tailor the protective order to permit and provide guidelines for communication regarding these subjects.


author: PER CURIAM: ORME, Judge

text:
    2002 UT App 277
    Aaron RAISER, Plaintiff and Appellant, v. Steve BUIRLEY and Diane Buirley, Defendants and Appellees.
    No. 20010844-CA.
    Court of Appeals of Utah.
    Aug. 29, 2002.

      Aaron Raiser, Provo, Appellant Pro Se.
    Steve Buirley and Diane Buirley, Orem, Appellees Pro Se.
    Before Judges BENCH, ORME, and THORNE.
   OPINION

PER CURIAM:

T1 This case is before the court on a petition for rehearing. We grant the petition and reinstate the appeal for consideration on the merits.

T2 This court dismissed the appeal for lack of jurisdiction based upon an untimely notice of appeal. See Raiser v. Buirley, 2002 UT App 122, 2002 WL 575572 (per curiam). The district court entered its judgment on August 31, 2001, and the time for filing a notice of appeal expired on Monday, October 1, 2001. The notice of appeal was stamped as "filed" in the district court on October 5, 2001, more than thirty days after entry of the judgment. Our decision relied upon In re M.S., 781 P.2d 1287 (Utah Ct.App.1989) (per curiam) for its holding that the appellate court is "bound by the filing date indicated on the notice of appeal transmitted to it by the trial court." Id. at 1288.

{3 In his petition for rehearing and accompanying affidavit, Appellant Aaron Raiser attests that the notice of appeal was either mailed or placed in a drop basket at the Fourth District Court, Provo Department, on or about September 20, 2001, along with a money order as payment of the fee. He further attests that the notice of appeal and money order were returned to him by the court approximately a week and one half later "with a notice that it had the incorrect pay-to-order-of entry." Raiser states that he then refiled the notice of appeal on October 5, 2001, along with a corrected money order.

T4 The facts alleged in the petition for rehearing are supported in the record insofar as the original notice of appeal bears a date-stamp indicating it was "Filed in 4th District Court, State of Utah, Utah County September 20 11:51 AM '01." This date-stamp was crossed out in ink and initialed. A second date-stamp, which is not erossed out, indicated that the notice of appeal was refiled in the same court on October 5, 2001. The district court docket contains an entry dated September 27, 2001, stating "Return documents to plaintiff-notice of appeal-no filing fee or bond paid." The next chronological entries indicate filing of the notice of appeal, payment of the filing fee of $190, and posting of a bond, all occurring on October 5, 2001.

[1] 15 Following adoption of current rule 3(a) of the Utah Rules of Appellate Procedure, the Utah Supreme Court ruled that timely payment of the filing fee for appeal is not jurisdictional. See State v. Johnson, 700 P.2d 1125, 1129 n. 1 (Utah 1985) (holding plain language of rule 8(a) establishes that "the timely payment of fees on an appeal from the district court to this court is no longer jurisdictional"). However, rule 8(f)of the Utah Rules of Appellate Procedure requires the district court to refuse receipt of a notice of appeal if the required filing fee is not tendered at the time of filing. See Utah R. Civ. P. 3(f) ("[The clerk of the trial court shall not accept a notice of appeal unless the filing fee is paid.").

T6 In Gorostieta v. Parkinson, 2000 UT 99, 17 P.3d 1110, the Utah Supreme Court considered the relationship between rule 3(a) and rule 3(F). A district court clerk in Logan agreed to accept a notice of appeal faxed from Salt Lake City on its due date, "as long as the original notice and filing fees were mailed forthwith." Id. at 118. Faxed copies of the notice of appeal and check for the filing fee were sent and received on September 25, 1998, the last day for filing. See id. The original notice of appeal was subsequently received and filed on September 28, and the fees were received on October 2. See 1d. The Utah Supreme Court held that it had jurisdiction, stating:

The clerk accepted the fax copy of the notice of appeal as a timely filed notice of appeal. [Appellee] argues that rule 3(f) indicates that a notice of appeal is not filed until the filing fees are paid. The plain language of rule 3(f) does not, however, state that the notice of appeal is not considered filed until the fees are paid. Rather, the language directed the clerk not to accept a notice of appeal unless the fees are paid. We do not address whether the filing fees were timely paid upon their being mailed with the permission of the clerk as [Appellants] argue, because this court has already addressed the effect that payment of fees has on our appellate jurisdiction. The clerk accepted the faxed copy of the notice of appeal as being timely filed, and therefore, we have jurisdiction to hear this matter.

Id. at «I 20.

17 Unlike the situation in Gorostieta, where the clerk accepted a faxed notice of appeal prior to receipt of the filing fee, the clerk in this case ultimately rejected the notice of appeal. However, this rejection did not occur until after the notice was at least preliminarily accepted by stamping it "filed" and until after the passage of a week's time. The last day for filing a timely notice of appeal under rule 4(a) of the Utah Rules of Appellate Procedure was Monday, October 1, 2001. The notice of appeal was originally received and stamped as filed on September 20, 2001, well within the time for appeal. Filing a timely notice of appeal is the only jurisdictional requirement to initiate an appeal, and the notice of appeal could have been accepted, as in Gorostieta.

118 Under rule 3(f), the district court clerk could refuse to accept the notice if it was not accompanied by the appropriate filing fee. Nevertheless, an appellant may reasonably assume that he or she will be promptly notified of the rejection of an otherwise timely notice of appeal, especially if the filing fee is tendered therewith. Based on the court's docket, the notice of appeal was returned by the court on Thursday, September 27, 2001, apparently by mailing it to Raiser. The delay of approximately one week in returning the notice of appeal resulted in a claimed delay in receiving the notice of appeal until a date when the time for appeal had either expired or was about to expire.

9 Under the unique circumstances of this case, we deem the notice of appeal to have been filed on September 20, 2001, when it was first accepted and date-stamped by the district court clerk. The delay of one week in rejecting the notice of appeal and returning it to Raiser based upon the apparent failure to tender an acceptable filing fee was ineffective because the timely notice of appeal had been accepted as "filed" by the clerk,. To deem the acceptance revocable would work an injustice because Raiser could reasonably rely upon either acceptance of the notice of appeal or its prompt rejection.

110 We grant the petition for rehearing and reinstate the appeal for consideration on its merits.

ORME, Judge

(concurring):

T 11 I concur in the main opinion, but wish to point out that this problem should never have arisen. Very simply, the clerk's office should not have returned the notice of appeal and filing fee to Appellant. Had it not done so, the appeal would clearly have been timely.

112 It is undisputed that Appellant tendered with his notice of appeal a money order in the full amount of the required filing fee. It is also undisputed that the notice and money order were returned several days later because of some "need" to correct the way the payee was named on the money order. The record does not reveal what the perceived problem was, but one assumes the payee was shown as "Courts" or "State of Utah" or the like instead of "Clerk, Fourth District Court." As a practical matter, had the clerk simply stamped the back of the money order with the office's deposit endorsement stamp and deposited the money order with the rest of the day's receipts, it would have been credited to the appropriate account and paid in due course. And as a matter of law, such problems in designating the payee are inconsequential. "The instrument is payable to the person intended by the signer even if that person is identified in the instrument by a name or other identification that is not that of the intended person." Utah Code Ann. § 70A-8-110(1) (1997). There would be no question that in tendering a money order in the amount of the filing fee with a notice of appeal that was delivered or sent to the office of the court clerk, Appellant necessarily intended the money order to be payable to the court.

(13 From all that appears, the filing fee was legally sufficient and should have been accepted when first tendered. The jurisdictional problem in this case was unnecessarily created by the court clerk who improperly rejected Appellant's filing fee.


author: BENCH, Judge.

text:
    2002 UT App 279
    STATE of Utah, Plaintiff and Appellee, v. Eddie CLEGG, Defendant and Appellant.
    No. 20010440-CA.
    Court of Appeals of Utah.
    Aug. 29, 2002.
    Margaret P. Lindsay, Provo, for Appellant.
    Mark L. Shurtleff and Christine F. Soltis, Salt Lake City, for Appellee.
    Before Judges BILLINGS, BENCH, and DAVIS.
   OPINION

BENCH, Judge.

11 Defendant Eddie Clegg appeals from convictions of possession of a controlled substance, and possession of drug paraphernalia. At issue is whether the trial court erred by not holding an evidentiary hearing in denying Defendant's motion to suppress. We affirm.

BACKGROUND

T2 On November 22, 1999, an informant identified Defendant's trailer as a drug house. Officers Dearden, Beebe, and Barney then searched "the garbage can from off the street directly in front of [Defendant's] trailer." The officers discovered various drug paraphernalia in the search of the garbage can. The next day, Officers Dearden and Beebe executed a search warrant at Defendant's trailer. During the search, the officers seized methamphetamine and drug paraphernalia. Defendant was charged with possession of a controlled substance and possession of drug paraphernalia.

13 Following a preliminary hearing, Defendant filed a motion, later supplemented, to suppress the evidence. In the motions, Defendant argued that the search of his resi-denee violated his Fourth Amendment rights because probable cause did not support the search warrant. Defendant also argued that the search of his garbage can violated the Fourth Amendment. On October 5, 2000, the trial court denied Defendant's motion. The trial court concluded the affidavit was sufficient to support the warrant and, pursuant to State v. Jackson, 937 P.2d 545, 549-50 (Utah Ct.App.1997), Defendant had no reasonable expectation of privacy in trash left in a garbage can on the street for collection.

14 On November 18, 2000, over a month after the court had issued its decision denying Defendant's motion to suppress, Defendant filed a "Motion for Hearing on Motion to Suppress." Defendant argued that a factual issue existed as to whether the garbage can was outside of the residential curtilage at the time of the search. The trial court denied Defendant's request for a hearing. Defendant then entered conditional guilty pleas, and this appeal followed.

ISSUE AND STANDARD OF REVIEW

15 Defendant argues that the trial court abused its discretion by not conducting an evidentiary hearing on his motion to suppress because there was a "clear dispute between the parties as to whether the garbage can searched by [the] officers ... was retrieved from off the street in front of the residence or from the curtilage of the residence." "We review a trial court's denial of an evidentiary hearing on a motion to suppress for abuse of discretion." United States v. Glass, 128 F.3d 1398, 1408 (10th Cir.1997).

ANALYSIS

16 A "defendant bears the burden of showing there are material facts in dispute, and an evidentiary hearing is only required when the motion to suppress 'raise[s] factual allegations that are "sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in issue." '" Id. at 1408-09 (quoting United States v. Chaves-Marques, 66 F.3d 259, 261 (10th Cir.1995) (citation omitted)). If no material fact is in dispute, then no evidentiary hearing is required. See United States v. Lilly, 983 F.2d 300, 310-11 (1st Cir.1992) (stating that "[a] criminal defendant has no constitutional right to conduct a fishing expedition, therefore a movant must make an adequate threshold showing that material facts are in genuine doubt or dispute"); United States v. Rodrigues, 69 F.3d 136, 141 (7th Cir.1995) ("To warrant a hearing, the defendant's submission must demonstrate that there is a disputed material issue of fact.").

17 Defendant argues that the trial court abused its discretion by failing to conduct an evidentiary hearing on his motion to suppress. We disagree.

T8 In his motion to suppress and the subsequent supplement, Defendant challenged (1) the sufficiency of the affidavit to establish probable cause, (2) the reliability of the informant, and (8) whether an exception permitted a warrantless search of a garbage can "situated at or near" the street. The trial court appropriately addressed these contentions in its memorandum decision. Only after the court denied the motion to suppress did Defendant even attempt to dispute the location of the trash can. Our review of the record reveals no abuse of discretion by the trial court. Defendant's motion to suppress contains no factual allegations going to the issue of where the trash can was located. The affidavit in support of the search warrant clearly states that "the garbage can [was removed] from off the street directly in front of ... [Defendant's] trailer." Defendant did not challenge this statement prior to the trial court's denial of his motion to suppress. Accordingly, Defendant failed to place a material fact in dispute and the trial court did not abuse its discretion in denying Defendant's subsequent request for a hearing. See Lilly, 983 F.2d at 310; see also Rodriguez, 69 F.3d at 141.

CONCLUSION

19 An evidentiary hearing is necessary only when a material fact is in dispute. Defendant failed to place a material fact in dispute. The trial court did not abuse its discretion in denying Defendant's request for an evidentiary hearing.

1 10 Accordingly, we affirm.

111 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and JAMES Z. DAVIS, Judge.

      . On appeal, Defendant does not challenge the trial court's reasons for denying his motion to suppress. Instead, Defendant challenges the trial court's denial of his later Motion for Hearing on Motion to Suppress.

      . Defendant admits that warrantless searches of residential garbage cans left at curbside that are not part of the curtilage are allowed under both the Fourth Amendment and Article I Section 14 of the Utah Constitution.


author: LEHMAN, Justice.

text:
    2002 WY 141
    SOS STAFFING SERVICES, INC., a Utah corporation, and Daniel L. Pillon, Appellants (Defendants/Third Party Plaintiffs), and Schlumberger Technology Corporation, a Texas corporation, Appellant (Third Party Defendant), v. Paul D. FIELDS, Appellee (Plaintiff).
    No. 01-93.
    Supreme Court of Wyoming.
    Sept. 24, 2002.

      Gregory C. Dyekman and Brian C. Shuck of Dray, Thomson & Dyekman, P.C., Cheyenne, WY, Representing Appellants SOS Staffing Servs., Inc. and Pillon. Argument by Mr. Dyekman. '
    Steven G. Greenlee and C. Michael Montgomery of Montgomery, Kolodny, Amatuzio, Dusbabek & Parker, LLP., Denver, CO, Representing Appellant Schlumberger Technology Corp. Argument by Mr. Greenlee.

      George Santini of Ross, Ross & Santini, L.L.C., Cheyenne, WY, Representing Appel-lee. Argument by Mr. Santini.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Justice.

[T1] This case comes to us on two certified questions from the United States District Court for the District of Wyoming:

1. Is a temporary employee entitled to "eco-employee immunity" under the Wyoming Worker's Compensation Act for injuries he allegedly caused to a co-worker while working within the seope of his employment for the same employer?
2. Is a temporary employment services provider vicariously Hable to a worker allegedly injured by a temporary employee provided by the temporary employment services provider to the worker's employer?

FACTS

[T 2] The certification order from the United States District Court sets forth the following undisputed facts:

[T3] Dan Pillon was hired as an employee by Schlumberger Technology Corporation in 1980. As of March 31, 1997, Mr. Pillon worked for Schlumberger as a senior operator. On March 31, 1997, Mr. Pillon resigned from his employment at Schlumberger so that he could access his profit sharing account in order to buy a ranch. As part of his resignation, Mr. Pillon wanted to continue working for Schlumberger, and it was agreed between Mr. Pillon and Schlumberger that he could continue to work for the company under a temporary employee arrangement.

[14] SOS Staffing Services provided temporary employment services to Schlumber-ger. SOS Staffing provided payrolling services to Schlumberger with respect to Mr. Pillon. Mr. Pillon was referred to SOS Staffing by Schlumberger to be hired and placed on the SOS "payroll." Mr. Pillon then worked for Schlumberger as a temporary employee for a time determined by Schlum-berger, and Schlumberger would pay SOS Staffing a fee from which SOS Staffing would pay Mr. Pillon. Mr. Pillon's work for Schlumberger did not change with the change in his status from regular employee to temporary employee. The nature, seope, details, manner, and method of Mr. Pillon's day-to-day work and duties did not change. He continued to work as a senior operator, with the very same duties and responsibilities as a regular employee. His typical work assignments were the same as before. He continued to be supervised by the same Schlumberger employees.

[15] SOS Staffing provided no other services to Schlumberger with respect to Mr. Pillon other than the administrative payroll-ing services. SOS Staffing did not control the nature, scope, details, manner, or method of Mr. Pillon's day-to-day work or duties while he worked for Schlumberger as a temporary employee. SOS Staffing did not select, interview, sereen, evaluate, supervise, or train Mr. Pillon. Instead Schlumberger controlled, and had the right to control, the nature, scope, details, manner, and method of Mr. Pillon's day-to-day work and duties while he worked for Schlumberger as a temporary employee. -It was Schlumberger's obligation to interview, sereen, select, refer, evaluate, supervise, and train Mr. Pillon.

[46] On November 30, 1997, Mr. Pillon was driving a Schlumberger vehicle to a well site as part of his duties as a senior operator for Schlumberger. Mr. Fields, a regular employee of Schlumberger, was a passenger in the vehicle and was traveling to the well site as part of his duties as an operator for Schlumberger. On the drive to the well site, Mr. Pillon unexpectedly encountered ice on the road, steered the Schlumberger vehicle to the side of the road, and hit a concrete culvert. As a result, the vehicle rolled on its side. Mr. Fields claims he was injured in this accident. Mr. Fields received worker's compensation benefits for these alleged injuries.

[T7] Schlumberger and SOS Staffing are separate corporations that filed separate employer reports for purposes of complying with the provisions of the Wyoming Worker's Safety and Compensation Act. On the report submitted on behalf of SOS Staffing, Daniel Pillon is listed as an employee of SOS at the time of the accident, and SOS Staffing paid premiums on his behalf to the Wyoming Worker's Safety and Compensation Division. At the time of the accident, Paul Fields was listed as an employee of Schlumberger, and Schlumberger paid premiums to the Wyoming Worker's Safety and Compensation Division on his behalf.

[18] Fields originally filed his complaint against SOS Staffing and Pillon in state court. Pillon and SOS filed a notice of removal of the action to the United States District Court for the District of Wyoming on the basis of diversity of citizenship. Once in federal district court, Pillon and SOS answered and filed a third-party complaint against Schlumberger, claiming that they were entitled to indemnification by Schlum-berger in the event it was determined that Fields was entitled to recover from them. Thereafter, Pillon, SOS, and Schlumberger moved for summary judgment. Fields filed a response which was followed by Schlum-berger's motion to certify the issues to this court. The motion to certify was unopposed, and the federal district court entered its certification order on May 2, 2001.

STANDARD OF REVIEW

[19] We review questions certified to this court pursuant to W.R.A.P. 11. We review a district court's statutory interpretation de novo. Basin Elec. Power Co-op. v. Bowen, 979 P.2d 503, 506 (Wyo.1999). The primary objective in interpreting statutory language is to ascertain and effectuate legislative intent. U S West Communications, Inc. v. Public Service Comm'n, 988 P.2d 1061, 1064 (Wyo.1999). Legislative intent is ascertained initially and primarily from the words used in the statute. Wyoming Comty. College Comm'n v. Casper Comty. College Dist., 2001 WY 86, ¶ 16, 31 P.3d 1242, 116 (Wyo.2001). We look first to the plain and ordinary meaning of the words used in the statute. Id. at 117. When the words are clear and unambiguous, a court impermissi-bly risks substituting its own views for the intent of the legislature if it attempts to interpret or construe the statute on any basis other than the language used by the legislature. Id. at 116. Where statutory language conveys a clear and definite meaning, this court neither faces the need nor acquires the license to construe the statute. U S West, at 1064 (citing Matter of SYM, 924 P.2d 985, 987 (Wyo.1996)).

[110] A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Wyoming Comty. College Comm'n, at T17T. A statute is ambiguous if it is vague, uncertain, or subject to varying interpretations. Id. While differing opinions as to the meaning of a statute are not conclusive of ambiguity, they may be evidence of ambiguity. Id. Ultimately, whether a statute is ambiguous is a matter of law to be determined by the court. Id.

[111] In interpreting statutory language, we review all parts of the statute in pari materia, giving effect to each word, clause, and sentence so that no part will be inoperative or superfluous. Matter of Interest of WJH, 2001 WY 54 ¶ 16 24 P.3d 1147, ¶ 16 (Wyo.2001). We will not interpret statutes in a manner which renders any portion meaningless or produces absurd results. Id.

DISCUSSION

Applicability of co-employee immunity -

[112] In answering the first certified question, we begin with the language contained in our own Wyoming Worker's Compensation Act, Wyo. Stat. Ann. § 27-14-101, et seq. In doing so, we are mindful of the legislative intent expressed in § 27-14-101(b) that the common law rule of "liberal construction" shall not apply and the Act is not to be given a broad liberal construction.

[113] Wyo. Stat. Ann. § 2714-104 (LexisNexis 2001), the immunity provision of Wyoming's Worker's Compensation Act, provides as follows:

(a) The rights and remedies provided in this act for an employee including any joint employee, and his dependents for injuries incurred in extrahazardous employments are in lieu of all other rights and remedies against any employer and any joint employer making contributions required by this act, or their employees acting within the scope of their employment unless the employees intentionally act to cause physical harm or injury to the injured employee, but do not supersede any rights and remedies available to an employee and his dependents against any other person.
(b) No contract, rule, regulation or device shall operate to relieve an employer from any liability created by this act except as otherwise provided by this act.
(e) This act does not limit or affect any right or action by any employee and his dependents against an employer for injuries received while employed by the employer when the employer at the time of the injuries has not qualified under this act for the coverage of his eligible employees, or having qualified, has not paid the required premium on an injured employee's earnings within thirty (380) days of the date due.

(Emphasis added.)

[114] Under subsection (a) of this seetion, an employer making the required worker's compensation contributions is absolutely immune from liability for injuries suffered by an employee in the course of extrahazardous employment. Additionally under subsection (a), the immunity available to employers extends to their employees so long as they are acting within the scope of their employment and do not intentionally cause injury to a fellow employee. Finally, subsection (a) specifies that the immunity provision leaves fully intact an injured employee's rights against any person other than his employer or another employee of his employer. The first question we must answer, then, is whether Pillon was an employee of Schlum-berger at the time of Fields' injury or was instead an "other person" within the meaning of § 27-14-104(a). In making this determination, we look to the 1997 version of the Act in effect at the time of Field's injury.

[115] The term "employee" is defined in § 27-14-102(a)(vii) (Michie 1997) of the Act as follows:

(vii) "Employee" means any person engaged in any extrahazardous employment under any appointment, contract of hire or apprenticeship, express or implied, oral or written, and includes legally employed minors and aliens authorized to work by the United States department of justice, immigration and naturalization service. "Employee" does not include:
(A) Any individual whose employment is determined to be casual labor;
(B) A sole proprietor or a partner of a business partnership;
(C) An officer of a corporation unless coverage is elected pursuant to W.S. 27-14-108(k);
(D) Any individual engaged as an independent contractor;
(E) A spouse or dependent of an employer living in the employer's household;
(F) A professional athlete;
(G) An employee of a private household;
(H) A private duty nurse engaged by a private party;
(J) An employee of the federal government;
(K) Any volunteer unless covered pursuant to W.S. 27-14-108(e);
(M) Any prisoner or probationer unless covered pursuant to W.S. 27-14-108(d)(ix);
(N) An elected public official, except for a duly elected or appointed sheriff;
(0) The owner and operator of a motor vehicle which is leased or contracted with driver to a for-hire common or contract carrier....
(P) A member of a limited lability company unless coverage is elected pursuant to W.S. 27-14-108(n).

Reading this section alone, and giving the language its plain and ordinary meaning, it would seem that Pillon was an employee within the meaning of the Worker's Compensation Act-he was a person engaged in ex-trahazardous employment under a contract of hire at the time Fields was injured and did not fall within any of the exelusions set forth in (vii)(A) through (P). However, § 27-14 102(a)(vii) cannot be read in isolation; it must be read in light of other provisions of the Act, and effect must be given to each word, clause, and sentence so that no portion is rendered meaningless or superfluous. Matter of Interest of WJH, 2001 WY 54 ¶ 16, 24 P.3d 1147.

[T16] Pillon and SOS Staffing argue in their reply brief that in determining whether Pillon is entitled to immunity under § 27-14-104, the court need look only at the definition of employee contained in the act. We do not agree. As we have said, § 27-14-104 merely extends the immunity available to employers to "their" employees; it does not create immunity for employees separate and apart from that available to their employers. If an employer is not entitled to immunity for some reason, neither are its employees. Therefore, in determining whether an employee is entitled to immunity, we must also determine whether the employer is, in fact, an employer as defined by the Act.

[T117]} WS. 27-14-102(a)(vili) 1997) provides as follows: (Michie

(viii) "Employer" means any person or entity employing an employee engaged in any extrahazardous occupation or electing coverage under W.S. 27-14-108(J) and at least one (1) of whose employees is de-seribed in W.S. 27-14-3801. "Employer" includes:
(A) The department of employment for Federal Job Training Partnership Act participants if that participation does not otherwise establish a covered occupational arrangement between the employer and employee relationship;
(B) The governmental entity for which recipients of public assistance perform work if that work does not otherwise establish a covered employer and employee relationship;
(C) The governmental entity for which volunteers perform the specified volunteer activities under W.S. 27-14-108(e);
(D) The governmental entity for which prisoners and probationers work or perform community service under W.S. 27-14-108(d)(ix) or (xy);
(E) An owner-operator of a mine at which any mine reseue operation or training occurs;
(F) A temporary service contractor for a temporary worker;
(G) Any person, contractor, firm, association or corporation otherwise qualifying under this paragraph as an employer and who utilizes the services of a worker furnished by another contractor, joint employer, firm, association, person or corporation other than a temporary service contractor, joint employer, independent contractor or owner and operator excluded as an employee under sub-paragraph (a){vil)(O) of this section;
(H) Any employer otherwise qualifying under this paragraph as an employer and participating in a school-to-work program approved by the department of employment, any local school district board of trustees, community college district board of trustees or the department of education, and the employer previously elected coverage in writing pursuant to W.S. 27-14-108(m).

(Emphasis added.)

[118] Giving the language in the section its plain and ordinary meaning, it is clear that a temporary service contractor is the "employer" of a temporary worker for purposes of the Worker's Compensation Act. Subsection (F) expressly provides that a temporary service contractor is the employer for a temporary service worker. Consistent with subsection (F), subsection (G) clearly provides that the term "employer" includes anyone using the services of a worker furnished by another, except in the case of a temporary service contractor furnishing the services of a worker to another. In the latter case, unlike other situations involving workers furnished to another, the temporary service contractor is the "employer" for Worker's Compensation pursuant to the plain language of subsection (F). Section 27-14-102(a)(xxv) (Michie 1997) further clarifies subsections (F) and (G) by defining "temporary service contractor" as "any person, firm, association or corporation conducting a business that employs individuals directly for the purpose of furnishing services of the employed individuals on a temporary basis to others."

[119] Schlumberger, Pillon, and SOS Staffing cite Franks v. Olson, 975 P.2d 588 (Wyo.1999) as support for their argument that Pillon is a co-employee and immune from liability under Wyoming's Worker's Compensation Act. However, Franks was decided under the 1992 version of the Act which did not contain the temporary service contractor language contained in the Act at the time of Field's injury. Absent the specific language added in 1995 defining temporary service contractors as the employer, the court looked to the definitions of employee and employer contained in the 1992 version and, based upon those definitions, concluded that Olson was a co-employee and immune from liability. Because Franks was decided under an older version of the Act which did not include the current temporary service contractor language, the case is not relevant to our determination.

[120] Giving the applicable statutory language its plain and ordinary meaning, SOS Staffing was a temporary service contractor pursuant to § 27-14-102(a)(xxv) and was Pil-lon's employer pursuant to § 27-14-102(a)(vii)(F). Given the very specific language of W.S. 27-14-102(vili)(G) excluding temporary service contractors, Schlumberger was not, and by express statutory directive could not be, Pillon's employer for purposes of the Worker's Compensation Act. The conclusion that Schlumberger was not Pillon's employer as that term is expressly and very specifically defined in Wyoming's worker's compensation statutes compels the further conclusion that the immunity available to Schlumberger does not extend to Pillon. As we have said previously, Pillon is entitled to immunity only to the extent that immunity is available to his employer. Wyo. Stat. Ann. § 27-14-104(a). Stated differently, employee immunity is merely an extension of the employer immunity. Pillon's employer, SOS Staffing, has no immunity from liability for injuries to Fields because SOS Staffing paid no premiums on his behalf, and he is not an SOS Staffing employee. SOS Staffing having no immunity from liability for Fields' injuries, Pillon likewise has no such immunity.

[121] In reaching this result, we are aware that many legal authorities and jurisdictions which have addressed the issue have reached the opposite result. Restatement, Second, Agency § 227 (1958) states that "[a] servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services." 80 C.J.S., Employers' Liability, § 175 (1992) states "[aln employee of one employer who is lent to, and becomes subject to the control of, another employer is generally regarded, as far as concerns the application of the fellow-servant rule, as the employee of the employer to whom he is lent." Black's Low Dictionary (Ith ed.1999) similarly defines "employee" as "a person who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance." Black's specifically acknowledges that the employer of an employee borrowed from another may be entitled to assert immunity under worker's compensation laws in some jurisdictions. While we are aware of these authorities, we are constrained by the specific language in Wyoming's worker's compensation statutes to hold that Pillon is not an employee of Schlumberger and for that reason Schlumberger's immunity from liability for Fields' injuries does not extend to Pillon.

Vicarious liability of SOS Staffing

[122] Certified question two asks us to determine whether a temporary employment services provider is vicariously liable to a worker injured by a temporary employee provided by the temporary employment service to the worker's employer. We impute vicarious liability to employers for the acts of their employees where the employer controls the details of the employee's work activities. State ex rel. Workers' Safety & Compensation Div. v. Sparks, 973 P.2d 507, 511 (Wyo.1999). Vicarious liability does not attach where the employer retains no right of control. Id.

[123] Here, the certified facts are that SOS Staffing provided no services with respect to Pillon except administrative payroll-ing services. SOS Staffing did not control the nature, scope, details, manner, or method of Pillon's day-to-day work or duties while he worked for Schlumberger as a temporary employee. Schlumberger controlled and had the right to control the nature, scope, details, manner, and method of Pillon's day-to-day work and duties while he worked for Schlum-berger. On the date of the injury, Pillon was driving a Schlumberger vehicle to a well site as part of his duties as a senior operator for Schlumberger when he encountered ice on the road, steered the vehicle to the side, and hit a concrete culvert, The vehicle rolled on its side, and Fields was injured. Under these facts, we cannot impute any negligence on the part of Pillon to SOS Staffing.

CONCLUSION

[124] We answer the certified questions as follows:

1. Schlumberger was not Pillon's employer at the time of Field's injuries under the very specific language of Wyoming's Worker's Compensation Act. Pillon is not, therefore, entitled to immunity from liability for Fields' injuries.
2. SOS Staffing did not retain control of Pillon's work activities while hired out as a temporary worker for Schlumberger and is not, therefore, vicariously liable for Field's injuries.


author: GOLDEN, Justice.

text:
    2002 WY 142
    DC PRODUCTION SERVICE, Appellant (Petitioner), v. WYOMING DEPARTMENT OF EMPLOYMENT, Employment Tax Division; and the Wyoming Unemployment Insurance Commission, Appellee (Respondent).
    No. 01-23.
    Supreme Court of Wyoming.
    Sept. 24, 2002.

      Timothy C. Kingston of Graves, Miller & Kingston, P.C., Cheyenne, Wyoming, Representing Appellant.
    Gay Woodhouse, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Gerald L. Laska, Senior Assistant Attorney General; William L. Weaver, Special Assistant Attorney General, Representing Appellee Argument by Mr. Weaver.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument

   GOLDEN, Justice.

[T1] Following a hearing, the hearing examiner decided that, for purposes of paying unemployment insurance premiums under Wyoming's employment security law, DC Production Services, Inc., (DC) was the employer of sixteen flow testers who provided services to DC's oil company clients. The sole issue in this case is whether the Wyoming Unemployment Insurance Commission correctly determined that flow testers were employees rather than independent contractors. We affirm.

ISSUES

[12] DC presents the following issue for our review:

Were persons who provided services to the Appellant's customers independent contractors or employees?

The Commission presents the following issue:

The Unemployment Insurance Commission (Commission) held that services provided by 16 flow testers to DC Production Service in 1999 are covered employment under the Wyoming Employment Security Law (Act), making payments to flow testers reportable and taxable under the Act. Was the decision of the Commission in accordance with law pursuant to Wyo. Stat. Ann. § 27-8-104(b) (Lexis 1999) and supported by substantial evidence as required by Wyo. Stat. Ann. § 16-3-114(c)@ii)(A) and (E) (Lexis 1999)7

FACTS

[13] DC is an oil field service company that rents flow testing equipment to oil companies and contracts with oil companies to provide oil well flow testing services. The persons providing the flow testing services to the oil companies are known as "flow testers." DC considers flow testers as independent contractors and has each sign a "Master Work Agreement" that contains a number of provisions referring to the flow testers as independent contractors and not DC employees and establishing a contractor relationship. DC also requires that the flow testers sign a "Notice to Independent Contractors," which provides:

DC Productions is in the business of renting flow testing equipment to oil companies, and upon request by oil companies may send personnel to monitor it. These personnel are independent contractors known as flow testers/pumpers. DC Productions does not have supervisory control over the independent contractors; they report directly to the oil company or companies in which they are testing for. As a flow tester/pumper, among other things, you will be expected to provide your own transportation, telephone, tools, liability insurance naming DC Production as an additional insured, licenses, and any other expenses occurred [sic] in the production of this income. You will also be expected to pay all of your own taxes including self-employment taxes. and file all returns required.

[T4] In 1999, DC provided sixteen flow testers to its oil field clients. Upon request by an oil company, DC contacted flow testers and contracted with them based upon availability and negotiated prices for each assignment. If DC and a contacted flow tester could not agree on a price, then both were free to decline offers. A flow tester who appeared on site received directions from the oil company regarding the specific site's requirements and provided his own replacements, transportation and insurance. DC had no further control over the flow testers activities. After completing a job, the flow tester submitted an invoice to DC for a previously agreed amount. DC billed that amount to the particular oil company along with a surcharge. At the end of the year, DC provided each of the flow testers with a Form 1099 for the amount of payments received.

[15] On March 20, 2000, the Wyoming Department of Employment issued a notice of audit to DC. On May 17, 2000, the Department issued a joint audit and procedure report that found that some sixteen "flow testers" who provided services to customers of DC were employees for the purposes of assessing unemployment insurance premiums against DC, and DC objected. A contested case hearing was held, and the hearing examiner issued a decision that upheld the joint audit and procedure report. That decision stated:

1. DC argues its flow testers are not employees because its clients, and not DC, exercise control and direction of the details of the flow tester's performance of services. The Examiner rejects DC's argument. Under the Wyoming Employment Security Law, if the worker is directed or controlled in the details of performance of services by anyone other than himself, he is not free from direction and control. In this matter, not only do the clients actually direct and control the flow testers, but the Master Work Agreement explicitly requires flow testers to submit to the control and direction of DC's clients.
2. DC argues that its flow testers are not employees because they represent themselves to the public as independent contractors. To support this argument, DC points to the fact that it reports earnings of the flow testers to the Internal Revenue Service by way of 1099 forms and to the fact that it receives invoices from the flow testers for payment for the services they provide. The Examiner rejects the argument of DC. As in the Hat Six,, Inc., decision, the public has no access to the IRS filings of DC or of the flow testers. In addition, the invoices submitted by the flow testers to DC are internal payment documents. The documents relied upon DC to support its argument, therefore, do not "protect the potential customer (DC's clients) by providing notice of the status of the (flow tester) ..." DC produced no evidence of any representation by any flow tester to a third party that he, the flow tester, was self-employed or an independent contractor.
8. DC argues that the Hearing Examiner must follow the Internal Revenue Service's definition of independent contractor instead of the definition enacted as part of the Wyoming Employment Security Law. The Examiner rejects DC's argument. In Laramie Cabs, the Wyoming Supreme Court adopted the holding of the Arizona Court of Appeals that to rely on the definition of the Internal Revenue Service was an error by the trial court. The Wyoming Supreme Court expressly stated that the only definition the Examiner can apply is that which appears in the Wyoming Employment Security Law.

The hearing examiner concluded that the flow testers were employees to whom wages had been paid and were not independent contractors. DC appealed that decision to the Unemployment Insurance Commission, which revised one factual finding and affirmed the decision. DC's petition for review to the district court was certified to this Court pursuant to W.R.A.P. 12.09.

DISCUSSION

Standard of Review

[16] The Wyoming Administrative Procedure Act governs this Court's review of decisions by the Commission. Hat Siz Homes, Inc. v. State, Dept. of Employment, Unemployment Ins. Comm'n, 6 P.3d 1287, 1290 (Wyo.2000).

We recently held that the substantial evidence test is the appropriate standard of review in appeals from Wyoming Administrative Procedures Act contested case proceedings when factual findings are involved and both parties submit evidence. Newman v. Wyoming Workers' Safety and Compensation Division, 2002 WY 91, ¶ 22 [49 P.3d 163] (Wyo.2002). We further held, that when only the party with the burden of proof submits evidence in the contested case proceeding and that party does not ultimately prevail, the arbitrary or capricious standard governs the judicial review of that agency decision. Id. Even if the factual findings are found to be supported by substantial evidence, the ultimate agency decision may be found to be arbitrary or capricious for other reasons. Id. at 128. We do not examine the record only to determine if there is substantial evidence to support the board's decision, but we must also examine the conflicting evidence to determine if the hearing examiner could have reasonably made its finding and order upon all of the evidence before it. Id. at 124, 125. Because both parties presented cases-in-chief, we apply the substantial evidence standard.

Kuntz-Dexter v. State ex rel. Wyo. Workers' Safety and Comp. Div., 2002 WY 101, ¶ 10, 49 P.3d 190, ¶ 10 (Wyo.2002).

Applicable Statutes

[17] DC does not dispute the hearing examiner's findings of fact, but contends that the legal conclusions based on the factual findings are not in accordance with law. An agency's conclusion of law is entitled to no deference from this Court,. We will affirm an agency's legal conclusion only if it is in accordance with the law. Haynes v. State ex rel. Wyoming Workers' Compensation Div., 962 P.2d 876, 878 (Wyo.1998).

[T8] DC first objects to the hearing examiner's conclusion that because the oil companies could control the flow testers' on-site work, the statutory requirement of independence was not met. DC contends that the oil companies' control is that of a third party paying for the services and the statute does not apply to third party control. DC next objects to the conclusion that the flow testers did not hold themselves out to the public as independent contractors, contending that its client oil companies were aware that the flow testers were independent contractors. The applicable statute is Wyo. Stat. Ann. § 27-3-104 (LexisNexis 2001), entitled " 'Employment' defined; generally; exceptions" and reads as follows:

(a) As used in this act, "employment" means service:
(i) Performed by an employee defined under 26 U.S.C. § 3306(i) including service in interstate commerce, except 26 U.S.C. § 3121(d)(2) does not apply;
(i) Subject to any federal tax against which credit may be taken for contribution payments into any state unemployment fund;
(ii) Required to be employment under this act as a condition for full tax credit against the tax imposed by 26 U.S.C. § 3301 through 3311; and
(iv) Otherwise specified under W.S. 27-3-104 through 27-3-108.
(b) An individual who performs service for wages is an employee for purposes of this act unless it is shown that the individual:
(i) Is free from control or direction over the details of the performance of services by contract and by fact;
(ii) Repealed by Laws 1991, ch. 158, § 1.
(i), (iv) Repealed by Laws 1995, ch. 121, § 8.
(v) Represents his services to the public as a self-employed individual or an independent contractor; and
(vi) May substitute another individual to perform his services.

[T9] It is uncontested that in 1999 DC paid a total of $217,481.29 to flow testers for their services which the Commission contends were wages paid to employees. We have said that the statutory definition of employment determines whether a worker may be eligible for unemployment benefits under the Act. Hat Six Homes, 6 P.3d at 1292; Scoff v. Fagan, 684 P.2d 805, 810 (Wyo.1984). A worker is covered by the Act unless the hiring party establishes that the worker's services satisfy all three specified conditions of non-employment. Hat Six Homes, 6 P.3d at 1292; Unemployment Comp., Comm'n of Wyoming v. Mathews, 56 Wyo. 479, 497-98, 111 P.2d 111, 118 (1941); Employment Sec. Comm'n of Wyoming v. Laramie Cabs, Inc., 700 P.2d 399, 404 (Wyo.1985). DC has the burden of proving that the cireumstances of employment were such that the elements of § 27-8-104(b) were satisfied. Hat Six Homes, supra, at 1292.

[110] DC contends that it met the requirements of § 104(b)G), not controlling or directing the details of the flow tester's performance of services by contract and by fact, by providing the Master Work Agreement and not subjecting the flow testers to supervision. It argues that the statutorily required independence of the flow testers was not impaired by any specific on-site requirements relayed to the flow testers by the oil companies because the statute addresses this requirement to the parties of the contract and not to third persons. The Master Work Agreement stated in relevant part:

7. Sub Contractor [sic] looks to Oil Co. for control and direction while on location. Oil Company has the right to request or refuse contractor.... If at any time the Oil Company shall become dissatisfied with the performance of contractor as to any particular project work, the Oil Company shall have the right to terminate contractor's work by notice to DC who will relay that to the contractor and DC may either complete the project work itself or contract its completion to a third party.

[111] Under this provision, the Master Work Agreement acts to deprive the flow testers of control or direction over the details of the performance of services by contract and by fact by specifically stating that the flow testers agree to DC's requirement that they shall be subject to the control of an oil company. Based on this language the Commission concluded that the contract deprived the flow testers of control over the details of their work. We agree with DC that this single sentence of one provision is not determinative that the flow testers were deprived of control over the details of their work. All of the cireumstances of employment must be examined. See Hat Six Homes, 6 P.3d at 1292. The evidence of many factors must be considered to decide whether DC controlled or directed the flow testers. See Carpetland U.S.A., Inc. v. Illinois Dept. of Employment Sec., 2002 WL 1342230 (Ill., June 20, 2002)(discussing twenty-five factors to determine whether an independent contractor is "free from control or direction over the performance"). The hearing examiner's failure to consider all of the cireumstances of this particular employment situation leaves us unable to agree with its legal conclusion on this statutory requirement.

[112] We, however, do affirm the legal conclusion that DC failed to satisfy the see-ond statutory requirement, proof that the flow testers represented their services to the public as self-employed individuals or as independent contractors. DC contends that its client oil companies that received services from its approved list of flow testers are the "public" intended under the statute. It further contends that these client oil companies knew that the flow testers were independent contractors available to perform services directly for them. However, assuming without deciding that "public" can be so narrowly construed, we find that there is a lack of sufficient evidence in the record which would demonstrate any instance in which a flow tester represented himself as an independent contractor to DC's client oil companies. DC contends that its office manager testified that the flow testers' invoices were submitted to the oil companies and those oil companies were thus aware that the flow testers were independent contractors, but the record does not reflect either that the invoices themselves were submitted to the oil companies, or that the oil companies were aware that they could independently contract with any of the flow testers. The testimony reflected only that the office manager would bill the oil companies based upon the invoice information.

[113] The decision that DC did not overcome the presumption of employment set forth in the statute, by failing to prove that requirements of § 27-3-104(b) were met is not arbitrary or capricious, and not an abuse of discretion. We hold that DC did not sustain its required burden of proving that the flow testers were independent contractors and not its employees.


author: CARPENETI, Justice.

text:
    In the Matter of S.H.
    No. S-9633.
    Supreme Court of Alaska.
    Aug. 9, 2002.
    Rehearing Denied Oct. 8, 2002.

      Phillip Paul Weidner, Weidner & Associates, Inc., Anchorage, for Appellant.
    Thomas V. Van Flein, Clapp, Peterson & Stowers, LLC, Anchorage, for Clapp, Peterson & Stowers.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

SH. was adjudged to be in need of a special conservator in 1997 regarding litigation he was pursuing against Anchorage Refuse,; Inc. After we affirmed the appointment of a conservator in 1999, S.H.'s conservator moved to finalize a settlement entered into in 1997. At that time, S.H. petitioned the superior court to terminate the conservatorship, claiming that he was competent to manage his affairs. The superior court denied the petition to terminate, entered the settlement, and dismissed S.H.'s litigation against Anchorage Refuse. S.H. appeals the superior court's refusal to hold a hearing on the need for a conservatorship and its refusal to void the actions of the conservator settling the Anchorage Refuse litigation. Because the conservator entered into the settlement in 1997 and our decision in S.H. I was a ratification of that settlement, we affirm the superi- or court's entry of settlement and dismissal of the litigation.

II. FACTS AND PROCEEDINGS

This case is before us for a second time. It concerns the superior court's actions following our remand in In re S.H. (S.H.I.).

A. In re S.H.

After working at Anchorage Refuse, Inc. (ARI) from 1991 to 1998, SH. sued ARI in April 1995 alleging, among other things, that his fellow employees sadistically mistreated him. His attorneys in that action were from the law firm of Clapp, Peterson, & Stowers

(CPS) Between May 1995 and December 1996, CPS attorneys Mareus Clapp and Thomas V. Van Flein grew uneasy with S.H.'s increasing obsession with the case SH. began showing signs of instability, "including irrational behavior, paranoia, inclinations toward gratuitous dismissal of his personal injury suit, a tendency to threaten his own witnesses, the desire to initiate direct and inappropriate dealings with opposition counsel and the judge, and a marked lack of confidentiality."

In 1996 and 1997 psychiatric experts examined S.H. in connection with the ARI litigation and because CPS was concerned with S.H.'s The majority of these doe-tors concluded that S.H. had a mental impairment that made him unable to think rationally at times. Only one doctor found S.H. to be capable of dealing rationally with the settlement proceedings.

Mediation between S.H. and ARI began in December 1996, and led to a $500,000 settlement offer by ARIS S.H. refused to accept the offer, however, believing his case was worth $2 million. CPS then filed a "Petition for Appointment of Limited Conservator/Guardian Ad Litem of a Person" due to its belief that SH. was incapable of handling his affairs. Superior Court Judge Karen L. Hunt appointed Ernest Schlereth to act as S.H.'s attorney in the conservatorship/guard-ianship proceeding on December 30. In March 1997 Phillip Paul Weidner replaced Schlereth as S.H.'s attorney in the conserva-torship/guardianship proceeding.

Master Andrew Brown commenced a hearing on the conservatorship/guardianship petition in July 1997, at which time S.H. requested a jury trial. Master Brown denied the request for a jury trial and issued his report in August after a three-day hearing. He recommended that a special conservator be appointed to act on S.H.'s behalf for the purposes of the ARI litigation and that the costs of that conservator be imposed on CPS. The superior court adopted Master Brown's recommendation and appointed Paul Cossman as S.H.'s special conservator. After reviewing S.H.'s case against ARI, Coss-man concluded that it was in S.H.'s best interests to accept the $500,000 settlement offer and approved the settlement. The settlement funds were placed in the court registry in order to allow S.H. to appeal the decision to appoint a special conservator and CPS to eross-appeal the imposition of the conservator's costs on CPS.

In August 1999 we decided S.H. I. We held that a conservator has the authority to settle a lawsuit; that the court properly considered S.H.'s "ability to make litigation-related decisions, as opposed to his ability to make a rational decision in general"; and that an inability to manage one's property need not be long-term to justify a conservatorship. We further held that the conservator has the authority to waive the protected person's jury trial rights, reasoning that otherwise, the protected person, who had "already [been] deemed incapable in the law's eyes," would retain control of the case. Regarding S.H.'s request for a jury trial on the conservatorship/guardianship petition, we held that his request, coming more than twenty days after service of the first pleading , and not before the first hearing, was untimely under Alaska Probate Rule 11. Finally, we held that it was improper to impose the costs of the conservatorship on CPS and remanded the case to the superior court to impose those costs in accordance with AS 13.26.230.

B. On Remand

Judge Hunt conducted the remand hearing on October 7, 1999. On the remanded cost issue, she directed CPS to file a proposed order imposing the conservatorship costs on S.H., and indicated that she would refer the case back to the probate master, who had handled the conservatorship, for all further proceedings. At this time, Weidner indicated that SH. was fully competent to handle the ARI litigation. CPS filed stipulations for dismissal with prejudice and to distribute settlement funds that same day.

Prior to the hearing before the probate master, S.H. filed a demand for jury trial and an objection to the stipulations for dismissal with prejudice and distribution of settlement funds filed by CPS, Cossman, and ARI. At the hearing on October 27, 1999, Master Brown indicated that his responsibilities were limited, by our remand instructions, to the imposition of conservatorship costs. He approved the costs submitted by CPS and Cossman and told S.H. that, if he wished to change the conservatorship order, he needed to file a written motion.

In November 1999 S.H. filed an objection to Master Brown's failure to address his objections to the stipulations entered into by CPS, Cossman, and ARI. S.H. also filed a motion that month to set aside the conserva-torship and to void the conservator's decisions. Judge Hunt denied the motion to set aside the conservatorship and issued an order imposing the conservator's costs on S.H. and reaffirming the conservator's authority to settle the ARI litigation.

As the ARI litigation was settled and an order of dismissal was signed by Superior Court Judge Peter A. Michalski in November 1999, CPS refiled the stipulation for the distribution of settlement proceeds in March 2000. In April, Judge Hunt signed the order distributing settlement funds and terminating the appointment of the conservator. S.H. appeals.

III. STANDARD OF REVIEW

[1-4] We apply our independent judgment to questions of statutory interpretation. In interpreting statutes, we look to the meaning of the language, the legislative history, and the purpose of the statute in question." Whether a trial court acted inconsistently with our mandate is a question of law. We "adopt the rule of law that is most persuasive in light of precedent, reason and policy."

IV. DISCUSSION

A. Weidner Has the Authority To Act as S.H.'s Counsel in this Appeal.

CPS argues that SH. I granted S.H.'s conservator the authority to make litigation decisions on S.H.'s behalf. It contends that, because Weidner never obtained the approval of the conservator to file the present action, the appeal should be dismissed. S.H. responds that Weidner's representation is proper and protected by the conservatorship statutes.

CPS cites In re Conservatorship of Nelsen as support for its argument that Weid-ner has no authority to represent S.H. In Nelsen, the Minnesota court of appeals held that the conservatee could not contractually retain an attorney without the approval of either the conservator or the court. This reasoning, CPS argues, should apply to the instant case.

The court in Nelsen, however, based its decision on the conservatorship order, which required the conservator to approve any contract, except for necessities, which the con-servatee might make. The order appointing S.H.'s conservator was not as broad as the order in Nelson. Rather than granting the conservator authority over all contracts, S.H.'s conservator was only given the authority to make "all necessary decisions on [S.H.'s] behalf in the ARI Case, including but not limited to accepting a settlement offer in the ARI Case or proceeding to trial with that litigation." Given the more limited nature of S.H.'s conservatorship, Nelsen does not apply.

Furthermore, AS 18.26.195 grants a prospective protected person the right to counsel in the conservatorship proceedings. Weidner is S.H.'s counsel under this statute, having substituted in for the original counsel appointed for S.H. by the court. While Weidner could not take part in any aspect of the ARI litigation, he is properly representing S.H. in the probate proceedings, including S.H.'s petition to terminate the conserva-torship and this appeal.

B. SH. I Controls this Case.

S.H. argues that the conservator did not have the authority to settle the case with CPS and ARI, as he petitioned for termination of his conservatorship. SH. further argues that the superior court erred in granting the order for distribution of settlement funds and terminating the appointment of the conservator.

In 1997 the special conservator stated that it was in S.H.'s best interest to accept the settlement offer of $500,000 and that S.H.'s chances of recovering a judgment in excess of that offer were "basically nonexistent." Accordingly, the conservator approved the settlement on behalf of S.H. The conservator, CPS, and ARI then "stipulated to interplead the settlement funds." The settlement monies were deposited with the court registry and awaited distribution pending S.H.'s appeal to this court.

Our decision upholding the appointment of a conservator and ratifying his authority to enter into the settlement with ARI was announced in August 1999. On October 7, 1999 the special conservator and CPS filed a stipulation for distribution of settlement funds. That same day, SH. petitioned to have the conservatorship revoked. However, as the settlement had been entered into in 1997, S.H.'s claim had already been disposed of by the conservator. When this court upheld the conservatorship, the settlement funds in the court registry became S.H.'s. As such, with the distribution of funds, SH. no longer bad an interest in the ARI litigation and the conservatorship was to end by the order of the appointment.

vy, CONCLUSION

Because S.H.'s claims were settled by the conservator in 1997 prior to his petition for termination, the superior court did not err in failing to hold a hearing on S.H.'s petition. Accordingly, we AFFIRM the decisions of the superior court.

BRYNER, Justice, not participating.

      . 987 P.2d 735 (Alaska 1999).

      . Id. at 737. SH. also named individual ARI officers and employees in that suit. I4.

      . Id.

      . 1d.

      , Id. (internal footnotes omitted).

      . Id.

      . Id. at 73, 8.

      . 14.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . 1:11.

      . Id.

      . Id.

      . Id. at 739-40 (internal quotation marks omitted).

      . Id. at 741.

      . Id. at 742.

      . Id.

      . Alderman v. Iditarod Props., Inc., 32 P.3d 373, 380 (Alaska 2001).

      . Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787 (Alaska 1996).

      . Gaudiane v. Lundgren, 754 P.2d 742, 744 (Alaska 1988).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . 587 NW.2d 649 (Minn.App.1999).

      . Id. at 650.

      . Id. at 651.

      . AS 13.26.195(b) states in part: "Unless the person to be protected has counsel of the person's own choice, the court must appoint a lawyer to represent the person who then has the power and duties of a guardian ad litem."

      . S.H. I, 987 P.2d at 738.

      . Id.

      . Id.