text:
    2002 UT 75
    STATE of Utah, Department of Natural Resources, Division of Wildlife Resources, Plaintiff and Appellant, v. HUNTINGTON-CLEVELAND IRRIGATION CO., Defendant and Appellee.
    No. 20000413.
    Supreme Court of Utah.
    July 30, 2002.
    Rehearing Denied July 30, 2002.

      Mark L. Shurtleff, Att'y Gen., Michael M. Quealy, Norman K. Johnson, Martin B. Bushman, Asst. Att'ys Gen., Salt Lake City, for plaintiff.
    J. Craig Smith, David B. Hartvigsen, Salt Lake City, for defendant.
   RUSSON, Justice:

{1 The Utah Department of Wildlife Resources ("DWR"), a shareholder in the Huntington-Cleveland Irrigation Company ("HCIC"), filed a complaint to challenge unequal share assessments levied by HCIC and the reduction of DWR's voting rights. The trial court dismissed the complaint, finding that the statute of limitations precluded the claims asserted therein. We reverse and remand.

BACKGROUND

12 When determining whether a trial court properly dismissed an action, we accept the factual allegations in the complaint as true and consider them, and all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. See, e.g., Riddle v. Perry, 2002 UT 10, 1 2, 40 P.3d 1128; Clark v. Deloitte & Touche LLP., 2001 UT 90, 12, 34 P.8d 209. We recite the facts accordingly.

183 HCIC, a Utah mutual nonprofit irrigation company, delivers water to its shareholders and charges each shareholder an annual assessment relating to the amount of water the shareholder receives from the HCIC canal system. DWR is an HCIC shareholder and uses HCIC water to cultivate crops that are not harvested but are left onsite for wildlife forage. This dispute arises out of the assessment of HCIC shares held by DWR.

{4 In 1977, HCIC amended its articles of incorporation to permit unequal share assessments. The amended articles instructed the HCIC board of directors to consider the purpose of water use when making assessments.

15 Ten years later, in 1987, HCIC again amended its articles of incorporation. This amendment modified the rights of shareholders who used the water received under their shares for "municipal and industrial use." Under the amended articles, the voting rights of such shareholders were limited to voting only at HCIC's annual meeting to approve newly elected directors. The amended articles also directed the board to levy an additional assessment on shares used for municipal and industrial purposes, increasing the assessment on those shares.

T6 In January 1995, the HCIC board of directors adopted bylaws that defined the terms "irrigation use" and "municipal and industrial use" as used in the 1987 amended articles of incorporation. As defined in the bylaws, "irrigation use" means "water applied to land for crop or livestock-feed production purposes for pecuniary gain," and "municipal and industrial use" refers to all other uses not classified as "irrigation use."

T7 As a result, in February 1995, HCIC informed DWR that it could no longer vote a portion of its shares at HCIC meetings for the election of officers because those shares had been reclassified as "municipal and industrial use" pursuant to the 1987 change in the articles of incorporation and the 1995 adoption of bylaws. DWR protested this reclassification. On October 11, 1995, DWR received the first annual assessment under the amended articles of incorporation and bylaws that reclassified some of DWR's shares as municipal and industrial shares ("M & I shares"), and left the remaining shares as irrigation shares. The shares reclassified as M & I shares were subject to the additional assessment and the reduced voting rights.

T8 In 1996, HCIC reduced the number of DWR's shares it considered to be M & I shares. However, in 1999, HCIC reconsidered and determined that all of DWR's shares were M & I shares, subject to decreased voting rights and increased annual assessments, because DWR's crops irrigated by the HCIC canal system failed to meet the pecuniary gain requirement in order for DWR's water use to be classified as "irrigation use." From 1995 to 1998, DWR paid its annual assessment under protest. Ultimate ly, DWR filed a complaint on June 14, 1999, which it then amended on August 16, 1999, asking the trial court to hold that none of its shares should be classified as M & I shares. On September 3, 1999, HCIC moved to dismiss DWR's amended complaint under Utah Rule of Civil Procedure 12(b)(6), arguing, inter alia, that the statute of limitations had run.

T9 On April 20, 2000, the trial court dismissed DWR's complaint, concluding that the applicable statutes of limitation had expired. Specifically, the trial court found (1) that each of DWR's claims was based either upon an implied contract between DWR and HCIC or upon alleged violations of the Utah Code, and (2) that all contract and statutory violations occurred no later than February 1995. Accordingly, the trial court held that the four-year statute of limitations in section 78-12-25(1) of the Utah Code that applies to claims based upon an implied contract, as well as the three-year statute of limitations in section 78-12-26(4) that applies to liability predicated upon Utah statutes, precluded DWR from pursuing all of its causes of action.

1 10 DWR appeals the trial court's dismissal of its amended complaint. The primary issues on appeal are whether DWR's claims are barred by the statutes of limitation in sections 78-12-25(1) and 78-12-26(4) of the Utah Code.

STANDARD OF REVIEW

The determination of whether the trial court properly concluded that the statute of limitations expired to bar DWR's action is a question of law that we review for correctness. Quick Safe-T Hitch, Inc. v. RSB Sys. L.C., 2000 UT 84, ¶ 10, 12 P.3d 577; see also State v. Lusk, 2001 UT 102, ¶ 11, 37 P.3d 1103.

ANALYSIS

I. STATUTE OF LIMITATIONS

A. Implied Contracts

¶ 12 The resolution of whether the statute of limitations expired on DWR's implied contract claims depends upon when the four-year limitation period commenced. This determination hinges upon the construction of Utah Code section 78-12-25(1). The trial court determined that the four-year limitation period began running no later than February 1995 when HCIC informed DWR that it could no longer vote a portion of its shares under the January 1995 bylaws. The trial court's interpretation of this statute is a question of law that we review for correctness. State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, ¶ 8, 44 P.3d 680.

118 In interpreting statutes, our paramount concern is to give effect to the legislative intent, manifested by the plain language of the statute. State v. Lusk, 2001 UT 102, ¶ 19, 37 P.3d 1103; Regal Ins. Co. v. Bott, 2001 UT 71, ¶ 10, 31 P.3d 524; City of Hildale v. Cooke, 2001 UT 56, ¶ 36, 28 P.3d 697. Unless a statute is ambiguous, we will not look beyond the plain language of the statute. Lusk, 2001 UT 102 at ¶ 19, 37 P.3d 1103. In doing so, we " 'presume that the legislature used each word advisedly and [we] give effect to the term according to its ordinary and accepted meaning.' '' C.T. v. Johnson, 1999 UT 35, ¶ 9, 977 P.2d 479 (quoting Nelson v. Salt Lake County, 905 P.2d 872, 875 (Utah 1995)), and "we seek 'to render all parts [of the statute] relevant and meaningful,' '' Hall v. State Dep't of Corr., 2001 UT 34, ¶ 15, 24 P.3d 958 (quoting Millett v. Clark Clinic Corp., 609 P.2d 934, 936 (Utah 1980)).

1 14 Unless otherwise provided, a civil action "may be commenced only within the periods prescribed in [chapter twelve of title seventy-eight], after the cause of action has accrued." Utah Code Ann. § 78-12-1 (1996); see also Davidson Lumber Sales, Inc. v. Bonneville Inv., Inc., 794 P.2d 11, 19 (Utah 1990). The plain language of section 78-12-25(1) is unambiguous regarding when the four-year limitation period begins to run on implied contracts. That section provides:

An action may be brought within four years:
(1) wpon a contract, obligation, or liability not founded «upon an instrument in writing; also on an open account for goods, wares, and merchandise, and for any article charged on a store account; also on an open account for work, labor or services rendered, or materials furnished; provided, that action in all of the foregoing cases may be commenced at any time within four years after the last charge is made or the last payment is received ....

Utah Code Ann. § 78-12-25(1) (emphasis added).

115 The plain language unequivocally provides that an action "may be commenced at any time within four years after the last charge is made or the last payment is received" ("statute of limitations trigger phrase") in all of the situations listed in section 78-12-25(1), which are actions on an open account on goods, on an open account for work or services rendered, or "upon a contract, obligation, or liability not founded upon an instrument in writing.'' Id.; see also CIG Exploration, Inc. v. State, 2001 UT 37, ¶¶ 9-10, 24 P.3d 966. The legislature's use of the phrase "in all the foregoing cases" clearly indicates the legislature's intent that the statute of limitations trigger phrase apply to all cases explicitly enumerated in the statute, including implied contracts. Construing the statute otherwise would render the last phrase of the "statute superfluous or inoperative," contrary to Utah law. Hall, 2001 UT 34 at ¶ 15, 24 P.3d 958.

116 Moreover, this interpretation of seetion 78-12-25(1) comports with "[an application of 'elementary rules of punctuation and grammar.' '' State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, ¶ 13, 44 P.3d 680 (quoting Newspaper Agency Corp. v. Auditing Div. of State Tax Comm'n, 938 P.2d 266, 271 (Utah 1997)). In section 78-12-25(1), the punctuation, which we do not arbitrarily ignore, bolsters the construction of the statute that the limitation period commences either when the final charge is made or the final payment is received. Id. The first three phrases of the statute are uniformly separated by semicolons and the second and third phrases begin with the word "also." By so grammatically structuring the statute, the legislature divided the sentence into three distinct cases to which the statute of limitations trigger phrase expressly applies. See id.; Newspaper Agency Corp., 938 P.2d at 271.

¶ 17 Further, the statute of limitations ordinarily will not begin to run on an action until it has accrued. Davidson Lumber Sales, 794 P.2d at 19. A cause of action for breach of contract for failure to make a payment, for deficient payment, or for overpayment accrues only after a charge is made or the payment is received, i.e., an action for overassessment acerues only after the relevant assessment has been made, and thus the limitation period begins to run when the payment is received or the charge is made. See Utah Code Ann. § 78-12-25(1); see also CIG Exploration, Inc., 2001 UT 37 at ¶ 15, 24 P.3d 966 (holding that limitation period expired on plaintiff's claims to recover overpaid royalties because plaintiff's final payment to State was more than four years before action was commenced); DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 843 (Utah 1996) ("As a general rule, a cause of action accrues when a plaintiff could have first filed and prosecuted an action to successful completion.").

11 18 Many "contract[s}, obligation{s], or lia-bilitlies] not founded upon an instrument in writing"-such as oral contracts, implied contracts, and quasi-contracts-require charges and payments to be made, many of which are made more than four years after the parties agree to such payments. If the statute of limitations precluded a party from pursuing a cause of action before it accrued, then parties could breach contracts with impunity once the statute of limitations had expired. Therefore, we have repeatedly held that all contracts covered by section 78-12-25(1) accrue when the last charge has been made or the last payment received. CIG Exploration, Inc., 24 P.3d 966, 2001 UT 37 at ¶¶ 10 & 14; Davidson Lumber Sales, 794 P.2d at 19; Petty & Riddle, Inc. v. Lunt, 104 Utah 130, 138, 138 P.2d 648, 652 (1942); see also CIG Exploration, Inc. v. Hill, 824 F.Supp. 1532, 1546 (D.Utah 1993).

¶ 19 Here, whenever HCIC makes a new assessment under the purportedly unlawful mechanism, a new cause of action accrues on that individual assessment, permitting the statute of limitations on the newly arisen cause of action to run from the date of the new assessment. Inasmuch as DWR alleges that HCIC's assessments were made pursuant to an unlawful mechanism, DWR can assail the assessments by challenging the mechanism upon which the assessments are based. See, e.g., Utah Ry. Co. v. State Tax Comm'n, 2000 UT 49, ¶¶ 11-12, 5 P.3d 652; Salt Lake City Corp. v. Prop. Tax Div. of State Tax Comm'n, 1999 UT 41, ¶¶ 14 & 22, 979 P.2d 346; Walker v. Brigham City, 856 P.2d 347, 348-49 (Utah 1993).

€20 However, DWR is still subject to the statute of limitations, which precludes actions that accrued more than four years before DWR filed this suit. Where, as here, a plaintiff brings suit to recover for overassess-ments, the statute of limitations runs against each assessment from the date the assessment is made, that is, from the date when an action may be brought on that particular assessment. Greene v. Bursey, 733 So.2d 1111, 1114 (Fla.Ct.App.1999). Hence, the limitation period may expire on some assessments but not on others. Id. Specifically, DWR cannot challenge every assessment made under the mechanism in perpetuity. As we have previously applied the limitation period of section 78-12-25(1), only payments due or assessments charged within the four years prior to filing the lawsuit can be the basis for a contractual claim. See Morris v. Russell, 120 Utah 545, 554, 236 P.2d 451, 456 (1951). DWR has only four years from the date of an assessment within which to challenge that particular assessment. The statute of limitations precludes DWR from challenging assessments made more than four years before this case was filed on June 14, 1999. See id. (holding that because services rendered were compensable monthly, limitation period would begin to run at end of each month on each individual monthly payment due). However, inasmuch as the first assessment in this suit challenged by DWR was made on October 11, 1995, the statute of limitations does not preclude any of the claims at issue in this case challenging purportedly unlawful assessments.

121 Although the trial court found that HCIC informed DWR that a portion of its shares would be subject to reduced voting rights in February 1995, this fact does not preclude a challenge to particular assessments levied by HCIC. Therefore, the limitation period does not preclude DWR from recovering on any alleged overassessments should DWR prevail below on its implied contract claims.

duced voting rights. 122 In addition, the four-year statute of limitations commenced to preclude an action on particular shares with respect to DWR's claims of reduced voting rights when HCIC specifically reclassified those shares, thus effectively denying voting rights on those particular shares, because a cause of action for reduced voting rights accrues when those rights are effectively denied. HCIC notified DWR that some of DWR's shares would be subject to reduced voting rights in February 1995, although it is unclear from the record whether HCIC specifically notified DWR regarding which and how many shares would be reclassified and thus subject to the re-Accordingly, the four-year limitation period commenced on DWR's reduced voting rights claim either in February 1995 or on October 11, 1995, depending upon when HCIC specifically reclassified some of DWR's shares as M & I shares, which were subject to reduced voting rights. If HCIC specifically notified DWR regarding which shares were subject to reduced voting rights in February 1995, effectively reducing the voting rights on those shares from that time, then a cause of action on those particular shares would be time-barred. However, if the February notice was merely general and did not specifically reduce DWR's voting rights, then the statute of Hmitations would have expired on those voting rights claims stemming from the 1995 reclassification on October 11, 1999. With respect to the shares reclassified as M & I shares in 1999, the statute of limitations will not expire on those voting rights claims until 2003, and those claims are therefore not time-barred. We therefore remand to the trial court to determine whether some of DWR's shares were reclassified in February or October 1995 so that it can be determined whether any cause of action with respect to reduced voting rights on those shares is precluded.

B. Statutory Claims

123 In its amended complaint, DWR alleged that it suffered damages in the form of overassessments and reduced voting rights because HCIC violated sections 16-4-4, -7, and -24 by amending its articles of incorporation in 1977 and 1987, and by adopting new bylaws in 1995 to implement those amendments ("statutory claims"). However, in dismissing the action, the trial court also concluded that the three-year statute of limitations in section 78-12-26(4) barred DWR's statutory claims because this limitation period commenced no later than February 1995, more than three years before DWR filed its statutory claims. Section 78-12-26(4) states:

An action may be brought within three years: (4) for a liability created by the statutes of this state, other than for a penalty or forfeiture under the laws of this state, except where in special cases a different limitation is prescribed by the statute of this state....

Utah Code Ann. § 78-12-26(4) (1996).

124 The statute of limitations set forth in section 78-12-26(4) begins to run only after the cause of action based on Utah statute has accrued. Id. § 78-12-1; see also Davidson Lumber Sales, Inc. v. Bonneville Inv., Inc., 794 P.2d 11, 19 (Utah 1990); State Tax Comm'n v. Spanish Fork, 99 Utah 177, 181, 100 P.2d 575, 577 (1940). Generally, a cause of action accrues when "it becomes remediable in the courts, that is when the claim is in such condition that the courts can proceed and give judgment if the claim is established." Spanish Fork, 99 Utah at 181, 100 P.2d at 577; see also Hill v. Allred, 2001 UT 16, 115, 28 P.3d 1271 ("In most cireum-stances, a cause of action acerues 'upon the happening of the last event necessary to complete the cause of action'" (quoting Myers v. McDonald, 635 P.2d 84, 86 (Utah 1981))); Retherford v. AT & T Communications of the Mountain States, Inc., 844 P.2d 949, 975 (Utah 1992) ("In order to determine when the limitation period began to run, then, we must determine when each of the causes of action became actionable by the courts."). Accordingly, the running of the statute of limitations is not triggered until all of the elements that must be proved at trial under the statute allegedly creating lability on the part of the defendant are existing and may be established. See Davidson Lumber Sales, 794 P.2d at 19; see also Spears v. Warr, 2002 UT 24, 1 88, 44 P.3d 742 (noting that statute of limitations will not run until all events necessary to complete cause of action have occurred). Thus, unless a statute otherwise provides, generally the plaintiff must have suffered damages before a cause of action accrues for statute of limitations purposes. Seale v. Gowans, 928 P.2d 1361, 1864 (Utah 1996); Williams v. Indus. Comm'n of Utah, 95 Utah 376, 378, 81 P.2d 649, 649 (1938); Salt Lake City v. Indus. Comm'n, 93 Utah 510, 518-14, 74 P.2d 657, 659 (1987); see also Monsanto Co. v. Miller, 455 N.E2d 892, 8394 (Ind.Ct.App.1983); Lmuick v. Rademacher, 129 Mich.App. 803, 342 N.W.2d 617, 618 (1983); Elmore v. Owens-Illinors, Inc., 678 SW.2d 434, 486 (Mo. 1984) (en banc); Snyder v. Town Insulation, Inc., 81 NY.2d 429, 599 N.Y.S.2d 515, 615 N.E.2d 999, 1000 (1998); Children's Hosp. v. Oho Dep't of Pub. Welfare, 69 Ohio St.2d 5283, 488 N.E.2d 187, 190 (1982); Osborn Co. v. Oho Dep't of Admin. Servs., 80 Ohio App.3d 205, 608 N.E.2d 1149, 1150 (1992); Young v. Young, 709 P.2d 1254, 1258 (Wyo. 1985); 51 Am.Jur.2d Limitation of Actions § 109 (1970); of Spears, 2002 UT 24 at 1 32, 44 P.3d 742 (noting that limitation period and discovery rule involve determination of "the point at which a person reasonably should know that he or she has suffered a legal injury " (emphasis added)).

1125 In this case, until damages were sustained, DWR's statutory claims under title 16 of the Utah Code remained inchoate and would not have acerued, and the limitation period was not triggered. See Seale, 923 P.2d at 1364. Therefore, the three-year statute of limitations did not commence until each wrong occurred.

126 On every purportedly illegal assessment, HCIC could have violated the statute anew, giving rise to new liability. Consequently, the statute of limitations began to run on each assessment or denial of voting rights from the date of each individual assessment or denial of voting rights. Therefore, DWR can raise only the statutory claims to assail assessments or reduced voting rights for the three-year period immediately before DWR filed this action on June 14, 1999. Accordingly, DWR can recover only on statutory claims since June 14, 1996.

CONCLUSION

127 In light of the foregoing, we reverse and remand to the trial court for proceedings consistent with this opinion.

1 28 Chief Justice DURHAM, Associate Chief Justice DURRANT, and Justice HOWE concur in Justice RUSSON'S opinion.

{ 29 Justice WILKINS dissents.

      . The relationship between a mutual irrigation corporation and its shareholders is contractual, see Badger v. Brooklyn Canal Co., 922 P.2d 745, 749-50 (Utah 1996); Salt Lake City Corp. v. Ca-hoon & Maxfield Irrigation Co., 879 P.2d 248, 252 (Utah 1994), E. Jordan Irrigation Co. v. Morgan, 860 P.2d 310, 314 (Utah 1993), "implied in a subscription for stock and construed by the provisions of a charter or articles of incorporation." Jacobucci v. Dist. Court, 189 Colo. 380, 541 P.2d 667, 671 (1975) (en banc). As such, the limitation period applicable to causes of action relating to this implied contract between an irrigation company and its shareholders is governed by Utah Code section 78-12-25(1). Davidson Lumber Sales, Inc. v. Bonneville Inv., Inc., 794 P.2d 11, 19 (Utah 1990); Petty & Riddle, Inc. v. Lunt, 104 Utah 130, 136-38, 138 P.2d 648, 651-52 (1942). Neither party disputes that all but one of the causes of action in this case are based upon implied contract and that, therefore, the statute of limitations of section 78-12-25(1) applies to those actions.

      . DWR argues that the trial court fundamentally mischaracterized its first amended complaint by concluding that all of DWR's implied contract claims had accrued no later than February 1995, rather than a challenge to the assessments levied by HCIC. Conversely, HCIC, concurring with the trial court, stated that DWR implicitly conceded that all challenges to the amendments of the articles of incorporation or adoption of bylaws were barred by the statute of limitations and that DWR "attempts to argue a new, unpled theory-ie., that [HCIC's] alleged wrongful conduct was not the amendments to [articles or adoption of the [blylaws, but instead was the annual assessments of shareholders." In Utah a party is required only to "notice plead.'' Fishbaugh v. Utah Power & Light, 969 P.2d 403, 406 (Utah 1998). With this in mind, we review DWR 's first amended complaint.
      In this complaint, DWR sought declaratory judgment relating to "HCIC's actions in stripping DWR of voting rights and imposing higher assessments relating to property/stock ownership" and regarding how "the higher 'municipal and industrial" assessments do not reasonably, or 'equitably,' reflect any increased costs of water delivery." Further, DWR alleged in the complaint that HCIC breached its contract with DWR by "unilaterally amending its [blylaws and [alrticles of [iJncorporation after DWR's acquisition of shares to increase DWR's assessment costs." In addition, DWR sought injunctive relief and damages for "illegal assessments levied against it by HCIC," which DWR paid HCIC, and for which DWR requested the trial court to award DWR damages "to refund to DWR excess assessments paid." Accordingly, DWR's complaint challenged the assessments levied.

      . Our holding should not be misconstrued to stand for the proposition that the mechanism may be attacked every time a new assessment is made contrary to our well-established doctrine of res judicata. Once the mechanism has been challenged and a final judgment has been rendered on the issue, whether the judgment vindicated the plaintiff's position or not, res judicata precludes relitigation of the particular claim or issue. E.g., Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶¶ 57-58, 44 P.3d 663; Culbertson v. Bd. of County Comm'rs, 2001 UT 108, ¶ 12, 44 P.3d 642; Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶¶ 34-37, 16 P.3d 1214.

      . For a period of time, Williams, 95 Utah 376, 81 P.2d 649, and Salt Lake City, 93 Utah 510, 74 P.2d 657, were superseded by a specific statutory limitation period directly applicable to workers' compensation cases, as noted by McKee v. Industrial Commission, 115 Utah 550, 554, 206 P.2d 715, 717 (1949). However, in 1990, that statute was repealed. S.B. 35, 48th Leg., Gen. Sess., 1990 Utah Laws 69. Nevertheless, despite the specific statutory history involved in these cases, the general analysis we employed with respect to when the limitation period of section 78-12-26(4) commenced running was never in doubt, and we are not hesitant to rely upon that analysis here.


source: Caselaw Access Project

author: HOWE, Justice:

license: Public Domain

text:
    ~2002 UT 76
    CHECKRITE RECOVERY SERVICES, Plaintiff and Appellant, v. Deborah M. KING, Defendant and Appellee.
    No. 20010006.
    Supreme Court of Utah.
    July 30, 2002.
    Richard H. Deloney, C. Douglas McCallon, Midvale, for plaintiff.
    David A. Greenwood, Evan S. Strassberg, Salt Lake City, for amicus Van Cott, Bagley, Cornwall & McCarthy.
   HOWE, Justice:

{1 Plaintiff Checkrite Recovery Services appeals from a default judgment that it was awarded against defendant Deborah M. King for $245.04 representing the principal amount of nine checks which she wrote to different payees, but which checks were dishonored upon presentment. The judgment also included $735.12 in damages, $76 in costs of court, and $150 in reasonable attorney fees. The trial court, however, refused to include in the judgment costs of collection incurred by plaintiff in the amount of $180.72, which breaks down to nine checks at $20.08 per check.

1 2 The sole issue presented by this appeal is the meaning of "all costs of collection, including all court costs and reasonable attorneys' fees," which are recoverable under Utah Code Ann. § 7-15-1(7)(b)(@ii) (2001) in a suit against the issuer of a dishonored check.

T3 In order to resolve this issue, it is helpful to examine the entire statutory scheme contained in section 7-15-1 which provides for the civil liability of issuers of dishonored checks. An examination of the specific provisions of the statute discloses the following:

(a) During the first 15 days after notice is given to the issuer of a dishonored check, the holder or his agent may demand the amount of the check, plus a $20 service charge.

§ 7-15-1(2)(b).

(b) After fifteen days and up to thirty days after notice, the holder or his agent may demand the amount of the check, the $20 service charge, and collection costs not exceeding $20.

§ 7-15-1(4).

(c) After thirty days, the holder or his agent may offer not to file a civil action and may demand the amount of the check, the $20 service charge, collection costs not exceeding $20, and the greater of $50 or triple the check amount, which amount may not exceed the check amount plus $250; and if the holder or his agent retains an attorney, reasonable attorneys' fees not to exceed $50.

§ 7-15-1(6)(a).

(d) If the holder of the check brings suit and prevails, he may recover the amount of the check, interest, all costs of collection, including all court costs and reasonable attorneys' fees, and damages equal to the greater of $100 or triple the amount of the check not to exceed the check amount plus $500 dollars.

§ 7-15-1(7)(b).

{4 The trial judge in the instant case, following a policy set by some of the judges of the third district court, refused to include in plaintiff's judgment against defendant any costs of collection and restricted the costs recoverable by plaintiff to costs of court of $76.

15 It is readily evident that the statutory scheme provides for an escalation of recoverable amounts as time elapses without payment of the dishonored check and as additional steps are taken to recover the check amount. During the first fifteen days after notice of the dishonored check, the only additional amount recoverable is a $20 service charge. After fifteen days, and up to thirty days after notice, the $20 service charge and collection costs not exceeding $20 may be additionally recovered. After thirty days, but before a civil action is filed, the $20 service charge, collection costs not exceeding $20, the greater of $50 or triple the check amount, but not to exceed the amount of the check plus $250, and if an attorney has been retained, attorneys' fees not to exceed $50 are recoverable. Finally, if suit is brought, the holder of the check may recover the amount of the check, interest, damages equal to the greater of $100 or triple the check amount, but not to exceed the check amounts plus $500 and "all costs of collection, including all court costs and reasonable attorneys' fees."

T6 It is to be noted that when suit is brought, the $20 service charge can no longer be recovered nor "collection costs not to exceed $20." Therefore, we are persuaded that "all costs of collection, including all court costs and reasonable attorneys' fees" must, indeed, include more than court costs and must include costs of collection which are no longer limited to $20. It would be anomalous to construe the statutory scheme to allow recovery of collection costs early in the collection process, but deny recovery of them when a civil action is necessitated with its attendant increase in time devoted to the collection effort. The "damages" which are recoverable in a civil action do not include any costs of collection. Damages are expressly required to be paid to and become the property of the original payee of the check who is prohibited from contracting for anyone else to receive any part of the damages. § 7-15-(7)(d)(ii).

T7 There is an additional reason why "all costs of collection, including all court costs," are not limited to court costs. In Cherry Creek School District v. Voelker, 859 P.2d 805, 813 (Colo.1998), the Colorado Supreme Court held that "a statutory definition of a term as '"including' certain things does not restrict the meaning to those items included" (citing 78 Am.Jur.2d Statutes § 212, at 406 (1974)). "Rather," continued the court, "the word 'include' is ordinarily used as a word of extension or enlargement." This rule of construction is widely employed by courts in this country as evidenced by numerous cases cited in Words and Phrases, Vol. 20A, 152 (construing the word "including" as being a word of enlargement and not of limitation). See Bd. of County Comm'rs v. Bassett, 8 P.3d 1079, 1083 (Wyo.2000) (stating that "includes" implies the conclusion that there are other items includable, though not specifically enumerated).

CONCLUSION

T8 We conclude that section 7-15-1(7)(b)(it), which provides for the recovery in a civil action on a dishonored check for "all costs of collection, including court costs and reasonable attorneys' fees," includes costs of collection in addition to any court costs. The judgment appealed from is reversed, and the case is remanded to the trial court with instructions to amend the judgment to include costs of collection incurred by plaintiff in addition to all court costs.

T9 Chief Justice DURHAM, Justice RUSSON, and Justice WILKINS concur in Justice HOWE's opinion.

{10 Having disqualified himself, Associate Chief Justice DURRANT does not participate herein.


author: DURRANT, Associate Chief Justice:

text:
    2002 UT 77
    John COLLINS and June Collins, Plaintiffs and Petitioners, v. SANDY CITY BOARD OF ADJUSTMENT and Sandy City Corporation, a municipal corporation, Defendants and Respondents.
    No. 20010144.
    Supreme Court of Utah.
    Aug. 2, 2002.

      Franklin Slaugh, Sandy, for petitioners.
    Steven C. Osborn, Sandy, for respondents.
   On Certiorari to the Utah Court of Appeals

DURRANT, Associate Chief Justice:

11 On certiorari, petitioners John and June Collins (the "Collinses") seek review of Collins v. Sandy City Board of Adjustment, 2000 UT App. 371, 16 P.3d 1251. In that decision, the Utah Court of Appeals concluded that the Collinses' suit was barred by principles of issue preclusion because they had previously litigated the same issue in an earlier case and failed to appeal. The Col-linses argue that because of an intervening change in the law, their suit is not barred on issue preclusion grounds. Because we conclude that there was no change in the law, we hold that issue preclusion applies and affirm the court of appeals' decision.

BACKGROUND

12 "Before we recite the facts, we note that in reviewing a grant of summary Judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.'' Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993). We state the facts accordingly.

¶ 3 The Collinses own certain real properties located in Sandy, Utah. They used these properties as short-term rentals until March 1996, when Sandy City ordered them to cease and desist such use. Sandy City claimed that the Collinses' use violated chapter 15-7 of its Land Development Code because that section barred short-term rentals.

T4 The Collinses appealed this cease and desist order to the Sandy City Board of Adjustment (the "Board"), and the Board upheld Sandy City's interpretation of the zoning ordinance. The Collinses then appealed the Board's decision to the Third District Court, and the district court affirmed on September 29, 1997 ("Collins I"). The Col-linses opted not to appeal that decision.

T 5 On March 26, 1998, the Utah Court of Appeals decided Brown v. Sandy City Board of Adjustment, 957 P.2d 207 (Utah Ct.App. 1998), which involved precisely the same issue that was raised in Collins I (Le., whether chapter 15-7 of Sandy City's Land Development Code prohibited short-term rentals in residential zones). The court of appeals held in Brown that the use of short-term leases was not prohibited by the zoning ordinance, reasoning that although the plain language of chapter 15-7 does not specifically permit short-term rentals, it does not prohibit them cither. Id. at 211-12.

6 In response to Brown, Sandy City imposed a temporary moratorium on short-term leases, which became effective on March 27, 1998. Thereafter, Sandy City passed a permanent ordinance prohibiting all short-term leases in residential areas that were entered into after March 27, 1998.

T7 On October 27, 1998, the Collinses filed an application for determination of non-conforming use status on their properties with the Board. Following a hearing on November 12, 1998, the Board denied the Collinses' application. The Board based its decision on two grounds. First, it concluded that the properties in question were not used as short-term rentals as of March 27, 1998 (Le., the date the moratorium took effect). See-ond, it reasoned that the Collinses had previously appealed a decision of the Board, that this earlier decision had been upheld by the district court in Collins I, and that the Col-linses could not benefit from the Brown decision because they had not appealed the ruling in Collins I.

{8 The Collinses appealed the Board's decision to the district court, and the district court granted summary judgment in favor of the Board on November 18, 1999 ("Collins II"). The court concluded that res judicata principles barred the Collinses' claim because they failed to appeal the district court's decision in Collins I. Additionally, the court found that the properties at issue did not qualify for non-conforming use status because the Collinses had failed to show that they were using the properties as short-term rentals on March 27, 1998.

T9 The Collinses subsequently appealed the district court's decision in Collins II, and the Utah Court of Appeals affirmed. Collins, 16 P.3d 1251, 2000 UT App. 371 at 1 29. In that appeal, the Collinses claimed that one of the four elements required for issue preclusion was not met. They further argued that they should not be barred by principles of issue preclusion because of an intervening change in the law. The court of appeals concluded that all of the requirements for issue preclusion had been met, id. at 11 9-14, and that where a party chooses not to appeal an issue that has been previously litigated, that party may not avoid the effects of issue preclusion by relying on a subsequent change in the law resulting from an appellate decision, id. at 1 29.

{10 The Collinses then petitioned for a writ of certiorari, which we granted. We have jurisdiction pursuant to subsection 78-2-2(8)(a) of the Utah Code. Utah Code Anu. § (Supp.2001). On certiorari, the Collinses argue that the Utah Court of Appeals erred in holding that an intervening change in the law did not operate as a defense to the doctrine of issue preclusion. In addition, they contend that barring this suit does nothing to further the traditional purposes of issue preclusion.

ANALYSIS

I. STANDARD OF REVIEW

§11 "When exercising our certiora-ri jurisdiction, we review the decision of the court of appeals and not that of the trial court." Longley v. Leucadia Fin. Corp., 2000 UT 69, 118, 9 P.3d 762. "On certiorari, we review the decision of the court of appeals for correctness." Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, « 11, 48 P.8d 968. We may affirm the court of appeals' decision on any ground supported in the record. See Dipoma v. MePhie, 2001 UT 61, 1 18, 29 P.3d 1225.

II ISSUE PRECLUSION

112 It is well settled that the doe-trine of "[ilssue preclusion prevents the relit-igation of issues in a subsequent action." Culbertson v. Bd. of County Comm'rs, 2001 UT 108, I 25, 44 P.3d 642 (emphasis omitted). This doctrine applies if the following four requirements are met:

(i) the party against whom issue preclusion is asserted must have been a party to or in privity with a party to the prior adjudication; (i) the issue decided in the prior adjudication must be identical to the one presented in the instant action; (Hf) the issue in the first action must have been completely, fully, and fairly litigated; and (iv) the first suit must have resulted in a final judgment on the merits.

In re Rights to Use of All Water, 1999 UT 39, ¶ 18, 982 P.2d 65. The Collinses do not challenge the court of appeals' conclusion that the four elements required for issue preclusion were satisfied regarding the issue of whether chapter 15-7 of Sandy City's Land Development Code prohibits short-term rentals. Thus, under normal cireum-stances, the Collinses would be precluded from relitigating that issue.

III. CHANGE IN LAW

113 The Collinses argue that they can cireumvent the doctrine of issue preclusion, however, because of a change in the law. Specifically, they contend that the court of appeals' ruling in Brown granted them a new substantive right (Le., the right to use their properties as short-term rentals). Sandy City counters that the doctrine of issue preclusion applies because the Collinges did not appeal the district court's ruling in Collins I. We conclude that the doctrine of issue preclusion applies because no change in law occurred.

114 A change in the law may allow a party to avoid the effect of issue preclusion. E.g., State Farm Mut. Auto. Ins. Co. v. Duel, 324 U.S. 154, 162, 65 S.Ct. 573, 89 L.Ed. 812 (1945) (explaining that res judicata "is no defense where between the time of the first judgment and the second there has been a change in the law creating an altered situation"); Marino v. State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 950 (Tex.1990) (concluding that "no judgment can affect subsequently arising rights and duties"). To invoke this exception, a party must establish that a new substantive right has been created. Besing v. Vanden Eykel, 878 S.W.2d 182, 184-85 (Tex.App.1994) (ruling that a change regarding the applicable statute of limitations did not create a new substantive right). Whether a new substantive right has been created by a judicial opinion issued after the party's original suit has been decided, however, requires, at a minimum, an actual change in the law. See, e.g., Statler v. Catalano, 293 Ill.App.3d 483, 229 Ill.Dec. 274, 691 N.E.2d 384, 386 (1997).

115 Here, the court of appeals determined in a conclusory fashion that a change in law occurred. We disagree. Prior to Brown, no appellate court of this state had ever held that short-term rentals were invalid under the Land Development Code interpreted in Brown. The fact that the district court held in Collins I that the ordinance barred short-term rentals and the court of appeals held in Brown that the ordinance did not bar short-term rentals does not mean that the law changed between those two judicial decisions. The law remained the same. The district court in Collins I simply interpreted the ordinance in a manner rejected by the court of appeals in Brown, and the Col-linses accepted the district court's ruling when they chose not to appeal that decision. Put differently, they accepted a legal conclusion even though the law, as interpreted by the Utah Court of Appeals in Brown, mandated a different result. Accordingly, the change in law exception relied on by the Collinses has no application to the present case.

T 16 This result is consistent with the United States Supreme Court's decision in Federated Department Stores Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 LEd.2d 103 (1981). There, seven antitrust actions were brought against owners of various department stores ("Moitie I"). Id. at 395, 101 S.Ct. 2424. The district court dismissed all of the actions because the purchasers had not alleged an "injury" to their "business or property" within the meaning of the Clayton Act. Id. at 396, 101 S.Ct. 2424. Five of the seven plaintiffs appealed the district court's order to the Ninth Cireuit, Id. The two remaining plaintiffs chose to refile their claims in state court. Id. These state claims were then removed to federal court ("Moitie II"). The federal district court concluded in Moitie II that the claims were essentially the same as those decided in Moitie I and dismissed them on res judicata grounds. Id. at 396-97, 101 S.Ct. 2424. The two plaintiffs then appealed to the Ninth Circuit. Id. at 397, 101 S.Ct. 2424.

While that appeal was pending, the United States Supreme Court decided Reiter v. Sonotone Corp., 442 U.S. 880, 99 S.Ct. 2326, 60 L.Ed.2d 981 (1979), which concluded that retail purchasers can suffer an "injury" to their "business or property" under the Clayton Act. Pursuant to Reiter, the Ninth Circuit reversed and remanded the five suits that had been appealed directly in Moitie I.

{18 When Moitie II was decided by the Ninth Circuit, the court reversed the decision of the district court and dismissed the claims of the two non-appealing parties, reasoning that those two parties should "benefit from a reversal [because] their position [was] closely interwoven with that of [the five] parties" who appealed Moitie I directly. Id. at 398, 101 S.Ct. 2424, The United States Supreme Court reversed, holding that

an erroneous conclusion reached by the court in the first suit does not deprive the defendants in the second action of their right to rely upon the plea of res judica-ta.... A judgment merely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be corrected by a direct review and not by bringing another action upon the same cause [of action]. We have observed that [the] indulgence of a contrary view would result in creating elements of uncertainty and confusion and in undermining the conclusive character of judgments, consequences which it was the very purpose of the doctrine of res judicata to avert.

Id. at 398-99, 101 S.Ct. 2424 (internal quotations, italies, and citations omitted).

[ 19 Consistent with the United States Supreme Court's opinion in Moitie II, we hold that the Collinses made a calculated choice to forego their appeals and that the predicament in which they find themselves is of their own making. CF id. at 400-01, 101 S.Ct. 2424. They could have challenged the decision rendered in Collins I but elected not to do so. They therefore forfeited their right to attack the decision on direct appeal and now seek to collaterally attack that judgment. However, we "cannot be expected, for [their] sole relief, to upset the general and well established doctrine of res judicata, conceived in the light of the maxim that the interest of the state requires that there be an end to litigation-a maxim which comports with common sense as well as public policy" Id. at 401-02 (quoting Reed v. Allen, 286 U.S. 191, 198-99, 52 S.Ct. 582, 76 L.Ed. 1054 (1932) (italics omitted)). We therefore affirm.

CONCLUSION

20 We conclude that there was no change in the law between Collins I and Collins IL The district court simply reached an erroneous legal conclusion in Collins I that was corrected in Brown. Because the Collinses failed to appeal Collins I, they are bound by that judgment and may not relitigate an issue they already had an opportunity to litigate. Accordingly, we affirm the court of appeals' ruling.

€21 Chief Justice Durham, Justice Rus-son, and Justice Wilkins concur in Associate Chief Justice Durrant's opinion.

T22 Justice Howe dissents.

      . A short-term rental is a rental for a period of less than thirty days. Sandy City Ordinance no. 98-26, § 4(B) (1998).

      . We do not decide whether the Brown court correctly interpreted the city ordinance at issue in that case.

      . The Collinses contend that they should be deemed to have had a non-conforming use at the time the permanent ordinance prohibiting short-term rentals was passed because Brown essentially held that it was legal for everyone in Sandy to use their properties as short-term rentals. As we stated above, however, the Collinses cannot take advantage of Brown because they did not appeal Collins I. Regardless, the Collinses failed to raise this issue before the court of appeals and the issue did not arise solely out of the court of appeals' decision. DeBry v. Noble, 889 P.2d 428, 444 (Utah 1995) {explaining that "[ilssues not raised in the court of appeals may not be raised on certiorari unless the issue arose for the first time out of the court of appeals' decision").


author: DURHAM, Chief Justice.

text:
    2002 UT 78
    ENERCO, INC., Plaintiff and Appellant, v. SOS STAFFING SERVICES, INC., Freeport Center Associates, Atlas Steel, Inc., L. Bloom & Son Ogden, Wasatch Metal, Inc., John Does I-X and Doe corporations I-X, Defendants and Appellants.
    No. 20010050.
    Supreme Court of Utah.
    Aug. 9, 2002.

      Michael L. Schwab, Lloyd A. Hardcastle, Farmington, for plaintiff.
    John R. Lund, Julianne P. Blanch, Salt Lake City, for defendants.
   DURHAM, Chief Justice.

T1 This action was brought by Enereo, Inc. (Enerco), against Freeport Center Associates (Freeport) to recover damages for property stolen from Enerco while it was leasing building space from Freeport. On a motion for summary judgment, the trial court held Freeport not liable for the losses. We affirm.

BACKGROUND

T2 Enerco is a Delaware corporation in the business of buying large surplus lots of equipment and merchandise from the United States government and reselling the materials throughout the world. Freeport is the owner of a 735 acre manufacturing and distribution center consisting of 92 buildings leased to private and public entities.

T3 On July 9, 19983, Enerco and Freeport entered into a written lease agreement whereby Freeport leased space in one of its buildings to Enereo for the purpose of "Isltorage and distribution of [Enereo's] products and materials." The lease agreement was for a six-month period beginning in August 1998 and ending in January 1994, with a holdover clause providing for a month-to-month tenancy thereafter.

T4 In late 1995, Enerco terminated all of its temporary employees so that no one would have access to the premises during an extended overseas trip of the directing manager. One of Enerco's former temporary employees and others began stealing large quantities of Enereo's property, using trucks and flatbed trailers and entering through the back entrance of the warehouse. Enerco filed this action against Freeport to recover its losses from the theft.

T5 On Freeport's motion for summary judgment, the trial court ruled that (1) Free-port did not breach its lease agreement with Enerco, (2) Freeport had no duty as a landlord to protect the personal property of Ein-erco from third persons, and (8) Freeport was not a warehouseman and therefore not subject to liability for Enereo's property losses under Utah Code Section 70A¥A-7-102. This appeal followed.

STANDARD OF REVIEW

16 Whether a contract is ambiguous is a question of law. See Dizon v. Pro Image Inc., 1999 UT 89, ¶ 14, 987 P.2d 48 (Utah 1999); see also Fitzgerald v. Corbett, 793 P.2d 356, 358 (Utah 1990). In considering a grant of summary judgment, "we review the court's legal decision for correctness.'' Booth v. Attorneys' Title Guar. Fund, Inc., 2001 UT 13, ¶ 28, 20 P.3d 319 (citations omitted). In deciding whether the trial court correctly granted summary judgment to Freeport on Enerco's negligence and breach of lease claims, we grant no deference to the trial court and "view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.'' Keith Jorgensen's, Inc. v. Ogden City Mall Co., 2001 UT App 128, ¶ 10, 26 P.3d 872 (citations omitted).

ANALYSIS

I. BREACH OF CONTRACT

T7 Enereo makes several arguments that Freeport breached the lease agreement, claiming: (1) Freeport breached the lease agreement by failing to repair damage to the entrance of the leased property; (2) Freeport breached its duty to provide insurance and security for Enereo's personal property; and (8) the written lease agreement had expired at the time of the theft, so its terms do not limit the duties of the parties.

18 Enerco claims that Freeport is responsible for the large quantity of personal property that was stolen because of Free-port's failure to promptly repair doors damaged during the previous robberies. Enerco bases this argument on language in the lease agreement requiring Freeport to repair damage to the premises. However, the lease agreement also requires written notice before Freeport becomes responsible for repairs. There is no evidence that Enerco gave written notice of any damage to Free-port. Therefore, Freeport is not in breach of the repair provision of the lease.

19 Enerco next argues that the lease agreement is ambiguous and therefore we should consider extrinsic evidence of oral representations made by Freeport about security. Enerco also argues that the lease agreement is ambiguous about whether Freeport was required to provide insurance for Emerco's personal property. We disagree.

T10 "A contract provision is ambiguous if it is capable of more than one reasonable interpretation...." Winegar v. Froerer Corp., 818 P.2d 104, 108 (Utah 1991). "If the contract is in writing and the language is not ambiguous, the intention of the parties must be determined from the words of the agreement." Id. (citations omitted).

1 11 In the present case, the lease contract is not capable of more than one reasonable interpretation. The language of the lease specifically states that "Tenant and Landlord hereby mutually release and waive their entire right of recovery against the other party for any and all loss or damage to ... all personal property of Tenant[.]" The lease agreement has an indemnification clause whereby Enerco agrees to hold Freeport harmless for "any theft or damage to or destruction of goods, wares, merchandise and all other property of Tenant[.]" In addition to these two provisions, the lease agreement has an integration clause acknowledging that the lease "contains all the agreements made and entered into between the Tenant and the Landlord."

1 12 The foregoing language is not ambiguous and therefore the intentions of the parties must be determined from the language of the agreement. See Winegar, 813 P.2d at 108. Since the language of the lease agreement releases Freeport from responsibility for damage to the personal property of Ener-co, makes no representations about security, and specifically disallows any agreements outside of the provisions of the lease, extrinsic evidence to the contrary is not permissible.

118 Enerco bases its final argument regarding breach of contract on the fact that the six-month term of the original lease agreement had expired when the robberies took place. Enerco argues that because the lease term had expired, the provisions of the lease are void, thus allowing the parties to form a new oral lease. We disagree. The lease contains a holdover clause whereby the lease becomes a month-to-month tenancy after the expiration of the six-month period "on the same terms and conditions as provided" in the lease contract. The terms of the original lease were therefore in effect at the time Enereo's personal property was stolen.

II. LANDLORDS DUTIES

" 14 Enerco makes several arguments that Freeport had duties as a landlord that extend beyond the language of the lease agreement. Enerco argues that (1) Freeport had an expanded common law duty to protect the personal property of Enerco, (2) Enerco, under Utah law, is considered a co-insured of Freeport, and (8) Freeport had the same commercial duties as an innkeeper.

% 15 Enerco argues that as a landlord, Freeport had an expanded common law duty to "exercise reasonable care toward [its] tenants in all cireumstances." Williams v. Mel-by, 699 P.2d 728, 726 (Utah 1985). While it is true that Williams and other cases relied on by Enerco do expand the common law duty of landlords, that duty extends only in the context of "injuries caused by any defects or dangerous conditions[.]" Id. at n. 1 (citation omitted). Williams stands for the proposition that landlords have some duty to protect tenants from physical injury resulting from dangers on the leased premises, not a duty to protect the personal property of tenants from third parties. See id. at 727-28. As the California Court of Appeals has pointed out, "it is the tenant that is in the best position to take steps to protect the safety of its own property[.]'' Royal Neckwear Co., Inc. v. Century City, Inc., 205 Cal.App.3d 1146, 252 Cal.Rptr. 810, 814 (1988).

Enerco also argues that Free-port had a duty to provide insurance for Enerceo's personal property. Enerco relies on language in GNS Partnership v. Fullmer, which states that "the landlord's insurance is presumed to be held for the tenant's benefit as a coinsured in the absence of an express agreement to the contrary.'' 873 P.2d 1157, 1161 (Utah Ct.App.1994). However, this language does not apply to Enereo's situation. In GNS Partnership we held that landlords and tenants are co-insureds for subrogation purposes in the context of insuring the landlord's building, not the tenant's personal property. See id. at 1160-61. Freeport owes no duty to insure Emerco's personal property under GNS Partnership.

§°17 Enerco also argues that Free-port had the same duties as does an innkeeper to protect the personal property of its guests. We reject that notion. Under the common law, innkeepers had a relatively strict duty to protect the personal property of travelers for public policy reasons. See 40A Am.Jur.2d Hotels, Motels, and Restaurants § 131 (1999). Travelers and strangers needed to be able to trust the honesty of innkeepers and were entitled to special treatment as guests. See id.; Fisher v. Bonneville Hotel Co., 55 Utah 588, 188 P. 856, 859 (1920). This unusually strict duty to guests imposed by the common law on innkeepers has had very narrow application. See, e.g., Fisher, 188 P. at 858-59 (drawing distinction between guests and boarders).

{18 Enerco, as a tenant, is not a guest of Freeport. "A lease 'conveys an interest in land and transfers possession [of a space].' '' Keller v. Southwood N. Med. Pavilion, Inc., 959 P.2d 102, 107 (Utah 1998) (internal quotation omitted) (citing 49 Am. Jur.2d Landlord and Tenant § 21 (1995)). A tenant, being in exclusive possession of a property, cannot be fairly considered a guest of the property or the landlord. The public policy justifying the common law's heightened duty of innkeepers to safeguard travelers' personal belongings has no application to a landlord-tenant relationship.

III WAREHOUSEMAN

{19 Enerco argues that under the Uniform Commercial Code, which Utah has adopted, see Utah Code Ann. §§ TOA-1 to-11 (1997 & Supp.2001), Freeport is liable for Enerco's stolen merchandise. Emereo supports its argument by claiming that the definition of a warehouseman under Utah law applies to Freeport. We disagree.

€20 Utah Code Section 70¥A-7-102(1)(b) defines a warehouseman as "a person engaged in the business of storing goods for hire." Utah Code Ann. § 70A-7-102(1)(b) (1997). "A warehouseman is liable for damages for loss of or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances. ..." Utah Code Ann. § 7OA-7-204(1) (1997); see also Barlow Upholstery & Furniture Co. v. Emmel, 533 P.2d 900, 901 (Utah 1975).

{21 The transaction that a warehouseman engages in is a bailment. See Black's Law Dictionary 1578 (7th ed.1999). Acting as a bailee, the warehouseman "acknowledges possession of goods and contracts to deliver them." Utah Code Ann. § T70A-7-102(1)(a). Therefore, the question of whether or not someone is a warchouse-man depends upon whether he has accepted "the responsibility of safekeeping the property of others entrusted to him.'' Barlow Upholstery & Furniture Co., 533 P.2d at 901.

22 The plain language of the lease agreement entered into by Freeport and Enerco did not make Freeport responsible for safekeeping Enerco's property. The agreement leases specific "premises" to Enereo for monthly payments. As mentioned above, a lease "conveys an interest in land ... [and] must convey a definite space and must transfer exclusive possession of that space to the lessee.'' Keller, 959 P.2d at 107 (citing 49 Am.Jur.2d Landlord and Tenant § 21 (1995). Thus, the very nature of a lease agreement makes Enerco the sole possessor of the merchandise stored on the leased premises. See id. Freeport did not have possession of Enereo's property and was not in a position to safeguard it. The fact that Enerco chose to use the leased space as a warehouse does not make Freeport a warehouseman.

CONCLUSION

123 We affirm the trial court's grant of summary judgment to Freeport. We find that (1) Freeport did not breach the lease agreement, (2) Freeport did not have a duty to protect the personal property of Enereo from third parties beyond that specified in the lease agreement, and (8) Freeport was not a warehouseman under Utah law.

424 Associated Chief Justice DURRANT, Justice HOWE, Justice RUSSON, and Justice WILKINS concur in Chief Justice DURHAM's opinion.

      . The duty of an implied warranty of habitability applies to commercial as well as residential leases. See Richard Barton Enters., Inc. v. Tsern, 928 P.2d 368, 376 (Utah 1996).

      . The common law rule making an innkeeper practically an insurer of the property of its guests has been greatly limited in Utah by statute. See Utah Code Ann. §§ 29-1-1 to-3 (1998).


author: DURHAM, Chief Justice:

text:
    2002 UT 80
    STATE of Utah, Plaintiff and Respondent, v. Michael Trevor MARTINEZ, Defendant and Petitioner.
    No. 20010023.
    Supreme Court of Utah.
    Aug. 9, 2002.

      Mark L. Shurtleff, Att'y Gen., Joanne C. Slotnik, Asst. Att'y Gen., Salt Lake City, for plaintiff.
    Joan C. Watt, Lynn R. Brown, Stephen W. Howard, Salt Lake City, for defendant.
   On Certiorari to the Utah Court of Appeals

DURHAM, Chief Justice:

11 Defendant Michael Trevor Martinez was convicted of unlawful sexual activity with a minor, a third degree felony, in violation of section 76-5-401 of the Utah Code. Defendant's conviction was upheld by the Utah Court of Appeals. Defendant appeals, arguing that the court erred when it held that unlawful sexual activity with a minor is a strict liability crime and that imposition of strict liability does not violate defendant's federal due process rights. We affirm.

BACKGROUND

[ 2 Defendant was nineteen years old when he had sexual intercourse with a fifteen-year-old girl. Defendant was charged with unlawful sexual intercourse in violation of section 76-5-401. Before trial, defendant filed a motion in limine to determine whether he could submit evidence in support of an affirmative defense that the victim represented herself to be seventeen years old at the time of the sexual intercourse. Defendant contended that section 76-5401 does not impose strict liability and that he should therefore be allowed to present evidence that he did not know the victim's age. Defendant also argued that if the statute does impose strict liability, it violates federal and state due process requirements.

13 The trial court denied defendant's motion, relying on section 76-2-804.5 of the Utah Code which excludes the defense of mistake as to the victim's age in a prosecution for unlawful sexual intercourse. In addition, the trial court determined that neither section 76-2-804.5 nor section 76-5-401 violates due process under either the State or the federal constitution. Defendant entered a conditional guilty plea to unlawful sexual intercourse, subject to an appeal of the trial court's denial of defendant's pre-trial motion.

14 On appeal, the Utah Court of Appeals held that: (1) the legislature clearly intended a violation of section 76-5-401 to be a strict liability crime and expressly precluded the defense of mistake as to the victim's age; and (2) defendant's federal due process rights have not been violated because the statutory scheme reflects careful consideration of protection for minors and rationally furthers a legitimate governmental interest. See State v. Martinez, 2000 UT App 320, 14 P.3d 114. This court granted certiorari.

STANDARDS OF REVIEW

¶ 5 "When exercising our certiorari jurisdiction, we review the decision of the court of appeals and not that of the trial court.'' Salt Lake City v. Roberts, 2002 UT 30, ¶ 15, 44 P.3d 767 (quoting Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 13, 9 P.3d 762). Whether section 76-5-401 of the Utah Code imposes strict liability is a question of statutory construction, which we review for correctness, according no deference to the legal conclusions of the court of appeals. Id.; see also Grand County v. Rogers, 2002 UT 25, ¶ 6, 44 P.3d 734.

T6 A challenge to the constitutionality of section 76-5-401 is also a question of law, which we review for correctness. State v. Morrison, 2001 UT 73, ¶ 5, 31 P.3d 547 (citing State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191). "When addressing such a challenge, this court presumes that the statute is valid, and we resolve any reasonable doubts in favor of constitutionality." Id.

ANALYSIS

T7 Section 76-5-401 of the Utah Code governs the crime of unlawful sexual activity with a minor. On appeal, defendant argues that this statute does not impose strict liability because it fails to clearly indicate a legislative purpose to do so, and that the crime of unlawful sexual intercourse with a minor requires a culpable mental state of at least recklessness. He also argues that if section 76-5-401 does impose strict liability, it violates his federal right to due process for failing to require proof of a culpable mental state. We address each of these arguments in turn.

I. STRICT LIABILITY UNDER SECTION 76-5-401

18 "When interpreting statutes, our primary goal is to evince 'the true intent and purpose of the Legislature.' '' State ex. rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, ¶ 10, 44 P.3d 680 (quoting Jensen v. Intermountain Health Care, Inc., 679 P.2d 903, 906 (Utah 1984)). We discern legislative intent and purpose by first looking to the "best evidence" of its meaning, which is the plain language of the statute itself. Id.; see also Platts v. Parents Helping Parents, 947 P.2d 658, 662 (Utah 1997). When examining the statutory language we assume the legislature used each term advisedly and in accordance with its ordinary meaning. Tooele County, 44 P.3d 680, 2002 UT 8 at ¶ 10 (citing Nelson v. Salt Lake County, 905 P.2d 872, 875 (Utah 1995)); see also Platts, 947 P.2d at 662. Furthermore, we "avoid interpretations that will render portions of a statute superfluous or inoperative.'' Hall v. State Dep't of Corr., 2001 UT 34, ¶ 15, 24 P.3d 958.

19 Section 76-5401 states in relevant part:

(1) For purposes of this section "minor" is a person who is 14 years of age or older, but younger than 16 years of age, at the time the sexual activity described in this section occurred.
(2) A person commits unlawful sexual activity with a minor if ... the actor:
(a) has sexual intercourse with the minor ...
(3) A violation of subsection (2) is a third degree felony unless the defendant establishes by a preponderance of the evidence the mitigating factor that the defendant is less than four years older than the minor at the time the sexual activity occurred, in which case it is a class B misdemeanor.

Utah Code Ann. § 76-5-401 (2001). Section 76-5-401 does not specify a culpable mental state for the crime of unlawful sexual activity with a minor. It simply says that "[a] person commits unlawful sexual activity with a minor if ... [the person] has sexual intercourse with the minor." The sole mitigating factor provided in the statute is if the defendant can show that he or she was fewer than four years older than the victim at the time of the offense. The plain language of section 76-5-401, therefore, does not require that a defendant intend to have sexual intercourse with a minor who is fourteen or fifteen years old. The commission of the sexual act itself is sufficient to violate the statute.

{10 When a statute does not supply a mental state for proscribed conduct, further guidance is provided by section 76-2-102 of the Utah Code, which states:

Culpable mental state required.... An offense shall involve strict liability if the statute defining the offense clearly indicates a legislative purpose to impose erimi-nal responsibility for commission of the conduct prohibited by the statute without requiring proof of any culpable mental state.

Utah Code Ann. § 76-2-102 (2001). We must therefore determine whether the legislature intended to impose eriminal liability for unlawful sexual activity with a minor without requiring proof that the defendant intended to engage in sexual intercourse with a fourteen or fifteen-year-old. If we find that this was the legislature's specific purpose, then the crime is one of strict lability, and proof of a culpable mental state is not required.

{11 The plain language of section 76-5-401 does not contain a mens rea element yet we may look to the relationship between other sections of the criminal code and the section at issue for further guidance on legislative intent. See State v. W.C.P., 1999 UT App 35, T8, 974 P.2d 302 ("In discerning the purpose of [the statute], we are guided by the relationship [of the section] to other see-tions of the criminal code."); see also State v. Bishop, 753 P2d 4839, 468 (Utah 1988)("[WJhen possible, statutes must be interpreted harmoniously with other statues relevant to the subject matter."). Section 76-2-304.5, entitled "Mistake as to victim's age not a defense," explicitly prohibits a defendant from raising mistake as to the victim's age as a defense to a violation of section 76-5401. Section 76-2-804.5 states:

It is not a defense to the crime of unlawful sexual activity with a minor, a violation of Section 76-5-401 ... that the actor mistakenly believed the victim to be 16 years of age or older at the time of the alleged offense or was unaware of the victim's true age.

Utah Code Ann. § 76-2-804.5(2)(2001). This section clearly states the legislative intent. The plain language of both section 76-2-304.5 and 76-5-401 shows that the legislature intended to impose criminal responsibility for sexual activity with a minor whether or not the defendant knew the victim's true age. Allowing the defense of mistake as to the victim's age, or requiring the prosecution to prove a mens rea for a violation of section 76-5-401 would render section 76-2-304.5 inoperative.

€12 Defendant's statutory analysis of the strict lability question focuses on the "clearly indicates a legislative purpose" language of section 76-2-102, to the exelusion of the rest of the sentence which reads, "... to impose criminal responsibility for commission of the conduct ... without requiring proof of any culpable mental state." That is, defendant seems to assert that clear legislative purpose cannot be discerned from the language of the statute, but that some other sign of legislative purpose is needed. However, as we have previously stated, "[the fundamental rule of statutory construction is that statutes are generally to be construed according to their plain language.'' Zoll & Branch, P.C. v. Asay, 932 P.2d 592, 594 (Utah 1997). Section 76-5-401 makes sexual intercourse with a fourteen or fifteen-year-old a violation of the statute, irrespective of defendant's knowledge of the victim's age, and section 76-2-804.5 specifically clarifies the legislature's intent regarding knowledge or mistake. We note that Utah is not unique in this regard. The majority of states do not allow mistake of age as a defense to statutory rape, and the defendant's knowledge of the victim's age is not an essential element of the crime. Colin Campbell, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 46 A.L.R. 5th 499, 508 (1997). ''Statutory rape, then, is commonly referred to as a strict-liability crime, meaning that the mental intent of the defendant is not important. The only inquiry is whether the 'act was performed on a prohibited person." Id. at ¶ 2[al; see also 6 Am.Jur.2d 63 Proof of Facts (2001) ("[MJost states treat statutory rape as an exception to the general rule, in that guilt is established on proof of the prohibited act, and the defendant's reasonable belief that the female was at or over the age of consent is not a defense").

113 Defendant argues that section 76-5-401, despite its plain language, does not clearly indicate a legislative intent to impose strict liability because general common law principles require a mens rea for criminal responsibility. Defendant fails to explain, however, why the legislature's imposition of strict lability for this particular crime would not fall within one of the recognized exceptions to the general mens rea rule, or to explain exactly why a plain language reading of the statute negates strict Hiability. Instead, defendant repeatedly asserts the conclusory argument that section 76-5401 "does not clearly indicate that the Legislature intended that unlawful sexual intercourse with a minor should be a strict liability crime" and cites other factors and policy reasons the court should consider in discerning the legislature's true intent. The statute, however, is not ambiguous and we decline to read strict liability out of the statute. Unlawful sexual activity with a minor is a strict liability crime.

II. CONSTITUTIONALITY OF SECTION 76-5-401

T14 Defendant next argues that the imposition of strict liability for unlawful sexual activity with a minor violates his federal right to due process because the State can obtain a conviction without proof of a eulpa-ble mental state and without an acceptable rationale for dispensing with such proof. Defendant further claims that the statute does not fit within one of the narrow exceptions to a general mens rea requirement, and therefore it imposes strict lability in violation of his fundamental due process rights.

[ 15 At the outset, we note that our review is restricted to the question of whether the legislature may constitutionally impose strict liability for the crime of unlawful sexual activity with a minor. We do not comment on the legislature's wisdom in imposing strict liability; our inquiry is whether due process requires that defendant be allowed to defend the charge on the grounds that he reasonably believed the victim was over the age of fifteen, or conversely, whether due process requires that the State prove that defendant knew the victim's age. CF State v. Owens, 352 Md. 663, 724 A.2d 48, 48 (Md.1999)(Finding that the legislature intended strict liability for statutory rape was not a reflection on the wisdom of Maryland's policy.).

Y16 "The rights and principles protected by [the federal due process clause] include those that are 'so rooted in the traditions and conscience of our people as to be ranked as fundamental, and 'those which are implicit in the concept of ordered Hberty.'" State v. Herrera, 1999 UT 64, 121, 998 P.2d 854. It is true that courts have generally "adhered to the central thought that wrongdoing must be conscious to be criminal ... [and] have sought to protect those who were not blameworthy in mind." Morissette v. United States, 342 U.S. 246, 252, T2 S.Ct. 240, 96 L.Ed. 288 (1952). The requirement of a mens rea for criminal responsibility, however, is not an incontrovertible right. The United States Supreme Court " 'has never articulated a general constitutional doctrine of mens rea.'" Owens, 724 A.2d at 47 (quoting Powell v. Texas, 392 U.S. 514, 535, 88 S.Ct. 2145, 20 LEd.2d 1254 (1968)). Legislatures are free to "declare what constitutes an offense against society and to define the elements that constitute such an offense." United States v. Ransom, 942 F.2d T75, T76 (10th Cir.1991). Furthermore, the legislature has the authority to "exclude elements of knowledge and diligence from its definition" when defining an offense. Id. In addition, the United States Supreme Court has noted several exceptions to the general common law rule of requiring eriminal intent, including "sex offenses, such as rape, in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached the age of consent." Morissette, 342 U.S. at 252 n. 8, T2 S.Ct. 240.

117 As we noted earlier, the majority of state jurisdictions do in fact impose strict liability for sexual crimes with minors, and challenges to the federal constitutionality of such laws have failed. The Tenth Circuit Court of Appeals, evaluating a similar statute that did not allow the defense of reasonable mistake for sexual offenses with victims under twelve years of age, found that the statute did not "impinge on other protected constitutional rights" and that it "rationally further[ed] a legitimate governmental interest." Ransom, 942 F.2d at 776. The reasoning used in Ransom and relied upon by the court of appeals to uphold the constitutionality of section 76-5-401 is sound. See Martinez, 2000 UT App at 820, 14 18-20, 14 P.3d 114.

{18 The distinction defendant seeks to draw, that the legislature cannot impose strict liability for sexual offenses with fourteen and fifteen-year-olds, as opposed to younger children, without violating federal due process, is simply not supported. While there may be policy arguments for drawing a distinction between children under the age of twelve or thirteen, and fourteen and fifteen-year-old minors, the Utah legislature has deemed otherwise. The interest the legislature sought to protect, sexual offenses against children, even older ones, is a legitimate governmental interest and the statutory scheme before us rationally furthers that interest. As the court of appeals correctly stated, "Iwle simply cannot say that our legislature's determination to preclude the mistake of age defense for sexual activity with a minor fourteen or fifteen is so arbitrary as to run afoul of the Constitution." Id. at 28. Thus, section 76-5-401 does not violate federal due process.

CONCLUSION

119 Section 76-5-401 does impose strict liability for the crime of unlawful sexual activity with a minor. Consequently, the State does not need to prove that the defendant intended to have sexual intercourse with a fourteen or fifteen-year-old when he violated the statute. Furthermore, defendant's federal due process rights are not violated by imposing strict liability under 76-5-401. We thus affirm the decision of the court of appeals.

T 20 Associate Chief Justice DURRANT, Justice HOWE, Justice RUSSON, and Justice WILKINS concur in Chief Justice DURHAM's opinion.

      . Section 76-2-304.5 reads in relevant part:
      Mistake as to a victim's age not a defense.... (2) It is not a defense to the crime of unlawful sexual activity with a minor, a violation of Section 76-5-401, sexual abuse of a minor, a violation of Section 76-5-401.1, or an attempt to commit either of these offenses, that the actor mistakenly believed the victim to be 16 years of age or older at the time of the alleged offense or was unaware of the victim's true age.
      Utah Code Ann. § 76-2-304.5 (2001).

      . The trial court observed that although defendant could testify about what the victim told him about her age, the affirmative defense of mistake would not be available and the State need not prove a knowledge element.

      . Although the record shows that the defendant argued violations of both federal and state constitutional due process before the trial court, he apparently dropped the state due process claim in his appeals before the court of appeals and this court, and has made no state constitutional arguments before us.

      . We cite to the most recent version of the statute for convenience, although a 1998 amendment increasing the age differential between perpetrator and victim from three years to four years under subsection (3) was enacted two days before this offense occurred. That change is not at issue this appeal.

      . As the court of appeals noted below, it previously held that parallel language in section 76-2-304.5(1) shows a clear legislative intent to impose strict liability for sexual offenses against children under fourteen. State v. Martinez, 2000 UT App 320, 114, 14 P.3d 114 (citing W.C.P., 1999 UT App 35, 116-10, 974 P.2d 302, cert. denied, 984 P.2d 1023).

      . Defendant makes the tenuous argument that while 76-2-304.5 does prevent him from setting forth evidence that he did not know the victim's age, the State must still prove that he had the requisite criminal intent of at least recklessness.

        The court of appeals thoroughly addressed this argument in its opinion. We fully agree with that analysis and will therefore not address it further. See Martinez, 2000 UT App at 320, ¶¶ 11-12, 14 P.3d 114.

      . We have previously explained that "[t]he Utah Criminal Code follows the common law in establishing the basia proposition that a person cannot be found guilty of a criminal offense unless he harbors a requisite criminal state of mind or unless the prohibited act is based on strict liability.'' State v. Elton, 680 P.2d 727, 728 (Utah 1984); see also Utah Code Ann. § 76-2-101 (2001).

      . Defendant spends a portion of his argument discussing several cases in which Alaska appellate courts refused to read strict liability into the statutory rape statute on the grounds that "a refusal to allow the mistake-of-age defense to the charge of statutory rape would be to impose criminal liability without a criminal mental element and consequently would violate Alaska's Constitution." State v. Fremgen, 914 P.2d 1244, 1246 (Alaska 1996); see also State v. Guest, 583 P.2d 836 (Alaska 1978). Defendant, however, has not raised a state due process claim with this court.

      . For a more thorough discussion of Utah's sexual offenses against minors statutory scheme, see. Martinez, 2000 UT App at 320, 1% 21-22, 14 P.3d 114.