text:
    2003 UT 43
    Jeanne SCHAERRER, Plaintiff, Appellant, and Cross-Appellee, v. STEWART'S PLAZA PHARMACY, INC., Stewart Koeven, R.PH., Professional Compounding Centers of America, Inc., Jeffrey W. Johnson, M.D., American Home Products Corp., A.H. Robins Company, Inc., and Wyeth-Ayerst Laboratories Company, Inc., Defendants, Appellees, and Cross-Appellants.
    No. 20010471.
    Supreme Court of Utah.
    Oct. 21, 2003.

      Charles F. Abbott, Scott Walker, Provo, and Richard M. Heimann, Richard M. Franco, Pierce Gore, San Francisco, CA, for plaintiff.
    Michael P. Zaccheo, Bastiaan K. Coebergh, Salt Lake City, for defendants.
   WILKINS, Justice:

T1 Jeanne Schaerrer, plaintiff and appellant, appeals the district court's dismissal of her claims against Stewart's Plaza Pharmacy, Inc. and Stewart Koeven (collectively "Stewart's") for strict products lability. We affirm.

FACTUAL HISTORY

{2 In June 1995, Schaerrer met with her physician, Dr. Jeffrey W. Johnson, who prescribed fenfluramine and phentermine as a weight loss measure. Schaerrer took fenflu-ramine and phentermine as prescribed from June 1995 through June 1997. She was originally prescribed twenty-milligram fenflura-mine tablets to be taken three times daily and a generic phentermine capsule to be taken once daily. Schaerrer purchased her prescriptions from Woolsey's Pharmacy until October 1996.

13 Between November 1996 and June 1997, Schaerrer filled five prescriptions for fenfluramine and phentermine from Stewart's Plaza Pharmacy. Schaerrer switched pharmacies when a friend who worked at a doctor's office told her about a "one-a-day fen-phen" capsule available from Stewart's. Although he had never heard of a one-a-day fen-phen capsule, over the course of eight months Dr. Johnson wrote Schaerrer five prescriptions for sixty milligrams of fenflura-mine and twenty milligrams of phentermine to be taken onee daily. Dr. Johnson testified that he never independently investigated the one-a-day fen-phen capsule and that he assumed the pharmacy had determined the product's safety.

14 Stewart's began offering the one-a-day fen-phen capsule after Stewart Koeven, a pharmacist and the proprietor of the pharmacy, compounded raw fenfluramine manufactured by Professional Compounding Centers of America, Inc. ("PCCA"), phentermine powder manufactured by several pharmaceutical companies, methylcellulose as a time-release agent, and lactose as a filler. After creating his one-a-day fen-phen capsule, Koeven distributed samples of it to local physicians for experimental use with their patients. Eventually, Stewart's began receiving and filling prescriptions for the one-a-day fen-phen capsule. Koeven testified that neither he nor Stewart's Plaza Pharmacy ever tested the safety or efficacy of the compounded drug.

{5 Schaerrer began experiencing nausea, chest pains, and dizziness in early 1997. She stopped taking fenfluramine and phenter-mine in mid-July 1997, and shortly after required open heart surgery to repair two damaged heart valves.

PROCEDURAL HISTORY

T6 In December 1998, Schaerrer filed a complaint against several defendants: American Home Products Corporation (AHP) and other manufacturers of fenfluramine; Stewart's Pharmacy as the manufacturer of the one-a-day fen-phen capsule; Dr. Johnson, the prescribing physician; and PCCA as the pharmacy wholesaler that supplied the fen-fluramine used in the one-a-day fen-phen capsule. Dr. Johnson was dismissed from the suit when his unopposed motion for summary judgment was granted in August 2000, and Schaerrer settled her claims against AHP in September 2000. Earlier, in February 2000, Schaerrer settled her claims against PCCA and signed a settlement agreement that is pertinent to this appeal. In that settlement agreement, Schaerrer agreed to waive recovery against any defendant who could successfully claim indemnity from PCCA. Specifically, Schaerrer agreed that:

to the extent that any party to the lawsuit or any other tort feasor, person, or entity obtains a final judgment against PCCA for contribution or indemnity for damage arising from the subject of this Lawsuit, Plaintiff waives her right to recover from said party, tort feasor, person, or entity any damages up to and including the total amount of the judgment against PCCA for indemnity.

T7 Stewart's, the only remaining defendant, had filed its first motion for summary judgment in May 2000, arguing that Schaerrer had failed to offer any evidence to establish causation and that Stewart's, as a pharmacist, could not be held strictly Hable for filling a physician's prescription. The trial court denied the motion, holding that a reasonable jury could find that Stewart's acted as a manufacturer rather than a pharmacist and could therefore be subject to strict liability. At Stewart's request, the trial court reconsidered the motion and granted partial summary judgment to Stewart's. The trial court found that Schaerrer had not presented evidence of causation that would sustain a negligence claim and that only a strict products lability claim remained against Stewart's. Schaerrer had stipulated on the ree-ord that she would not "seek to introduce evidence that Stewart's compounded capsule cause[d] increased risk of injury to her." Consequently, the trial court's order preelud-ed Schaerrer from presenting evidence that Stewart's one-a-day fen-phen capsule, combining fenfluramine, phentermine, and a time-release agent in one dose, increased her risk of harm.

18 Stewart's filed a second motion for summary judgment in November 2000. It argued that since the only remaining claims against it were for strict products lability and Stewart's is entitled to indemnification from PCCA as an upstream manufacturer, Schaerrer's remaining claims should be dismissed under the terms of the PCCA settlement agreement because the agreement specifically stated that Schaerrer waived her right to recover from any party with the right to indemnification from PCCA. The trial court granted this motion and entered judgment dismissing Schaerrer's remaining claims against Stewart's.

T9 Schaerrer appeals the trial court's ruling dismissing her claims against Stewart's on the basis of the indemnification clause of the PCCA settlement agreement. Schaerrer argues that the claims should not have been dismissed because the doctrine of implied indemnity was abrogated by the Utah Liability Reform Act of 1987 (ULRA). According to Schaerrer, Stewart's cannot claim indemnity from PCCA because the ULRA abrogated all claims for contribution or indemnity and instead relies on comparative fault principles to distribute loss among responsible parties in a single action. Furthermore, Schaerrer argues, even if the court chooses to preserve the right to claim implied indemnity under the ULRA, Stewart's is not entitled to indemnity in this case because Stewart's is a manufacturer, not a passive pharmacist. Because Stewart's independently 'compounded the one-a-day fen-phen capsule and marketed it to local physi-clans, Schaerrer argues that the pharmacy became an active manufacturer and forfeited its right to indemnification.

110 Stewart's argues in response that it cannot be held liable for the harm Schaerrer suffered because there is no evidence of causation to support a negligence claim and that, as a downstream link in the chain of distribution for fenfluramine, it is entitled to indemnification from PCCA. In response to Schaerrer's argument that the ULRA's comparative negligence scheme abrogated all claims for implied indemnity, Stewart's argues that there can be no chain of distribution liability without implied indemnity. The result of such a conclusion, argues Stewart's, is that both its claim for indemnity from PCCA and Schaerrer's claims of strict products lability against Stewart's would be eliminated. According to Stewart's, the claim against it only exists because it was a link in the chain of distribution of fenfluramine. Onee the joint chain of distribution liability is eliminated and comparative fault applied, Stewart's can no longer be held liable for the damage done by fenfluramine, a defective product it merely sold rather than manufactured. According to Stewart's, Schaerrer's assertion that a jury could apportion fault among Stewart's and PCCA is incompatible with strict products liability principles.

T11 Furthermore, Stewart's maintains, Schaerrer is incorrect in asserting that even if implied indemnification is retained by the court it should not apply in this case because Stewart's was an "active" link in the chain of distribution. Stewart's relies on the trial court's undisputed finding that Stewart's did nothing to alter the fenfluramine used in the one-a-day fen-phen capsule to support its assertion that there is no basis for a claim involving the type of "active" conduct that would preclude upstream indemnity.

112 Finally, Stewart's cross-appeals the trial court's denial of summary judgment in its favor based on the finding that Stewart's could be held liable as a manufacturer in a strict products liability suit. It asks the court to adopt a rule that would allow a pharmacist to engage in tangential manufacturing activities without incurring strict products liability. Stewart's asserts that drug compounding is accepted pharmaceutical practice and not manufacturing activity. Based on the stipulation that Stewart's actions in compounding the one-a-day fen-phen capsule did not make the fenfluramine more dangerous, and their argument that it was simply following typical pharmaceutical practice, Stewart's claims it is a protected pharmacist, not a manufacturer. Because a pharmacist cannot dispense certain drugs without a valid physician's prescription, Stewart's maintains that a pharmacist should be immune from strict products lability suits.

{13 Schaerrer, in response, urges the court to subject pharmacists to strict products liability claims if the pharmacist plays a manufacturing role. Schaerrer argues that Stewart's actions clearly went beyond those of a compounding pharmacist and that Stewart's effectively manufactured and marketed a new drug without abiding by FDA regulations.

ANALYSIS

I. STANDARD OF REVIEW

114 Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c) When reviewing a district court's denial of summary judgment, we grant no deference to the district court's legal conclusions and review them for correctness. Grynberg v. Questar Pipeline Co., 2003 UT 8, ¶ 20, 70 P.3d 1.

II. STEWART'S EXEMPTION FROM STRICT PRODUCTS LIABILITY

1 15 In this case, the essential question is whether the conduct of a professional pharmacist has transcended pharmaceutical practice and become that of a pharmaceutical drug manufacturer. Schaerrer argues that Stewart's acted as a manufacturer and should be strictly Hable for the product it created. Stewart's argues in response: that as a manufacturer, it has a right of indemnity from PCCA that essentially negates Schaerrer's claims; that strict products liability does not apply to pharmacists; and that any pharmacist dispensing drugs according to a valid physician's prescription is governed by the applicable laws of negligence and professional misconduct, not the strict lability laws of product manufacturers and sellers. We first discuss our adoption of the learned intermediary rule, which exempts pharmacists from strict products liability, and then analyze whether the rule applies to Stewart's conduct in this case, concluding that Stewart's was acting as a compounding pharmacy and is exempt from strict products lability for the one-a-day fen-phen capsule under the facts of this case as presented on appeal.

A. Strict Products Liability and Comment K in Utah

¶ 16 This court expressly adopted the doe-trine of strict products liability set forth in section 402A of the Restatement (Second) of Torts (1965) in Hahn v. Armco Steel Co., 601 P.2d 152, 158 (Utah 1979). Section 402A reads:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. |

Restatement (Second) of Torts § 402A (1965). We have since applied section 402A to require that in order to recover on strict liability against a seller, the plaintiff must prove (1) that a defect or defective condition of the product made it unreasonably dangerous, (2) that the defect was present at the time of the product's sale, and (8) that the defective condition was the cause of the plaintiff's injuries. Interwest Constr. v. Palmer, 923 P.2d 1350, 1356 (Utah 1996).

17 This court recognized an exception to strict liability for manufacturers and sellers of unavoidably unsafe products when it adopted the reasoning of comment k to seetion 402A in Grundberg v. Upjohn Co., 813 P.2d 89 (Utah 1991). Comment k, known as the unavoidably unsafe products doctrine, recognizes that "[tlhere are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use." Id. at 91 (quoting Restatement (Second) of Torts § 402A emt. k (1965)). Such products, according to comment k, cannot subject a seller to strict liability for defects if prepared, distributed, and marketed properly and with appropriate directions and warnings.

' 118 Based on this reasoning, we held in Grundberg that prescription drugs cannot, as a matter of law, be defective if approved by the United States Food and Drug Administration (FDA) and "properly prepared, compounded, packaged, and distributed." Id. at 90.

We are persuaded that all prescription drugs should be classified as unavoidably dangerous in design because of their unique nature and value, the elaborate regulatory system overseen by the FDA, the difficulties of relying on individual lawsuits as a forum in which to review a prescription drug's design, and the significant public policy considerations noted in Brown [concerning the financial and social costs of imposing strict liability].

Id. at 94. Thus, under Utah law, comment k shields manufacturers and sellers of pre-seription drugs from strict liability based on allegations of a design defect.

[19 However, comment k does not extinguish strict liability claims based on manufacturing flaws or inadequate warnings. Id. at 92. Thus, this court protected manufacturers and sellers of prescription drugs from strict liability design defect claims while clearly assigning them the duty to warn of the risks associated with the use of their products. i

B. The Learned Intermediary Rule and Pharmacist Liability

120 We next consider the learned intermediary rule. Under this rule, manufacturers of prescription drugs have a duty to warn only the physician prescribing the drug, not the end user or patient. Lansdell v. Am. Home Prods. Corp., No. CV-99-S-2110-NE, 1999 WL 33548541, at *5, 1999 U.S. Dist. LEXIS 22540, at *14-*15 (N.D.Ala. Oct. 26, 1999). A manufacturer will be held directly liable to the patient for breach of the duty to make timely and adequate warnings to the medical profession of any dangerous side effects produced by its drug of which it knows or has reason to know. Barson v. E.R. Squibb & Sons, 682 P.2d 832, 835 (Utah 1984) (citing McEwen v. Ortho Pharm. Corp., 270 Or. 375, 528 P.2d 522 (1974)). The physician, after having received complete and appropriate warnings from the drug manufacturer, acts as a learned intermediary between the drug manufacturer and the patient when preparing the drug prescription. It is the physician who is best situated to weigh the potential risks associated with a prescription drug against the possible benefits of the drug and the unique needs and susceptibilities of each patient. Lansdell, at *5,. The physician thus has the ability to combine medical knowledge and training with an individualized understanding of the patient's needs, and is the best conduit for any warnings that are deemed necessary.

' 21 Many courts extend the learned intermediary rule to exempt pharmacists from strict products liability under a failure to warn theory. Seq, eg., id. at *5-6; Kohl v. Am. Home Prods. Corp., 78 F.Supp.2d 885, 895-96 (W.D.Ark.1999); Coyle v. Richardson-Merrell, Inc., 526 Pa. 208, 584 A.2d 1383, 1386-87 (1991); McKee v. Am. Home Prods. Corp., 113 Wash.2d 701, 782 P.2d 1045, 1049-51 (1989). In Coyle, one of the seminal cases on the learned intermediary rule, the Pennsylvania Supreme Court noted that it would be "incongruous" to impose upon pharmacists a duty to warn patients directly when the manufacturer did not have a similar duty. 584 A.2d at 1886. Requiring a pharmacist to warn patients of the potential risks of a prescription drug would "have the effect of undermining the physician-patient relationship by engendering fear, doubt, and second-guessing." Id. Pharmacists might present patients with confusing or contradictory information, cast doubt on the propriety of a physician's legitimate exercise of sound medical judgment, or even refuse to fill valid prescriptions in an effort to avoid lability.

122 Physicians are health care specialists, trained to act as "exclusive intermediaries" in the drug distribution system and obligated to provide appropriate medical care and supervision. Both manufacturers and pharmacists are limited in their ability to distribute FDA-regulated drugs because neither has direct access to the patient: Only through a physician's prescription may any prescription drug sale occur.

Unlike the marketing system for most other products, the distribution system for prescription drugs is highly restricted. Pharmacists, as suppliers, do not freely choose which "products" they will make available to consumers in any given instance, and patients, as consumers, do not freely choose which "product" to: buy. Physicians exercising sound medical judgment act as intermediaries in the chain of distribution, preempting, as it were, the exercise of discretion by the supplier-pharmacist, and, within limits, by the patient-consumer. With regard to the communication of warnings, we have recognized this as a real distinction that requires a different rule.

Id. We agree with the Pennsylvania Supreme Court that the learned intermediary rule must "carry through to the pharmacist as well" to serve its purpose fully. Id. We also recognize that this unique set of relationships necessitates adoption of the rule exempting pharmacists from strict products Hability for failure to warn of the risks of preseription drugs. So long as a pharmacist's ability to distribute prescription drugs is limited by the highly restricted, FDA-regulated drug distribution system in this country, and a pharmacist cannot supply a patient with pre-seription drugs without an intervening physician's preseription, we will not impose a duty upon the pharmacist to warn of the risks associated with the use of prescription drugs.

C. Stewart's Conduct as a Pharmacy or Drug Manufacturer

123 We next address the pivotal question in this case: Does Stewart's conduct fall under the category of pharmacist or drug manufacturer? Schaerrer alleges that Stewart's has stepped outside the bounds of appropriate compounding pharmacist behavior through the following conduct: (1) creating a new drug product (2) prior to receipt of a valid prescription order for the product, (3) marketing the new product to local physicians, and (4) providing samples of the new product to local physicians for distribution to their patients. Since Stewart's cannot be strictly liable as a pharmacist, there must be sufficient evidence that Stewart's was no longer acting as a pharmacy, and instead had become a drug manufacturer when it created the one-a-day fen-phen capsule.

1 24 According to Stewart Koeven's testimony, he noticed that a number of the patients who filled their prescriptions for fen-fluramine and phentermine at his pharmacy were not complying with their prescriptions. Specifically, according to Koeven, they were not taking all of the Pondim (fenfluramine) that their physicians preseribed. In approximately May of 1996, Koeven decided, based on his experience as a pharmacist with other time-release products, that a time-release version of the standard regime prescribed by physicians in the area might improve patient compliance. He contacted the physicians whose patients had been having compliance problems to determine whether they would be interested in the compounded drug product. The physicians expressed interest, and Koeven created sample capsules for some of the physicians to distribute to ten to twelve patients. Eventually, Koeven began receiving and filling prescription orders for his compounded one-a-day fen-phen capsules.

125 In Utah, the practice of pharmacy is defined by statute. According to section 58-17a2-102(48) of the Utah Code, pharmaceutical practice includes "compounding, packaging, labeling, dispensing, administering, and the coincident distribution of prescription drugs and devices, provided that the administration of a prescription drug or device is ... pursuant to a lawful order of a practitioner when one is required by law; ... [and includes} providing pharmaceutical care." Utah Code Ann. § 58-172-102(48)(b), (J) (2002).

| (a) "Pharmaceutical care" means carrying out the following in collaboration with a prescribing practitioner, and in accordance with division rule:
(i) designing, implementing, and monitoring a therapeutic drug plan intended to achieve favorable outcomes related to a specific patient for the purpose of curing or preventing the patient's disease;
(ii) eliminating or reducing a patient's symptoms; or
M) arresting or slowing a disease process. ©
(b) "Pharmaceutical care" does not include prescribing of drugs without consent of a prescribing practitioner.

Id. § 58-17a-102(29) (2002). Drug compounding is recognized as a traditional function of pharmaceutical practice and "is a process by which a pharmacist or doctor combines, mixes, or alters ingredients to create a medication tailored to the needs of an individual patient." Thompson v. W. States Med. Ctr., 535 U.S. 357, 360, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002). Utah Code section 58-17a-102(6) defines prescription drug compounding as "the preparation, mixing, assembling, packaging, or labeling of reasonable quantities of a prescription drug ... by a licensed pharmacist," including "the preparation of a reasonable quantity of a prescription drug ... in anticipation of a valid prescription or medication order to be dispensed or administered to a patient based on routine, regularly observed prescribing patterns of a practitioner." Notably, the statute excludes from the definition of compounding the preparation of any prescription drugs "in a dosage form which is regularly and commonly available from a manufacturer in quantities and strengths prescribed by a practitioner." Utah Code Ann. § 58-172-102(6)(d) (2002).

126 With these statutory definitions in mind, we observe that much of Stewart's conduct falls within the guidelines of acceptable pharmaceutical practice in Utah. Consulting with physicians regarding the compliance problems of their patients, designing a new drug product that is not otherwise available based on numerous prescriptions previously written by physicians, and dispensing the new drug product directly to patients only after receipt of a valid preseription order all appear to be legitimate activities for a licensed pharmacist. We find no statutory prohibition against such behavior, nor do the parties cite any authority on such a prohibition.

127 Marketing efforts are not addressed directly in the statutes, except as they may qualify as "collaboration" between a pharmacist and physician, but a recent United States Supreme Court case guides us in our analysis. In Thompson v. Western States Medical Center, the Court determined that Congress may not prohibit pharmacists from soliciting prescription orders or advertising or promoting "the compounding of any particular drug, class of drug, or type of drug." 585 U.S. 357, 365, 377, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002). In the early 1990s the FDA promulgated an interpretive rule or policy statement concerning the "large-scale speculative 'compounding' " of some pharmacies that appeared to be overstepping the bounds of traditional pharmaceutical practice. Prof'ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 593, 594 (5th Cir.1995). In the Food and Drug Administration Modernization Act of 1997 (FDAMA), Congress enacted some of the FDA's policies through its requirements for exemption of pharmaey-com-pounded drugs from the new drug approval process. Thompson, 535 U.S. at 364, 122 S.Ct. 1497. A group of pharmacies that specialize in drug compounding challenged two of the FDAMA's requirements for exemption as violations of their First Amendment right to free speech: (1) that prescriptions for compounded drugs be unsolicited and (2) that advertising or promoting "the compounding of any particular drug, class of drug, or type of drug" be prohibited. The Supreme Court struck down these two speech-related provisions as unconstitutional. In light of this decision, we find it difficult to endorse an argument for subjecting a pharmacy to strict products liability as a manufacturer based upon the pharmaey's exercise of constitutionally protected commercial speech.

{28 For over ten years, the FDA has expressed concern that increasing numbers of pharmacies are engaged in manufacturing behavior "that is clearly outside the bounds of traditional pharmacy practice." FDA Office of Regulatory Affairs, Compliance Policy Guide Section 460.200 (May 2002). The FDA's most recent policy statement governing review of compounding pharmacies, issued after the Thompson decision, presents nine acts which it deems provocative:

1. Compounding of drugs in anticipation of receiving preseriptions, except in very limited quantities in relation to the amounts of drugs compounded after receiving valid prescriptions.
2. Compounding drugs that were withdrawn or removed from the market for safety reasons....
3. Compounding finished drugs from bulk active ingredients that are not components of FDA-approved drugs.
4. Receiving, storing, or using drug substances without first obtaining written assurance from the supplier that each lot has been made in an FDA-registered facility.
5. Receiving, storing, or using drug components not guaranteed to meet official compendia requirements.
6. Using commercial scale manufacturing or testing equipment for compounding drug products.
7. Compounding drugs for third parties who resell to individual patients or offering compounded drug products at wholesale to other state licensed persons or other commercial entities for resale.
8. Compounding drug products that are commercially available in the marketplace or that are essentially copies of commercially available FDA-approved drug products....
9. Failing to operate in conformance with applicable state law regulating the practice of pharmacy.

Id. While the policy statements of the FDA are by no means binding on this court, they do provide meaningful guidance on a question that few, if any, courts in this country have yet considered.

29 According to the facts alleged in this case, Stewart's only act that might have run afoul of these prohibitions is the first-that no compounding occur in advance of a pre-seription except in limited quantities in relation to future prescriptions. Since the ree-ord before us does not disclose the exact quantities of the one-a-day fen-phen capsules that Stewart's compounded in advance of any prescription, nor how many prescriptions were received after advertising the one-a-day fen-phen, it is possible that the ratio would raise warning flags. However, it is clear that the FDA does not see all pre-preseription compounding as clearly indicative of manufacturing behavior, nor do we. Some pre-prescription compounding activity is appropriate, particularly if the purpose and scale of the activity is in line with the traditional role that pharmacies play in the health care process.

130 In Thompson, the Court noted that the government must be able to distinguish between "small-seale compounding and large-scale drug manufacturing" to preserve "the effectiveness and integrity of the FDCA's new drug approval process" while maintaining the availability of specially compounded drugs for those patients who need them. 585 U.S. at 869-70, 122 S.Ct. 1497. Clearly, according to the Court and the policy statements of the FDA, the size and scale of a pharmacy's compounding practice is one of the most important indicators of improper "manufacturing" conduct. In this case, we have no evidence of the overall seope of Stewart's practice, nor of the proportion of that practice committed to compounding the one-a-day fen-phen. All we know is that some of Stewart's clients had compliance problems, and that at least seven physicians began prescribing the one-a-day fen-phen after it was developed. There is no indication from the record that Stewart's was conducting a large-scale, speculative, compounding business similar to that of a commercial pharmaceutical drug manufacturer. Nor was Stewart's using commercial scale equipment, compounding drugs for resale or wholesale distribution, or, as Schaerrer emphasizes, compounding a drug already available in the marketplace. Finally, there are no allegations that Stewart's violated any state or federal regulations governing the use of FDA-regulated drugs or the practice of pharmacy.

31 We do find the distribution of sample one-a-day fen-phen capsules to local physicians problematic, and perhaps indicative of the type of marketing used by large-scale drug manufacturers. However, the parties have provided no authority, nor do we find any, for the proposition that pharmacies must limit their advertising efforts to written materials and other strategies that do not include limited distribution of product samples. The fact remains that the pharmacy did not distribute the samples directly to patients, and cannot profit from any sale of one-a-day fen-phen without a valid prescription. The physician remains a gatekeeper between the compounded drug and the patient, and continues to control the patient's access to all prescription drugs.

1382 Furthermore, strict Hability for manufacturers exists in large part as a deterrent and a method, of allocating the risk of loss among those best equipped to deal with it. Compounding pharmacies provide a unique and valuable service in our health care system, one which we have no reason to deter at this point. Nor do we believe that pharmacies are in a good position to insure against, or take steps to reduce the risk of, harm done by the drugs used in their compounded products through additional warnings. So long as the pharmacy is acting within the rules and regulations set forth by the state and federal governments for the practice of pharmacy, providing compounded drug products to patients after receipt of a physician's prescription, and confining themselves to the traditional scope of pharmaceutical care, we need not shift the pharmacy into the category of drug manufacturer for the purpose of strict products liability.

183 The conduct alleged in this case is not that of a drug manufacturer. Everything that Stewart's did was in the context of a compounding pharmacist. Stewart's may have overstepped the bounds of appropriate pre-prescription compounding or marketing activity, but that question is best reserved for state and federal regulators. For a pharmacy to eross the line and become a manufacturer, there must be evidence of large-scale compounding activity, third party resale or wholesale distribution efforts, or other significant indicators of questionable and non-traditional pharmaceutical behavior. A pharmacy taking steps to improve compliance within a small group of patients in the local community it serves through legitimate marketing efforts and without violating state or federal regulations is not strictly liable as a manufacturer for the compounded drug product that it provides. The learned intermediary rule shields pharmacists from strict products liability so long as they are engaged in the practice of pharmacy. Whether their pharmaceutical practice is improper or excessive is a question of negligence, not strict liability, so long as the conduct occurs within the standard framework of pharmacists.

III. PHARMACIST LIABILITY IN UTAH

$34 The only remaining grounds for a claim against Stewart's in this case is negligence. While pharmacists are exempt from strict products liability in Utah, a pharmacist may still be liable for claims of professional malpractice or negligence. However, Schaerrer disposed of any claim for malpractice or negligence when she stipulated that the one-a-day fen-phen did not increase her risk of harm.

$35 A successful medical malpractice claim requires that the plaintiff prove the standard of care expected of the medical professional, breach, causation, and damages. Robb v. Anderton, 863 P.2d 1322, 1327 (Utah Ct.App.1993). Specifically, a pharmacist has a generally recognized duty to "possess and exercise the reasonable degree of skill, care, and knowledge that would be exercised by a reasonably prudent pharmacist in the same situation." Marjorie A. Shields, Annotation, Exemplary or Punitive Damages for Pharmacist's Wrongful Conduct in Preparing or Dispensing Medical Prescription-Cases not Under Consumer Product Safety Act, 109 A.L.R.5th 397, § 2 (2003). This duty is most commonly breached within the pharmacy profession by negligent packaging or dispensing of prescription drugs. For example, breach of a pharmacist's duty can take the form of a misfilled prescription, dispensing a drug other than the one prescribed, giving an incorrect dosage, improper labeling or directions for use of the drug, or selling a prescription meant for one customer to another customer. Timothy E. Travers, Annotation, Druggist's Civil Liability for Injuries Sustained as a Result of Negligence in Incorrectly Filling Drug Prescriptions, 3 A.L.R.4th 270 (1981). Lia bility for negligence may also be incurred if a pharmacist adds or substitutes an ingredient other than the one prescribed in a compounded drug or dispenses an incorrect percentage of ingredients in a compounded drug. Id. Although pharmacists can be held Hable for negligence if there is a breach of duty, pharmacists are protected from claims if they fill a prescription precisely as directed by the manufacturer or physician. Elliot v. A.H. Robins Co., 262 A.D.2d 132, 691 N.Y.S.2d 501, 502 (App.Div.1999).

136 Even in cireumstances where a pharmacist has clearly breached his professional duty by negligently packaging or dispensing a prescription drug, a negligence claim will fail unless the plaintiff can prove the negligent behavior caused the injuries in question. In the current case, Stewart's cannot be held Hable for the harm Schaerrer suffered as a result of taking the one-a-day fen-phen tablet. Although Stewart's compounded the tablet, Schaerrer conceded at trial that no additional damage was suffered because of the compounding of the fenflura-mine and phentermine. Without evidence of increased harm from Stewart's activity, there can be no causation. As a result of the Schaerrer stipulation that Stewart's compounding was not a proximate cause of the damage she suffered, Schaerrer cannot make out a complete negligence claim and therefore has no recourse against the pharmacy.

CONCLUSION

137 We affirm the district court's decision to dismiss Schaerrer's claims, although on different grounds. We extend the learned intermediary rule to exempt pharmacies from strict products liability when they properly fill a physician's prescription. We hold that a pharmacy collaborating with local physicians to develop a unique compounded product aimed at improving patient compliance and distributed according to pre-seription cannot be re-classified as a drug manufacturer and held strictly liable for the compounded drug product. Finally, we note that the only basis for a claim against Stewart's is in negligence, which Schaerrer cannot allege in the absence of evidence of causation. The district court's dismissal of the case is affirmed.

138 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Judge NEHRING concur in Justice WILKINS opinion.

189 Justice RUSSON did not participate herein; District Judge RONALD E. NEHRING sat.


source: Caselaw Access Project

author: NEHRING, Justice:

license: Public Domain

text:
    2003 UT 45
    Donald T. WILLS and Rita Wills, Plaintiffs and Appellees, v. HEBER VALLEY HISTORIC RAILROAD AUTHORITY, Defendant and Appellant.
    No. 20020170.
    Supreme Court of Utah.
    Oct. 21, 2003.
    Samuel D. McVey, Lorin C. Barker, Salt Lake City, for plaintiffs.
    Mark L. Shurtleff, Att'y Gen., Sandra L. Steinvoort, Naney L. Kemp, Asst. Att'ys Gen., Salt Lake City, for defendant.
   NEHRING, Justice:

11 Donald and Rita Wills ("the Willses") were injured in a collision between their automobile and the Heber Valley Railroad train. The train is part of a "seenic and historic railroad" operated by the Heber Valley Historic Railroad Authority ("Railroad"), an entity created by the legislature. Utah Code Ann. §§ 9-3-802(1), 806(1) (Supp.2002). Pursuant to the Governmental Immunity Act ("Act"), id. § 63-80-83 (Supp.2002), and following the directives of Utah Code Ann. seetion 68-30-11(8)(b)@M(E) (Supp.2002), the Willses prepared a notice of claim which they mailed to "Attorney General, State of Utah, 160 East 300 South, 5th Floor, Salt Lake City, Utah 84114-0878." This is the address of the Heber Wells Building, which houses several divisions of the attorney general's office.

{2 No one responded to the Willses' notice, so they sued the Railroad. The Railroad moved to dismiss the Wilises' lawsuit. It claimed that although the Act mandates that the notice of claim be "directed and delivered" to the attorney general, the Wills-es failed to satisfy the statute because their notice went to the wrong office of the attorney general.

13 The trial court denied the Railroad's motion, and we agreed to an interlocutory review of the trial court's ruling that the notice strictly complied with the "direct and deliver" requirements of the Act, We review the trial court's ruling for correctness. State v. Schofield, 2002 UT 132, ¶ 6, 68 P.3d 667. We agree with the trial court and affirm,

14 We have long held that parties who seek to sue the State must strictly follow the requirements of the Act, Wheeler v. McPherson, 2002 UT 16, ¶ 11, 40 P.3d 632; Hall v. Utah State Dep't of Corr., 2001 UT 34, ¶ 23, 24 P.3d 958, and we do not retreat from that standard today. The Act allows for secant deviation from "how, what, when and to whom a party must direct and deliver a Notice in order to preserve his or her right to maintain an action against a governmental entity." Greene v. Utah Transit Auth., 2001 UT 109, ¶ 15, 37 P.3d 1156, 1159. This is reasonable because the plain language of the Act gives explicit guidance on these matters. The Act is silent, however, on the matter of where a notice of claim must be directed and delivered.

15 To fill this statutory void, we look to our traditional methods of statutory construction. Preeminent among these principles is that any proposed interpretation of a statute must be compatible with its purpose and objective. O'Keefe v. Utah State Ret. Bd., 956 P.2d 279, 280 (Utah 1998). According to the Railroad, the purpose of the notice provisions of the Act is to maximize efficiency of claim processing by limiting the delivery of notices to one location. Such efficien-ey, the Railroad argues, can be achieved only by interpreting the Act to mandate that a notice of claim be directed and delivered to the attorney general himself at the location in which he keeps a desk and chair. We find the Railroad's interpretation of the purpose of the Act's notice provision to be too narrow, and its view of the meaning of "direct and deliver" to be too restrictive.

¶6 We have previously determined that the purpose of the notice requirement of the Act is "to afford the responsible public authorities an opportunity to pursue a proper and timely investigation of the merits of a claim and to arrive at a timely settlement, if appropriate, thereby avoiding the expenditure of public revenue for costly and unnee-essary litigation." Stahl v. Utah Transit Auth., 618 P.2d 480, 482 (Utah 1980). Efficient claim processing is a component of this purpose, but neither our formulation of the Act's purpose nor that proposed by the Railroad supports an interpretation of the Act's notice of claim provision that requires service of the notice on the attorney general himself at a single location.

17 The attorney general might process claims with greater dispatch if notices were delivered to one address. However, concern over a diffusion of notice deliveries among the attorney general's numerous offices throughout the state has not stimulated the attorney general to tell the general public the address of his personal office, or to take any action to advance a "one address" policy apart from employing it as grounds to dismiss the Willses' lawsuit. To the contrary, a citizen's quest for the whereabouts of the attorney general using normal reference tools would yield no solid evidence of where he could be found.

1 8 Neither the telephone directory nor the attorney general's internet website discloses the location of the personal office of Utah's attorney general, Mark Shurtleff. The website highlights two addresses for the attorney general, making no distinction between them. One is the location in the State Capitol, the other the Heber Wells Building address used by the Willses. Correspondence sent to the Willses on official stationery of the attorney general bearing Mark Shurtleffs name on the letterhead carries the Heber Wells Building address. Had the Willses delivered their notice personally to the Heber Wells Building and sought directions from the building directory, they would have discovered that the fifth and sixth floors were home to the "Office of Attorney General." Even the briefs filed by the Railroad in this appeal indicate on their covers that attorney general Mark Shurtleffs address is the Heber Wells Building. By holding himself out to the public as having a presence in many offices about the state, the attorney general cannot reasonably be said to have only one location.

9 The attorney general oversees what is, in a very real sense, a large statewide law firm. As part of the managerial duties undertaken by the attorney general, he controls the manner in which his firm presents itself to the public. By failing to single out one location to accept notices of claim, and with neither an express nor implied statutory restriction to one site, the attorney general has acknowledged his presence in all of them.

{10 The Railroad likens the issue of where the notice of claim must be delivered to our statutory requirement that corporations identify a registered agent to whose single address official matters may be directed. Utah Code Ann. § 16-10a-504 (2001). This comparison merely highlights an important distinction between the Railroad's view of the purpose of the Act's notice requirement and ours. The corporate agent requirement exists to benefit those desiring to conduct official business with the corporation by providing a readily discoverable corporate whereabouts. It was not enacted to ease the administrative burdens of corporations. See Utah R. Civ. P. 4 advisory committee's note ("(Paragraph (d) l is ... designed to simplify and unify practice for ... service."). Thus, efficiency of the receiving body is not the foremost goal of any service requirement, and we do not find it to be the underlying policy of the Act's notice requirements.

11 Accordingly, because the Willses' notice of claim was directed and delivered to an office of the attorney general, it strictly complied with the requirements of the Act. The order of the trial court is affirmed.

1 12 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Justice PARRISH concur in Justice NEHRING's opinion.


text:
    2003 UT 44
    Katie SHAFER, Plaintiff and Appellant, v. STATE of Utah, Defendant and Appellee.
    No. 20020120.
    Supreme Court of Utah.
    Oct. 21, 2003.
    Peter W. Summerill, Salt Lake City, for plaintiff.
    Mark L. Shurtleff, Att'y Gen., Nancy Kemp, Asst. Att'y Gen., Salt Lake City, for defendant.
   NEHRING, Justice:

1 1 Like its companion case, Wills v. Heber Valley Historic Railroad Authority, 2003 UT 45, 79 P.3d 934, which we also decide today, this appeal concerns a personal injury lawsuit brought against the Heber Valley Railroad Authority ("Railroad"). This appeal presents us with the same issue we confronted in Wills: Does a notice of claim served on the attorney general at one of his offices, but not the office that he personally occupies, satisfy the requirement of the Governmental Immunity Act ("Act") that the notice be "directed and delivered" to the attorney general? Utah Code Ann. § 63-80-11(8)(b))(E) (Supp.2002). The trial court concluded that it did not and granted the Railroad's motion to dismiss. We disagree and reverse.

T2 Plaintiff Katie Shafer ("Ms.Shafer") was injured while disembarking from a train operated by the Railroad. She sent a notice of claim by certified mail to the attorney general, addressed to 515 East 100 South, Salt Lake City, UT 84101.

T3 The address to which the notice was mailed is the child support division of the attorney general's office. It is not the location of the personal office of the attorney general. The attorney general's personal office is located at the State Capitol Building, 236 North State Street.

T4 After receiving no response from the Railroad, Ms. Shafer filed a complaint in district court. The Railroad responded with a motion to dismiss. It claimed that Ms. Shafer had failed to strictly comply with the notice requirements of the Act. The district court granted the Railroad's motion.

1 5 The issue before us is one of statutory construction, which we review for correctness. Toone v. Weber County, 2002 UT 103, ¶ 4, 57 P.3d 1079. We examine the notice requirements of the Act against the backdrop of these facts using the analysis we explained in Wills, 2003 UT 45, 79 P.3d 934.

T6 The Act mandates that "the notice of claim shall be ... directed and delivered to ... the attorney general, when the claim is against the State of Utah." Utah Code Ann. § 63-30-11(8)(b)G@M(E). The Act does not state where a notice must be directed when the designated recipient has more than one address.

T7 To resolve this ambiguity, we look to the purpose and intent of the Act. That purpose is "to afford the responsible public authorities an opportunity to pursue a proper and timely investigation of the merits of a claim and to arrive at a timely settlement, if appropriate, thereby avoiding the expenditure of public revenue for costly and unnee-essary litigation." Stahl v. Utah Transit Auth., 618 P.2d 480, 482 (Utah 1980).

{8 In Wills, we held that the delivery of a governmental immunity notice on the attorney general at any location where he holds himself out as having a presence is congruent both with the purpose of the Act and our requirement that parties strictly comply with its provisions. 2008 UT 45 at T11. That holding dictates the outcome here.

{9 The fact that Ms. Shafer directed her notice of claim to an address that houses the child support division of the attorney general's office does not alter the fact that it is a location where the attorney general has presented himself to the public as maintaining a presence. The nature of the work done at that site is not material. Rather, the relevant fact is who is doing the work-here, the attorney general. It is of no consequence that the address in this case was clearly identified as that of the child support division, nor would it matter if a notice were sent to any of the many statewide offices of the attorney general that are designated as housing a particular division. The attorney general has taken no affirmative steps to single out any of his addresses as the one suitable for delivery of notices of claim.

1 10 Accordingly, because Ms. Shafer's notice of claim was directed and delivered to an office of the attorney general, it strictly complied with the requirements of the Act. The order of the district court is reversed and the matter remanded for further action consistent with this opinion.

11 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Justice PARRISH concur in Justice NEHRING's opinion.


author: DURHAM, Chief Justice: NEHRING, Judge,

text:
    2003 UT 46
    STATE of Utah, Plaintiff and Petitioner, v. Anthony James WANOSIK, Defendant and Respondent.
    No. 20010809.
    Supreme Court of Utah.
    Oct. 24, 2003.
    Rehearing Denied Oct. 29, 2003.

      Mark L. Shurtleff, Att'y Gen., Jeanne B. Inouye, Asst. Att'y Gen., Nicholas D'Alesan-dro, Salt Lake City, for plaintiff.
    Joan C. Watt, Catherine E. Lilly, Andrea J. Garland, Salt Lake City, for defendant.
   ON CERTIORARI TO THE UTAH COURT OF APPEALS

DURHAM, Chief Justice:

T1 Petitioner, the State of Utah, appeals the decision of the Utah Court of Appeals vacating respondent Anthony Wanosik's sentence and remanding for resentencing. The court held the State had not met its burden of proof with respect to the voluntariness of Wanosik's absence. In addition, the court held the trial court did not comply with the requirements of Utah Rule of Criminal Procedure 22(a), and that the defendant's due process rights regarding sentencing were violated.

BACKGROUND

12 The facts of this case are largely uncontested. Wanosik was stopped after a police officer saw him place something in his pocket while rummaging through donated items at a Deseret Industries store in Salt Lake City. A computer check revealed the defendant had an outstanding warrant, and he was arrested. A search incident to the arrest found knives, drug paraphernalia, three containers and two bags of suspected methamphetamine, and a bag of suspected marijuana on Wanosik's person. Wanosik pled guilty to two misdemeanor drug offenses. The trial court informed the defendant that the sentencing hearing would be held on May 26, 2000 at 8:30 a.m. Wanosik was not specifically informed that failure to appear at the sentencing might result in sentencing in absentia.

T3 The court also ordered Wanosik to contact Adult Probation and Parole (AP & P) for preparation of a presentence report. He did so, and AP & P recommended that Wan-osik be sentenced to twenty days in jail with credit for time served and that he participate in a substance abuse treatment program.

{4 Wanosik failed to appear at the sentencing hearing, which occurred as scheduled. He was, however, represented by counsel. Upon the court's calling defendant's name and receiving no response, defense counsel requested time to locate the absent defendant before the court issued an arrest warrant. Counsel suggested Wanosik "was intending to show up" because he had appeared for his presentence report, the pre-sentence report was favorable, and thus "he would have had no reason to try and avoid court today," and "he may have simply written down the wrong date."

15 Denying defense counsel's request, the court proceeded with sentencing, stating:

I think in the meantime, counsel, given [Wanosik's] failure to appear I will terminate his pretrial release, issue a warrant for his arrest returnable forthwith no bail. My inclination is to sentence him today, and I recognize you would prefer that I did not, but I am inclined to do so. It is curious that he has failed to appear today, although I can only assume because he has not been in touch with you nor has he been in touch with my court that he has chosen to voluntarily absent himself from these proceedings.
Consequently, it is the judgment and sentence of this Court that he serve the term provided by law in the adult detention center of one year for the class A misdemeanor crime of attempted possession of a controlled substance, and six months for the possession of a controlled substance, a misdemeanor charge to which he has pled guilty. I will order that those terms be served concurrently and not consecutively, and that they be imposed forthwith.
Ms. Garland, in the event he is in touch with you or shows up before he's arrested, then you may approach me, but in the meantime, Mr. D'Alesandro, you prepare the findings of fact[,] conclusions of law and order determining voluntary absent compliance, and that will be the order.

(Emphasis added).

'I 6 Upon hearing the trial court impose the statutory maximum on each count, rather than the period of incarceration recommended by AP & P, Wanosik's attorney immediately objected, stating:

Ms. Garland: Judge, I would object to that order because I don't think that it takes into account his due process rights or his rights about-
The court: Right.
Ms. Garland: However, I realize that's your order.
The court: Your objection is noted. Tl grant him credit for the eight days he served originally awaiting imposition or a resolution.
Ms. Garland: All right.
The court: All right, thank you, Ms. Garland.

T7 Although present, the prosecutor said nothing throughout the sentencing and was only addressed when directed to prepare the court's findings of fact and conclusions of law. Wanosik was eventually arrested pursuant to the sentencing warrant.

¶8 Wanosik appealed his sentence to the court of appeals. That court vacated the sentence and remanded the case for resen-tencing, finding that the trial court failed to conduct a proper inquiry to determine if the defendant's absence was indeed voluntary, violated Utah Rule of Criminal Procedure 22(2a) by imposing sentence without affording either the prosecutor or defense counsel an opportunity to address information relevant to sentencing, and imposed the maximum sentence possible on the defendant, contrary to the recommendations of the pre-sentence report and based only on the defendant's absence. State v. Wanosik, 2001 UT App 241, ¶¶ 37-39, 31 P.3d 615. We granted the State's petition for a writ of certiorari.

STANDARD OF REVIEW

19 The State asks us (1) to review the court of appeals's requirement for a preliminary inquiry before a trial court may proceed with in absentia sentencing, (2) to clarify the application of Utah Rule of Criminal Procedure 22, and (8) to evaluate the trial court's basis for Wanosik's maximum sentence.

On certiorari, we review the decision of the court of appeals, not the decision of the trial court. In doing so, this court adopts the same standard of review used by the court of appeals: questions of law are reviewed for correctness, and the trial court's factual findings are reversed only if clearly erroneous.

State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995) (citation omitted).

ANALYSIS

T 10 On appeal, the State's arguments fall into two primary categories: (1) in absentia sentencing, and (2) the function and limits of rule 22.

I. IN ABSENTIA SENTENCING

{11 The State contests the requirements imposed by the court of appeals on the prosecution in criminal cases to prove the volun-tariness of the defendant's absence. We thus focus on what constitutes a reasonable inquiry at the time a defendant is sentenced in absentia.

112 The court of appeals outlined a procedure whereby it concluded that sentencing in absentia could be accomplished without a violation of defendant's constitutional rights. The court properly noted that defendants have the right to be present at all stages of the criminal proceedings against them and that it is the burden of the prose-ecution to show that an absent defendant has knowingly and voluntarily waived that right before sentencing in absentia can proceed. Wanosik, 2001 UT App 241 at ¶¶ 10, 21, 31 P.3d 615 (citing State v. Anderson, 929 P.2d 1107, 1109-11 (Utah 1996)); State v. Wagstaff, 772 P.2d 987, 989-90 (Utah Ct.App.1989). Therefore, the court of appeals determined that, absent any direct evidence at a sentencing hearing of the reason for a defendant's absence, the hearing should "ordinarily" be continued to permit both the prosecution and defense counsel to seek additional information. It then identified a half dozen potential "avenues for establishing voluntariness," including inquiries of law enforcement, hospitals, employers, and others with supervisory or security interests in the defendant's appearance, such as bail bond companies or pretrial services personnel. Wanosik, 2001 UT App 241 at ¶ 23, 31 P.3d 615. Given that the burden of proof regarding waiver remains with the prosecution, the court of appeals suggested that it might make these inquiries, but obviously contemplated that defense counsel would do the same. The court then concluded that "[oJnee inquiry appropriate to the case has been made, and a compelling reason for the defendant's absence remains unknown, voluntariness, while not guaranteed, may then be properly inferred." Id., at ¶ 23. The State argues that the foregoing process places too heavy a burden of production on the prosecution and that, having established the "knowing" element of waiver by proving notice, the State is entitled to a presumption of the "voluntary" element based solely on the defendant's nonappearance. This approach would properly, according to the State, shift the burden to absent defendants to produce evidence 0 non-voluntariness. i

[13 We do not believe that our precedent permits an automatic presumption in favor of waiver of a constitutional right rather, we find that the reasonable inquiry process identified by the court of appeals is a salutary one. In State v. Houtz this court observed:

A defendant charged with a crime is entitled to be present at all stages of trial. The right to appear and defend in person is a constitutional one, but may be waived under certain circumstances if the defendant voluntarily absents himself from the trial. However, that voluntariness may mot be presumed by the trial court.... The trial court made inadequate inquiry into defendant's ability to appear ... before deciding that he had waived his right to be present at trial.

714 P.2d 677, 678 (Utah 1986) (emphasis added) (citations omitted).

¶ 14 In Wagstaff, the court of appeals stated that "[vloluntariness is determined by considering the totality of the cireum-stances," 772 P.2d at 990, a standard that clearly contemplates some form of inquiry appropriate to the facts of the case, as required by the court of appeals in this case. The defendant in Wagstaff was known by the trial judge to have intentionally left the state and failed to stay in touch with his counsel and his parole officer, thus rendering his non-appearance at trial entirely the result of his own misconduct. He was not, as was the defendant here, automatically presumed to be absent voluntarily based solely on his nonappearance at a hearing. More recently, in Anderson, this court considered the case of a defendant who had severed contact with his own attorney and with the prosecution. Anderson, 929 P.2d at 1110. Citing several cases involving wrongdoing or misconduct on the part of absent defendants, the court reasoned "that in some cireumstances, a defendant's absence from the jurisdiction can occasion the loss of a criminal appeal right" and "the 'defendant must bear the consequences of his illegal acts" " Id. at 1111 (quoting State v. Verikokides, 925 P.2d 1255, 1258 (Utah 1996)).

$15 The foregoing review of our precedent persuades us that the State is incorrect in arguing that an automatic presumption of voluntariness may be applied based on nothing more than non-appearance at a hearing of which a defendant had notice. Instead, the question of voluntariness is highly fact-dependent, is tied to the totality of cireumstances in particular cases, and, where there is virtually no explanation for an absence, requires some form of inquiry by the trial court. The prosecution, which must bear the burden of proof regarding waiver, would be well served to assist the court in its inquiry by providing at least some minimal evidence that the defendant is not incarcerated. Contact with hospitals, however, another "avenue" mentioned by the court of appeals, would seem unwarranted unless there was some reason specific to the case (e.g., a defendant with a chronic illness or a history of severe disability). Trial courts are well-positioned to assess what questions need to be asked and answered before voluntariness can be properly inferred, and we think the State's concern about unduly burdensome inquiries is misplaced. In the average case, the trial court may simply instruct defense counsel to attempt to contact the defendant or persons familiar with the defendant to see if an explanation for the non-appearance emerges, and the prosecutor to ascertain if the defendant is incarcerated. Should those inquiries disclose no evidence of involuntary absence, we agree with the court of appeals that "[oJnee inquiry appropriate to the case has been made, and a compelling reason for the defendant's absence remains unknown, voluntariness ... may then be properly inferred." Wanosik, 2001 UT App 241 at ¶ 23, 31 P.3d 615. It is true that continuances in hearings will occasionally be required, but they need not be of long duration, and we think fairness and constitutional procedure require them. Alternatively, at least in sentencing hearings, a trial court might apply a conditional presumption without a voluntariness inquiry, but indicate on the record that the sentence will be automatically set aside and a new hearing conducted if the defendant appears and rebuts the presumption.

II. RULE 22

116 The State also appeals the court of appeals' interpretation and application of rule 22 of the Utah Rules of Criminal Procedure. The State disagrees with the court of appeals's holding based on rule 22(a) requiring trial courts to provide both defense counsel and prosecutor an opportunity to be heard regarding sentencing in the absence of a specific request.

17 Rule 22 states:

Before imposing sentence the court shall dfford the defendant an opportunity to make a statement and to present any information in mitigation of punishment, or to show any legal cause why sentence should not be imposed. The prosecuting attorney shall also be given an opportunity to present any information material to the imposition of sentence.

Utah R.Crim. P. 22(a) (emphasis added). The State contests the court of appeals' interpretation regarding the definition of "the defendant," and the extent of the trial court's duty concerning "the court shall afford ... an opportunity."

A. "The Defendant"

$18 Rule 22(a) codifies the common-law right of allocution, allowing a defendant to make a statement in mitigation or explanation after conviction but before sentencing. See State v. Maestas, 2002 UT 123, ¶ 46, 63 P.3d 621. Historically, criminal defendants did not have the assistance of counsel, and therefore exercised this right personally. See generally Ferguson v. Georgia, 365 U.S. 570, 574, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961). The constitutional guarantee of a right to counsel has altered this situation, and counsel often functions as the voice of the defendant before the court. As Justice Stewart stated, "the defendant has a lawyer at his side who speaks fully on his behalf." Green v. United States, 365 U.S. 301, 306, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (Stewart, J., concurring). While we recognize that there are times, such as allocution, where the voice of the individual defendant is most appropriate in the presentation of a personal plea, State v. Young, 853 P.2d 327, 354-55 (Utah 1993) ("'The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself."), we have treated both voices, that of the defendant and that of counsel, as forming one unit of the defense. See State v. McClendon, 611 P.2d 728, 729 (Utah 1980).

$19 The State argues that rule 22(a) requires only that the court affirmatively offer an opportunity to the defendant personally to address the court before sentencing and that defense counsel is presumed aware of the opportunity to address the court on behalf of his/her client. While it is true that one purpose of the right to allocute is to provide the defendant personally with an opportunity to address the court, another purpose is to ensure that the judge is provided with reasonably reliable and relevant information regarding sentencing. See State v. Howell, 707 P.2d 115, 118 (Utah 1985) ("'The due process clause of Article 1, Section 7 of the Utah Constitution, requires that a sentencing judge act on reasonably reliable and relevant information in exercising discretion in fixing a sentence."). Often the specific arguments of defense counsel are critical in ensuring the court is presented with such information and with some context in which to consider it. Furthermore, rule 22(a) mandates that the court afford a defendant the opportunity not only to exercise the right to allocute, but also to present any information that might mitigate the sentence or indicate that sentence should not be imposed. Maestas, 2002 UT 123 at ¶ 46, 63 P.3d 621. Since counsel acts as the defendant's advocate, the rule therefore also requires that defense counsel be given an opportunity to make a statement and present any information in mitigation of punishment. See generally State v. Casarez, 656 P.2d 1005, 1007 (Utah 1982) ("Sentencing is a critical stage of a criminal proceeding 'at which a defendant is entitled to the effective assistance of counsel."). Thus, affording defense counsel the opportunity to make a statement and provide information in mitigation of sentence ensures that a defendant is afforded the Sixth Amendment right to counsel. See id.

$20 Wanosik's absence from the courtroom did not eliminate the need for an opportunity to present evidence relevant to sentencing, it only rendered irrelevant his personal right to address the court. "The right to allocution is nowhere specifically granted in either the State or the federal constitution. -It is an inseparable part of the right to be present, which defendant waived by his voluntary absence. The law cannot force a right upon a defendant who turns his back upon it." State v. Anderson, 929 P.2d 1107, 1111 (Utah 1996). However, the opportunity to present mitigating information relevant to sentencing through counsel is unaffected by the defendant's personal exercise of defendant's right to allocution. We thus find that the reference to "the defendant" in rule 22(a) includes not only the defendant personally, but also the defendant's counsel.

B. "The Court Shall Afford ... An Opportunity"

121 We believe that the "shall afford" language in the statute requires the court to

affirmatively provide the defense an opportunity to present mitigating information concerning sentencing. Since rule 22 stems from the common-law right of allocution, cases regarding the court's treatment of allo-ecution are instructive in defining the statute's terms. The United States Supreme Court interprets language similar to the Utah statute in the federal rules as instructing trial courts to affirmatively provide an opportunity for mitigating information. "[TJrial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing." Green v. United States, 365 U.S. 301, 303 n. 1, 305, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (interpreting the predecessor to the current Federal Rule of Criminal Procedure dealing with allocution, which in pertinent part read, "[blefore imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.")

1 22 The weight the Supreme Court places upon affirmatively providing an opportunity for the defendant to speak before sentencing is mirrored in the language of the current federal rule regarding mitigating information at sentencing. The rule reads:

Before imposing sentence, the court must:

(1) provide the defendant's attorney an opportunity to speak on the defendant's behalf;
(ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence; and
(iii) provide an attorney for the government an opportunity to speak equivalent to that of the defendant's attorney.

Fed. 82(0(4)(A)()-(fii). The federal system clearly envisions the court affirmatively furnishing the defense, both the defendant and counsel, an opportunity to speak, and does not require that a request be made before the opportunity is afforded. See United States v. Sisti, 91 F.3d 305, 310 (2d Cir.1996); United States v. Byars, 290 F.2d 515, 517 (6th Cir.1961); State v. Koon, 190 W.Va. 632, 440 S.E.2d 442, 451 (1993). Importantly, the prosecution is also guaranteed an opportunity to present information to the court relevant to sentencing, ensuring fairness and balance in the sentencing process. Utah R.Crim. P. 22(a).

123 This court need not, of course, follow the application of federal rules or federal case law. However, when we are asked to define terms found in our rules and statutes, we often look to other jurisdictions with similar language for guidance. It seems clear, from both the plain language of rule 22 and the approach of other jurisdictions with similar rules, that the "shall afford" language requires trial courts to affirmatively provide the defense an opportunity to address the court and present reasonably reliable and relevant information in the mitigation of a sentence. A simple verbal invitation or question will suffice, but it is the court which is responsible for raising the matter. As stated in Byars, "[the defendant, himself, must be given such opportunity and some conduct of the court must let the defendant know that he, as well as counsel, has this right." Byars 290 F.2d at 517 (emphasis added). Thus, we affirm the court of appeals' ruling, and hold that both the defendant and counsel shall be affirmatively afforded an opportunity to make a statement, present any information in mitigation of punishment, or show any legal cause why sentence should not be imposed; we further note that the same affirmative obligation exists vis-a-vis the prosecution. Utah R.Crim. P. 22(a).

CONCLUSION

1 24 We affirm the court of appeals' conclusion rejecting the trial court's automatic presumption of voluntariness based solely on the unexplained absence of a defendant who has been notified of the date and time of sentencing. We also agree that a reasonable inquiry, appropriate to the case, must be preliminarily made before a defendant's inexplicable absence may then be inferred to be voluntary.

125 Furthermore, we affirm the court of appeals holding regarding Utah Rule of Criminal Procedure 22(a): the rule encompasses both the defendant and his counsel, and trial courts have an affirmative duty to provide both an opportunity to address the court and present information relevant to sentencing before imposing sentence.

26 We therefore affirm the judgment of the court of appeals.

T 27 Associate Chief Justice DURRANT, Justice WILKINS and Justice PARRISH concur in Chief Justice DURHAMS opinion.

128 Justice RUSSON did not participate herein; Third District Judge RONALD E. NEHRING sat.

NEHRING, Judge,

concurring in the result:

[29 I concur in the opinion of Chief Justice Durham. I write separately to calm those who may fear that the "avenues for establishing voluntariness" of a defendant's absence from a sentencing hearing will prove to be congested avenues contributing to gridlock for all concerned, especially prosecutors. The Chief Justice has attempted to allay anxiety by correctly observing that where a voluntariness inquiry is conducted, the exercise is unlikely to prove unduly strenuous. I submit, however, that because sentencing in absentia is, for many sound reasons, a seldom used practice, the legal principles which we announce today and the procedures which they compel will be stored in the closets of trial judges and retrieved only on unusual occasions.

{30 As a practical matter, few, if any, economies are realized by in absentia sentencing. The occasions when a prosecutor has forewarning that a defendant will not be present for sentencing are rare. It would make little sense for a prosecutor, therefore, to appear at a sentencing hearing prepared to carry his burden on the voluntariness of a defendant's absence. The inevitable result would be continuance of the sentencing hearing. Where, as in the case of Mr. Wanosik, the in absentia sentence is harsher than that recommended in the presentence report, the defendant is likely to request a hearing to challenge it. There is, therefore, little if any efficiency to be gained by sentencing a defendant in absentia.

[31 Crime victims have a statutory right to appear and be heard at sentencing. A defendant's failure to appear for sentencing for whatever reason may be particularly distressing for victims. Nevertheless, the objective of permitting a victim to appear and be heard at sentencing is served in large measure by having the victim's words, be they of merey or condemnation, fall on the ears of the defendant himself,

32 In short, I concur in the view of the Chief Justice concerning the seope of necessary safeguards for a practice which should, except in highly unusual cireumstances, continue to be avoided by trial judges.

133 Associate Chief Justice DURRANT and Justice PARRISH concur in the concurring opinion of Judge NEHRING.

      . We do not decide whether a rule 22(a) error constitutes an "illegal sentence, or a sentence imposed in an illegal manner'"' subject to review and correction "at any time," as addressed in rule 22(e), since resolving it is unnecessary in this case. See Utah R.Crim. P. 22(e).

      . The State also takes issue with the court of appeals' decision to remand for re-sentencing on due process grounds, arguing that the court of appeals' decision to remand overlooks record evidence supporting the trial court's ruling and disregards the presumption of regularity properly accorded to proceedings of the trial court. The court of appeals noted that "[dJue process considerations underscore the propriety of our remand for re-sentencing." Wanosik, 2001 UT App 241 at ¶ 12, 31 P.3d 615. Our decision to vacate the sentence on other grounds precludes the need to consider the due process argument.


author: DURHAM, Chief Justice:

text:
    2003 UT 49
    UNITED STATES FUEL COMPANY and ANR Co., Inc., Plaintiffs and Appellees, Intermountain Power Agency, Plaintiff-in-Intervention and Appellee, v. HUNTINGTON-CLEVELAND IRRIGATION COMPANY, Defendant and Appellant.
    No. 20010815.
    Supreme Court of Utah.
    Nov. 7, 2003.

      Denise A. Dragoo, Bradley R. Cahoon, Ronald L. Rencher, Mark W. Dykes, Salt Lake City, for plaintiffs.
    J. Craig Smith, David B. Hartvigsen, Scott M. Ellsworth, Salt Lake City, for defendant.
   DURHAM, Chief Justice:

11 Defendant Huntington-Cleveland Irrigation Company (HCIC) appeals the trial court's ruling in favor of plaintiffs United States Fuel Company and ANR Co., Inc. and intervenor Intermountain Power Agency and their predecessors-in-interest (collectively USF). This appeal involves an action to quiet title to a prior right to use water from Cedar Creek, a small stream that is part of the San Rafael Drainage in Emery County, Utah. This dispute arose because both USF and HCIC divert water from Cedar Creek.

FACTS

T2 HCIC is a mutual water company that was formed in 1982 through the merger of several irrigation companies, including the Cleveland Canal and Agriculture Company (CCAC). The founders of CCAC constructed the Cleveland Canal from Huntington Creek at the mouth of Huntington Canyon to the town of Cleveland. The Cleveland Canal crosses Cedar Creek, a tributary of Huntington Creek, as it proceeds east toward the Cleveland area. Because Cedar Creek tended to have large Spring run-off flows that would wash out the canals, HCIC eventually constructed a cement flume across the Cleveland Canal to carry the flood waters safely over the canal. The flume, or "flood bridge" as it is commonly called, has an opening in the center that will allow up to 10 cubic feet per second (cfs) of water from Cedar Creek to drop into the canal.

T3 In the 1950s, a general adjudication of the San Rafael River and all of the smaller tributaries that feed into the San Rafael River was initiated by the state engineer. In 1970, HCIC filed a "Water User's Claim Statement" (WUCS) in the general adjudication, claiming the right to 10.0 efs from Cedar Creek (Diligence Claim No. 98-1134). USF did not protest HCIC's claim. In the state engineer's Proposed Determination, issued on December 1, 1982, HCIC's claim of 10.0 cfs was recognized as the senior irrigation right on Cedar Creek and was designated WUC No. 98-1134.

{4 USF's agent, Robert Eeeli (Eeeli), was served a copy of the proposed determination one year after it was issued, on December 2, 1983. Eceli signed a receipt and consent form, in which USF specifically consent to the entry of a final decree as set forth in the Proposed Determination unless it filed an objection thereto within ninety days of receipt, as required by statute. Utah Code Ann. §.783-4~11 (1989). USF mailed an objection to the court on March 2, 1984, ninety-one days later. USF's objection listed several water rights which it claimed had been omitted, and also claimed that the Proposed Determination listed "rights of junior appropriators, such as the Bureau of Land Management, that are adverse to its senior rights." In 1989, HCIC issued a letter to USF and its lessee demanding that USF release the first 10.0 efs in Cedar Creek for HCIC's use.

5 USF initiated this action in June 1992. The complaint, as subsequently amended, sought to quiet title to certain water rights, to adversely possess and/or effect the forfeiture of any water rights of HCIC in Cedar Creek, and to prevent HCIC from interfering with USF's use of the water. HCIC counterclaimed, asking the trial court to adjudicate its water right as the senior right, declare USF's rights abandoned and/or forfeited, and enjoin USF from trespassing against and converting water belonging to HCIC.

T 6 In 1998, HCIC filed a motion to dismiss the matter or stay the proceedings pending the outcome of the general adjudication of the San Rafael Drainage. The motion was denied. Later that year, HCIC petitioned the trial court to hear the matter heard as a "mini-adjudication" of the Cedar Creek Drainage under section 78-4-24. Utah Code Ann. § 73-4-24 (1989). That petition was also denied.

T7 On February 7, 1997, HCIC filed a pretrial motion seeking to bar any objections to the validity of its diligence claim for 10.0 cfs of water in Cedar Creek, based on the recent discovery that USF's objection to the Proposed Determination had been filed after the end of the ninety-day statutory objection period. The motion was denied.

18 Following a bench trial and various post-trial motions, the court issued its final findings of fact, conclusions of law, and 'the judgment on September 10, 2001. The trial court found that it had jurisdiction to determine the respective rights of the parties, including, without limitation, issues of priority, estoppel, adverse use, forfeiture, and abandonment, even though these issues could also have been raised in the General Adjudication proceedings. The court also found that neither Utah Code sections 78-4-11 to - 15 nor 78-4-24 precluded the court from exercising jurisdiction over the disputed claims. The trial court held that evidence adduced at trial demonstrated that USF, not HCIC, held priority to various water rights on Cedar Creek. In so holding, the trial court disregarded the state engineer's proposed determination, which gave senior priority to HCIC for 10.0 efs from Cedar Creek.

STANDARD OF REVIEW

19 A trial court's determination of the law is reviewed under a correctness standard; we afford no degree of deference to a trial judge's determination of the law. See Jeffs v. Stubbs, 970 P.2d 1234, 1244 (Utah 1998). A trial court's findings of fact will be upheld unless they are clearly erroneous. Young v. Young, 1999 UT 38, ¶-15, 979 P.2d 338. Although legal questions are reviewed for correctness, we "may still grant a trial court discretion in its application of the law to a given fact situation." Jeffs, 970 P.2d at 1244. We decide how much discretion to give a trial court in applying the law to a particular area by considering a number of factors "pertinent to the relative expertise of appellate and trial courts in addressing those issues." Id. (citing State v. Pena, 869 P.2d 932, 938-39 (Utah 1994)). Finally, "a trial court is accorded considerable latitude and discretion in applying and formulating an equitable remedy," and will not be overturned unless it abused its discretion. Thurston v. Box Elder County, 892 P.2d 1034, 1041 (Utah Ct.App.1995) (citing LHIW, Inc. v. DeLorean, 753 P.2d 961, 963 (Utah 1988); Morris v. Sykes, 624 P.2d 681, 684 (Utah 1981)). .

ANALYSIS

¶1 10 On appeal, HCIC argues that the trial court erred in ruling that: (1) it had authority to exercise jurisdiction over this matter; (2) USF was not barred by waiver, estoppel, and/or laches from asserting a priority date senior to that of HCIC; (8) HCIC was barred by estoppel from submitting any evidence that water from the Mohrland Portal of the Blackhawk Mine is tributary to Cedar Creek; and (4) USF's water rights had not been forfeited. Because we reverse the trial court's holding that it had authority to adjudicate the private claims in this action, we need not address HCIC's remaining claims.

I. JURISDICTION

T11 HCIC argues that the trial court erred in allowing USF to challenge and overcome the first priority of HCIC to the waters of Cedar Creek, HCIC alleges that USF violated Utah Code section 73-4-11 when it filed its objection to the San Rafael Proposed Determination after the ninety-day statutory period had expired. According to HCIC, the trial court has allowed USF to accomplish an "end-run" around the general adjudication procedures by accepting USF's independent action for relief outside of the pending general adjudication. USF counters by arguing that section 78-4-11 is permissive, not mandatory.

1 12 While USF is correct that section 73-4-11 is permissive, USF fails to recognize that section 78-4-12 requires the court to enter judgment consistent with uncontested elements of a proposed determination. This mandate cannot coexist with the prosecution of an independent action which could result in a judgment inconsistent with an uncontested portion of a proposed determination. We therefore reverse the trial court's holding.

T13 Section 73-4-11 of the Utah Code states in pertinent part as follows:

After full consideration of the statements of claims ... the state engineer shall formulate a report and a proposed determination of all rights to the use of the water ..., and a copy of the same shall be mailed by regular mail to each claimant with notice that any claimant dissatisfied therewith may within ninety days of such mailing file with the clerk of the district court a written objection thereto ....

Utah Code Ann. § 73-4-11 (1989) (emphasis added). Section 73-4-12 of the Utah Code describes the consequences of failing to lodge a timely objection, stating:

If no contest on the part of any claimant shall have been filed, the court shall render a judgment in accordance with such proposed determination, which shall determine and establish the rights of the several claimants to the use of the water ... and such other matters as will fully and completely define the rights of said claimants to the use of the water.

Utah Code Ann. § 73-4-12 (1989) (emphasis added).

§14 Our legislature has entrusted to the state engineer the responsibility of sorting out competing claims to Utah's scarce water resources. See Id. §§ 73-4-1 to -24 (1989). When the proper allocation of water rights is in dispute, the state engineer can initiate a general adjudication of water rights by filing an action in district court to determine the various rights of water users. Id. § 73-4-1 (Supp.2002). After investigating the various claims, the state engineer submits a "proposed determination" of the parties' rights to the district court for its consideration in ruling on the general adjudication. Id. § 73-4-11. The state engineer has "special training in the operation and control of natural streams and irrigation and ... control of water and water rights," and is "especially qualified to understand the facts involved in these problems...." East Bench Irrig. Co. v. State, 5 Utah 2d 235, 300 P.2d 603, 606 (1956). However, the state engineer "is an executive, not a judicial officer." Id. Therefore, as a general rule, "[the determination of the priority of rights is a judicial function and not among the powers of the state engineer." Whitmore v. Murray City, 107 Utah 445, 154 P.2d 748, 750 (1944). While courts may consider the state engineer's determination persuasive in determining parties' respective rights, they are under no obligation to defer to his or her findings.

115 As noted above, the procedures governing review of a state engineer's proposed determination are "permissive" and not an impediment to independent "private" suits respecting ownership and priority of water rights. However, the uncontested proposed determination is an exception to the permissive nature of the statutory scheme. The clear mandate of section 73-4-12 is that courts must render judgment in accordance with a proposed determination where the proposed determination is uncontested at the close of the ninety-day statutory period. Utah Code Ann. § 784-12.

116 Fifty years ago, the district court entered an order requiring that all water rights within the San Rafael River Drainage, including Cedar Creek, be adjudicated pursuant to title 78, chapter 4 of the Utah Code. The entry of this order for a general adjudication set in motion procedures for giving notice to water claimants, the filing of statements by claimants, and a comprehensive and exhaustive investigation by the state engineer. The state engineer's findings were then compiled in a report and proposed determination. The state engineer's report on the San Rafael River Drainage, issued in December 1982, found HCIC's 10.0 efs to be the senior irrigation right on Cedar Creek.

17 By the plain language of the statute, USF had ninety days from the date of service of the proposed determination to file an objection to the proposed award of water rights to HCIC. Id. § 73-4-11. USF filed an objection one day late. Its tardiness had consequences. Unless and until USF sought and obtained leave of court in the general adjudication to excuse its tardy objection, HCIC was entitled to judgment perfecting the state engineer's proposed award to HCIC of the 10.0 efs irrigation right. Id. § 73-4-12.

T18 To this day, USF has not sought to have its untimely objection accepted in the general adjudication. Therefore, that court remains under a statutory mandate to enter judgment perfecting HCOIC's claim to the 10.0 efs of irrigation water. We believe it is the obligation of a trial court confronted with a private suit seeking relief inconsistent with an uncontested proposed determination in a general adjudication to abstain from adjudicating the private claims. Although the language of Sections 78-4-11 and 73-4-12 requires abstention, this statutory mandate is a limited one. The general adjudication and objection process in sections 73-4-11 and -12 has never been the exclusive procedure by which water users may assert their claims. See Murdock v. Springville Mun. Corp., 878 P.2d 1147, 1150 (Utah 1994). Onee an objection to a proposed determination of water rights has been properly filed in a general adjudication proceeding, the objecting party is at liberty to pursue separate adjudication of private claims.

119 This court determined long ago that the adoption of uncontested state engineers' proposed determinations by operation of law did not unconstitutionally confer adjudicative power on the state engineer. Eden Irrig. Co. v. Dist. Court, 61 Utah 103, 211 P. 957 at 960 (1922). See also Huntsville Irrigation Ass'n v. District Court, 72 Utah 431, 270 P. 1090, 1094 (1928) (affirming that the constitutional objections raised against the water rights determination statutes at issue in Eden were "without merit."). In Eden, we examined nearly identical language in the predecessor statutes to sections 73-4-11 and -12 of the Utah Code at issue here. We reasoned then that the fate of a water right claimant who fails to object to a proposed award was similar to that of a defaulting party in a lawsuit. "[If the claimant makes no objection, he, by his silence, ... confesses the statements contained in the engineer's proposed determination of his water rights, and thus a judgment may legally be entered in accordance with the proposed determination of the engineer." Eden Irrig. Co., 211 P. at 960. The Eden holding and reasoning have continuing force and offer sound guidance.

{20 When USF failed to timely contest HCIC's claim to the 10.0 cfs of Cedar Creek water, it took on the status of a defaulting party in the general adjudication. Although no final judgment has been entered in the trial court, the statutory directive that "the court shall render a judgment in accordance with such proposed determination" vested in HCIC a right to obtain judgment, either by applying for the determination's entry or through an action sua sponte by the trial court. USF cannot defeat this right through collateral attack in a separate lawsuit. Only in rare instances do we permit collateral attacks on default judgments. Similarly, we should insulate from collateral assault a party who has acquired a statutory entitlement to a judgment. The general adjudication provided USF, and indeed all claimants in the San Rafael River drainage, a statutorily-mandated forum in which to contest competing claims. It is in that forum that USF should be compelled to seek relief for its untimely-filed objection to HCIC's claim.

121 In this action, just as in the general adjudication proceeding, the title to be quieted, the injunctive and declaratory relief granted, and the monetary damages awarded all must reflect HCIC's right to the entry of judgment based on the state engineer's proposed determination. Accordingly, we vacate the trial court's award of 10.0 cfs of water from Cedar Creek to USF and hold that the trial court should have abstained from adjudicating the private claims in this action where USF did not contest the proposed determination within the statutorily-mandated period.

CONCLUSION

122 We vacate the holding of the trial court. The trial court erred in determining that it had jurisdiction to hear this quiet title action outside of the general adjudication proceedings. The trial court should have abstained from adjudicating the private claims in this case. While the state engineer is an executive officer and his or her findings are not binding on courts of law, Utah Code section 73-4-12 mandates that courts enter judgment in accordance with the proposed determination of the state engineer when the proposed determination has not been contested within the statutorily-mandated period.

123 Associate Chief Justice DURRANT, Justice WILKINS, Justice PARRISH, and Justice NEHRING concur in Chief Justice DURHAM's opinion.