author: DURRANT, Associate Chief Justice: RUSSON, Justice,

text:
    2002 UT 92
    UINTAH BASIN MEDICAL CENTER, Plaintiff and Appellee, v. Leo W. HARDY, M.D., Defendant and Appellant.
    No. 20000501.
    Supreme Court of Utah.
    Aug. 30, 2002.

      Blaine J. Bernard, Eric G. Maxfield, Christine T. Greenwood, E. Blaine Rawson, Salt Lake City, for plaintiff.
    John P. Harrington, Joni J. Jones, Melissa H. Bailey, Salt Lake City, for defendant.
   INTRODUCTION

DURRANT, Associate Chief Justice:

{1 This appeal concerns the voidability of certain government contracts. Specifically, we consider the question of when a contract entered into by a predecessor governing body is voidable by a successor governing body. Throughout the country, substantial case law has developed to distinguish between those government contracts that may be voided and those that may not be voided by a successor governing body. Various common law tests have been articulated, all designed to balance the tension between the right of a successor governing body to implement its own policies and not be bound by those of a former body, and the interest in providing some certainty to parties who contract with governing bodies. Utah courts have relied on the governmental/proprietary test, a test under which contracts involving proprietary functions and having reasonable durations are enforceable against successor governing bodies. -

T2 In this case, the district court granted summary judgment to a county hospital on the theory that the particular contract at issue, a contract for the provision of pathological services to the hospital by a doctor, was voidable by the hospital's governing body-its board of trustees. The district court held that the contract had been entered into by a predecessor board and thus was voidable by successor boards.

T3 Because we conclude that the contract for pathological services involves a proprietary function, we remand with instructions that the district court determine whether the contract's duration was reasonable.

BACKGROUND

T 4 The following facts are undisputed. On November 29, 1994, Dr. Leo Hardy entered into a contract with Uintah Basin Medical Center ("UBMC"), a hospital owned by Du- . chesne County and operated by a board of trustees. Under the terms of the contract, Dr. Hardy received $400 per month for providing UBMC pathological services on a part-time basis and serving as the director of its pathology laboratory. The contract did not recite a termination date, but provided that either party could terminate the contract for "just cause" following ninety days' notice.

T5 Although Dr. Hardy performed his contractual obligations satisfactorily and received no complaints from UBMC or its medical staff, on July 18, 1996, the UBMC board of trustees voted to give Dr. Hardy ninety days' notice and invite another doctor to join its medical staff as a pathologist and emer-geney room physician. When Dr. Hardy's termination became effective, UBMC sought a declaratory judgment that it had "just cause" to terminate the contract. Dr. Hardy counterelaimed, contending that UBMC materially breached the contract by terminating him because UBMC did not have "just cause." The district court initially denied the parties' respective motions for summary judgment, ruling that the jury would decide whether UBMC had "just cause".

T 6 Following this ruling, the district court accepted supplemental briefing from the parties on an issue UBMC had raised for the first time in its answer to Dr. Hardy's counterclaim: whether the contract violated common law rules against government contracts that bind successor governing bodies. After hearing from the parties, the court granted UBMC summary judgment on the ground that the contract was voidable even without " 'just cause' simply because it could not bind successor Boards." In reaching this conclusion, the district court explained, "Due to the rapid advance of science, medicine [sic] changes and needs of patients there should be no reason for such an agreement to continue into the future or be binding on successor where the governing [bloard is a governmental entity." Dr. Hardy appeals. Section 78-2-2(8)(j) of the Utah Code gives us appellate jurisdiction over this case. Utah Code Ann. § 78-2-2(8)(j) (Supp.2001).

ANALYSIS

I. STANDARD OF REVIEW

17 "In deciding whether the trial court correctly granted [summary] judgment as a matter of law, 'we give no deference to the trial court's view of the law; we review it for correctness" " SME Indus., Inc v. Thompson, Ventulett, Stainback & Assocs., 2001 UT 54, ¶ 9, 28 P.3d 669 (quoting Ron Case Roofing & Asphalt Paving, Inc. v. Blomquist, 773 P.2d 1382, 1385 (Utah 1989)).

II. RATIONALE BEHIND COMMON LAW RESTRICTIONS ON GOVERNMENT CONTRACTS THAT BIND SUCCESSOR GOVERNING BODIES

[ 8 Before addressing Dr. Hardy's specific claims on appeal, we briefly discuss the rationale behind the common law rules regarding contracts that bind successor governing bodies.

19 Government contracts raise public policy concerns beyond those involved with private contracts. See, e.g., Mitchell v. Chester Hous. Auth., 389 Pa. 314, 132 A.2d 873, 876 (1957). One such concern involves contracts that extend beyond the term of the governing body that originally entered into the contract. Such contracts, if enforced, potentially allow a former governing body to perpetuate its policies beyond its term and thereby limit a successor governing body's ability to respond to the public's changing needs. See generally Figuly v. City of Douglas, 853 F.Supp. 381, 384 (D.Wyo.1994).

10 While such concerns militate against enforcing a predecessor governing body's contracts against its successors, the common law also recognizes a countervailing concern: that permitting successor governing bodies to indiscriminately terminate government contracts may make private parties hesitant to contract with government entities, thereby reducing the viability of contracts as a means of solving public problems. See Plant Food Co. v. City of Charlotte, 214 N.C. 518, 199 S.E. 712, 714 (1938).

111 A desire to accommodate these competing concerns animates the various common law tests for determining whether a contract should be enforced against a sucees-sor governing body. The test on which Utah courts rely is known as the governmental/proprietary test. See Bair v. Layton City Corp., 6 Utah 2d 138, 147-48, 307 P.2d 895, 902 (1957); see also Salt Lake City v. State, 22 Utah 2d 37, 42, 448 P.2d 350, 354 (1968) (holding that contract for providing water to state capitol grounds was enforceable under the governmental/proprietary test) Under the governmental/proprietary test, a contract is (1) unenforceable against successor governing bodies if it involves a governmental power or function, but (2) enforceable against successor governing bodies if it involves a proprietary power or function and is of a reasonable duration. Bair, 6 Utah 2d at 147-48, 307 P.2d at 902.

{12 Having set forth the governmental/proprietary test, we next apply it to Dr. Hardy's contract to determine whether the contract may be validly enforced against sue-cessor hospital boards of trustees.

III WHETHER DR HARDVS CONTRACT IS ENFORCEABLE AGAINST SUCCESSOR BOARDS OF TRUSTEES

113 Dr. Hardy maintains the district court erred in concluding that his contract was voidable because it bound successor boards. Relying on the governmental/proprietary test, Dr. Hardy argues that his contract for pathological services involves a proprietary function and therefore was enforceable against successor boards provided it is of a reasonable duration. We agree.

A. Dr. Hardy's Contract Was Proprietary in Nature

14 The factors on which courts have relied to distinguish between governmental and proprietary contracts strongly support the conclusion that Dr. Hardy's contract for pathological services involves a proprietary function. First, UBMC has not demonstrated that the services Dr. Hardy provides under the contract are "indispensable to the proper functioning of government." County Council v. SHL Systemhouse Corp., 60 F.Supp.2d 456, 465 (E.D.Pa.1999). To the contrary, consistent with the view that Dr. Hardy's contract did not involve functions essential to governance, Duchesne County conveyed the hospital to a non-profit organization on July 3, 2000.

{15 Moreover, under the terms of the contract, Dr. Hardy merely recommended, but did not have authority to set, policies related to UBMC's pathology laboratory. The board's retention of this policymaking discretion weighs heavily in favor of deeming the contract proprietary. See Rhode Island Student Loan Auth. v. NELS, Inc., 550 A.2d 624, 627 (R.I.1988) (concluding contract was proprietary because contracting party "could neither exercise discretion nor set policy in performance of its duties").

116 Accordingly, we conclude that Dr. Hardy's contract involves a proprietary function.

B. Whether Dr. Hardy's Contract Was of Reasonable Duration Depends on the Scope of the Contract's "Just Cause" Provision

117 Under the governmental/proprietary test, Dr. Hardy's proprietary contract is enforceable if its duration was reasonable at the time the parties executed the contract. Bair, 6 Utah 2d at 148, 307 P.2d at 902. Whether a contract's duration is "reasonable" depends on the cireumstances of each case. See, eg., id., 6 Utah 2d at 143, 148, 307 P.2d at 899, 903 (holding that a fifty-year sewage treatment contract was valid because its lengthy duration allowed city to obtain treatment facilities without undue delay and expense, and also facilitated long-term planning). Depending on the circumstances, a lengthy or indefinite contractual duration is not necessarily unreasonable. See id.; see also Salt Lake City, 22 Utah 2d at 42, 448 P.2d at 354 (validating contract that required city to provide free water to land as long as the land served as the state capitol grounds, noting that city derives continuing economic benefit from capitol's presence).

118 As the record has been inadequately developed on the issue of the reasonableness of the contract's duration, we remand to permit the district court to allow further development of the record and to then make this determination. On remand, as a preliminary matter, the district court should interpret the intended scope of the contract's "just cause" provision, since the reasonableness of the contract's duration depends in large part on the amount of discretion this provision gives to successor boards. For example, if the "just cause" provision gives successor boards broad discretion to terminate Dr. Hardy (e.g., to improve patient care, for fiscal considerations), the contract is more likely to be of a reasonable duration than if the "just cause" provision permitted termination only for deficient job performance. In evaluating whether the duration is reasonable, the district court may also find it useful to compare Dr. Hardy's contract to the agreements UBMC typically enters into with medical professionals. For example, UBMC's bylaws concerning its medical staff suggest that UBMC routinely enters into agreements under which the only practical durational limit is a liberally-construed "just cause" provi-sion The extent to which the durational limitations in Dr. Hardy's contract conform to UBMC's usual practices in similar situations may factor into the district court's reasonableness assessment.

T19 If the district court determines that the contract's duration is reasonable, the contract is enforceable. The court should then determine whether the UBMC board had "just cause" to terminate Dr. Hardy. On the other hand, if the district court determines that the contract's duration is unreasonable, the court should not enforce the contract.

120 The dissent maintains that a term should be implied into Dr. Hardy's contract. In support of its argument, the dissent relies on canons of construction that have been.developed to aid courts in discerning the parties' intent when a contract fails to specify a duration. We reject the dissent's position for several reasons. First, and most importantly, neither party has argued in their briefs in favor of implying a term. To the contrary, both parties maintain that the contract should be evaluated as an indefinite-length contract whose duration is limited only by the "just cause" provision In ef-feet, then, the parties have implicitly stipulated that the contract has an indefinite term. Implying a term would therefore result in a contract that is contrary to the intent of either party and violate the preeminent goal of contractual interpretation (Le., to give effect to the intent of the parties). Buehner Block Co. v. UWC Assocs., 752 P.2d 892, 895 (Utah 1988). Accordingly, because the parties agree that the contract should be treated as an indefinite-length contract, there is no need to rely on canons of construction for resolving ambiguities over whether the parties intended the contract be of indefinite duration.

T21 Second, conspicuously absent from the dissent's analysis is any citation to Utah precedent that supports its position. Contrary to the dissent's position, when a contract for employment or personal services does not recite a fixed term, the law in Utah does not call for the judicial reformation of the contract to impose a term, especially where, as here, neither party disputes the contract was of indefinite duration. Indeed, in a case in which we traced the historical development of the law associated with employment contracts, we specifically noted that courts long ago repudiated a common law rule under which a term was implied when an employment contract did not specify a duration. Berube v. Fashion Centre, Ltd., 771 P.2d 1033, 1040-41 (Utah 1989) In its place, courts in Utah and elsewhere adopted the at-will employment rule, under which employment contracts that did not specify a duration were generally presumed to be terminable at will. Id. at 1041. In time, Utah recognized an exception under which an employee could rebut the at-will presumption associated with indefinite-length contracts by showing the parties intended the contract be terminable for cause. Johnson, 818 P.2d at 1000-01 & n. 9; see also Brehany v. Norstrom, Inc., 812 P.2d 49, 54 (Utah 1991). Significantly, nothing in Johnson, Brehany, or Berube suggests that a court should sua sponte impose a term on an indefinite-length employment contract that provides for termination for cause.

¶ 22 Applying Utah precedent to Dr. Hardy's contract confirms our view that a term should not be read into the contract. First, because Dr. Hardy's contract does not specify a duration, under Utah law we initially presume it is of indefinite duration but terminable at will. Berube, 771 P.2d at 1040-41. We do not apply the long-since rejected rule that previously required the implication of a term. Id. Second, we consider whether any of the exceptions to the at-will rule applies. In this regard, we note that the parties expressly provided the contract was terminable for "just cause." We further note that the parties agree in their appellate briefs that the contract is of indefinite length and terminable only for "just cause." Accordingly, we conclude that the at-will presumption has been rebutted and Dr. Hardy's indefinite length contract is terminable for "just cause." Johnson, 818 P.2d at 1000-01 & n. 9; see also Brehany, 812 P.2d at 54.

¶ 23 Finally, we disagree with the dissent's contention that the imposition of a term is justified as a means of easing the calculation of prospective damages. The dissent itself concedes that parties can contract for an indefinite term. In making this concession, the dissent implicitly acknowledges that, to give effect to the parties' intent, courts inevitably and routinely need to determine damages associated with a breach of an indefinite employment contract. In making such determinations, courts have relied on various factors in addressing the kinds of concerns raised by the dissent:

While a district court has considerable experience in calculating future earnings, some basis must appear in the record for such an award. Some of the factors which district courts have employed to alleviate the speculative nature of future damage awards include an employee's duty to mitigate, "the availability of employment opportunities, the period within which one by reasonable efforts may be re-employed, the employee's work and life expectancy, the discount tables to determine the present value of future damages and other factors that are pertinent on prospective damage awards."

Shore v. Fed. Express Corp., TT7i F.2d 1155, 1160 (6th Cir.1985) (quoting Koyen v. Con-sol. Edison Co., 560 F.Supp. 1161, 1168-69 (S.D.N.Y¥.1983)). "It is not difficult to determine the ... factors that are pertinent on prospective damage awards." Koyen, 560 F.Supp. at 1168-69. Regardless, while the determination of damages presents challenges, so would the determination of a "reasonable" duration, especially when both parties on appeal appear resistant to the imposition of a term.

CONCLUSION

¶ 24 We conclude that Dr. Hardy's contract for pathological services is a proprietary contract, and thus is enforceable against successor UBMC boards of trustees if it is of a reasonable duration. Accordingly, we remand to the district court to permit it to determine whether the contract's duration is reasonable.

1 25 Remanded.

[26 Chief Justice DURHAM and Judge BENCH concur in Justice DURRANT's opinion.

RUSSON, Justice,

concurring in part and dissenting in part.

127 I concur with the majority opinion that the contract in question is proprietary in nature and could therefore bind the successor trustees of the hospital. However, I differ with the analysis of the opinion as to how the trial court is to determine the reasonableness of the duration of the contract on remand.

{23 Well-settled canons of contract construction and interpretation dictate that the trial court, when faced with a contract of employment that is silent as to its duration, and thus indefinite in length, but expressly terminable only for just cause, should determine by implication a reasonable term of duration under the cireumstances and then imply that reasonable term into the contract as a matter of law. Onee the trial court determines a reasonable term and implies it into the contract as a matter of law, the trial court then should evaluate the implied duration of the contract to determine if the duration of the contract was reasonable for purposes of deciding whether the successor trustees of the hospital are bound by the contract.

{29 The employment contract between Uintah Basin Medical Center and Dr. Hardy did not include a specific term of duration and therefore was of indefinite duration or perpetual in nature. It did, however, expressly indicate that the contract could be terminated only for just cause. Corbin on Contracts provides guidance on how to treat such a contract and indicates what legal ef-feet such a contract is to be given when it states:

When parties make a contract of employment without specifying the length of service, but indicate that it is not terminable at will, the legal effect is that the parties are bound for a "reasonable time." This is based upon "implication" [i.e., the implication of a reasonable term of duration].

Catherine M.A. McCauliff, 8 Corbin on Contracts § 34.11, at 262 (revised ed.1999) (emphasis added); see also Consol. Theatres, Inc. v. Theatrical Stage Employees Union Local 16, 69 Cal.2d 713, 73 Cal.Rptr. 213, 447 P.2d 325, 335 (1968) (en banc); Ansbacher-Siegle Corp. v. Miller Chem. Co., 137 Neb. 142, 288 N.W. 538, 541 (1939); Tavel v. Olsson, 91 Nev. 359, 535 P.2d 1287, 1288 (1975); Smith v. Knutson, 76 N.D. 375, 36 N.W.2d 323, 328 (1949), overruled on other grounds by Neibauer v. Well, 319 N.W.2d 143 (N.D.1982); Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12, 15 (1957) ("Now it is doubtless true that, in contracts of the general type of the instant one [an employment contract for services], a term of reasonable duration may be implied, with the result that they are not void for lack of an essential provision and are not terminable at will."); Edwards v. Morrison-Knudsen Co., 61 Wash.2d 593, 379 P.2d 735, 738 (1963); 27 Am.Jur.2d Employment Relationship § 38 (1996) (citing Shah v. Am. Synthetic Rubber Corp., 655 S.W.2d 489 (Ky.1983)). This is precisely the situation presented in the instant case.

"I 30 The determination of what constitutes a "reasonable time" of duration of the indefinite-length employment contract that is not terminable at will is either "(1) the time that seems reasonable in the light of the circumstances existing when the contract was made [or] (2) the time that seems reasonable in light of the cireumstances as they occur during the course of performance." McCauliff, 8 Corbin on Contracts § 34.11, at 262. The reasonableness of an implied duration term is a question of fact and is determined in reference to the circumstances surrounding the transaction, the situation of the parties, and the subject matter of the contract. See William B. Tanner Co. v. Sparta Tomah-Broad. Co., 716 F.2d 1155, 1159-60 (7th Cir.1983); Metal Assocs., Inc. v. E. Side Metal Spinning & Stamping Corp., 165 F.2d 163, 165 (2d Cir.1947); Consol. Theatres, Inc., 73 Cal.Rptr. 213, 447 P.2d at 335; Brown Loan & Abstract Co. v. Willis, 150 Ga. 122, 102 S.E. 814, 815 (1920); Ansbacher-Siegle Corp., 288 N.W. at 541; Tavel, 535 P.2d at 1288; Borough of W. Caldwell v. Borough of Caldwell, 26 N.J. 9, 138 A.2d 402, 412 (1958); Hall, 308 S.W.2d at 16-17; 17B C.J.S. Contracts § 440 (1999); Margaret N. Kuniffin, 5 Corbin on Contracts § 24.29 (revised ed.1998).

1 31 Corbin on Contracts' suggested treatment of contracts of this nature is based upon and supported by well-settled principles and rules of contract construction and interpretation. In the instant case, the employment contract was silent as to its duration and therefore indefinite or perpetual. Contracts of perpetual duration are generally disfavored by the law. See Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262, 270 (1940) ("The courts are prone to hold against the theory that a contract confers a perpetuity of right or imposes a perpetuity of obligation." (quotation omitted)); see also Borough of W. Caldwell, 138 A.2d at 412; Farley v. Salow, 67 Wis.2d 8393, 227 N.W.2d 76, 82 (1975). Interpretations which avoid construing a contract to have an indefinite duration are preferable. See Borough of W. Caldwell, 138 A.2d at 412-13; Farley, 227 NW.2d at 82; Kovachik v. Am. Auto. Ass'n, 5 Wis.2d 188, 92 N.W.2d 254, 256 (1958). Because the law disfavors contracts of perpetual performance or duration, courts will interpret a contract as being of indefinite duration only where the parties to the contract have clearly and unambiguously indicated their intentions to create a contract of indefinite duration through the use of express and positive language to that effect in the contract. See William B. Tanmer Co., 716 F.2d at 1159 ("Courts are reluctant to interpret contracts providing for some perpetual or unlimited contractual right unless the contract clearly states that that is the intention of the parties."); Mid-Southern Toyota, Ltd. v. Bug's Imps., Inc., 458 SW .2d 544, 549 (Ky.1970) ("The general rule is that a construction conferring a right in perpetuity will be avoided unless compelled by the unequivocal language of the contract."); Paisley, 148 S.W.2d at 271 ("A contract [for employment] for life will be upheld only where the intention, that the contract's duration is for life, is clearly expressed in unequivocal terms."); Borough of W. Caldwell, 138 A.2d at 412-18 ("[A) construction affirming a [contractual performance] right in perpetuity is to be avoided unless given in clear and peremptory terms," and "[i)t is not often that a promise will properly be interpreted as calling for perpetual performance" (internal quotations omitted)); 17B C.J.S. Contracts § 489 (1999) ("[A] construction conferring a right in perpetuity will be avoided unless compelled by the unequivocal language of the contract [and] a contract which purports to run in perpetuity must be adamantly clear that that is the parties' intent, in order to be enforceable."). Likewise, employment contracts that do not explicitly express the parties' intentions that the contract be for lifetime or permanent employment have been held to be unenforceable or merely terminable at the will of either party. See Chastain v. Kelly-Springfield Tire Co., 788 F.2d 1479, 1482, 1484 (11th Cir.1984); Littell v. Evening Star Newspaper Co., 120 F.2d 36, 37 (D.C.Cir.1941); 30 C.J.S. Employer-Employee Relationship § 28 (1992).

132 Where a contract is of indefinite or perpetual duration because of the lack of an explicit term, the law will imply into the contract a term that is reasonable under the cireumstances. See McCauliff, 8 Corbin on Contracts § 34.11, at 262; see also Metal Assocs., Inc., 165 F.2d at 165; Consol. The-atres, Inc., 73 Cal.Rptr. 218, 447 P.2d at 385; Brown Loan & Abstract Co., 102 S.E. at 815; Anne Arundel County v. Crofton Corp., 286 Md. 666, 410 A.2d 228, 232 (1980); Ansbach er-Siegle Corp., 288 NW. at 541; Tavel, 535 P.2d at 1288; Borough of W. Caldwell, 138 A.2d at 412-18; Erskine v. Chevrolet Motors Co., 185 N.C. 479, 117 SE. 706, 713-14 (1923); Harris v. Oho Oil Co., 57 Ohio St. 118, 48 N.E. 502, 505 (1897), Hall, 308 S.W.2d at 15; Farley, 227 NW.2d at 82; 17A Am.Jur.2d Contracts § 546 (1991); 27 Am. Jur2d Employment Relationship § 38 (1996) (citing Shah, 655 S.W.2d 489); 17B C.J.S. Contracts § 421 (1999); Kuniffin, 5 Cor-bin on Contracts § 24.29.

T33 The majority opinion criticizes this dissent for its lack of citation to Utah precedent in support of determining and implying a reasonable term of duration into the contract. This is empty criticism given that this case presents an issue of first impression in this jurisdiction.

T 34 The majority opinion incorrectly relies on Berube v. Fashion Centre, Ltd., TTl P.2d 1083 (Utah 1989), Brehany v. Nordstrom, Inc., 812 P.2d 49 (Utah 1991), and Johnson v. Morton Thiokol, Inc., 818 P.2d 997 (Utah 1991), as binding Utah authority that purportedly rejects the dissent's approach in this case. While the majority is correct in noting "that nothing in Johnson, Brehany, or Be-rube suggests that a court should sua sponte impose a term on an indefinite-length employment contract that provides for termination for cause," nothing in those decisions would prohibit the implication of a reasonable term into the contract either. Those cases simply do not go as far as articulating a governing rule applicable to the ease at hand and are focused on a separate and discrete issue not present in the instant case.

11 35 Specifically, the majority opinion's assertion that in Berube we noted (and purportedly endorsed) the notion that "courts long ago repudiated a common law rule under which a term was implied when an employment contract did not specify a duration" is not entirely correct and overstates Berube. The central issue in Berube was whether the termination-related provisions of an employer's employee handbook could be implied into the employment contract as implied-in-fact contract terms between the employer and employee such that the original indefinite-length employment contract would escape application of the "at-will" employment doe-trine that provides an indefinite-length employment contract is terminable by either party for good cause, cause, or no cause at all.

136 In the "historical development" portion of Justice Durham's plurality opinion in Berube, to which the majority opinion in this case cites, Justice Durham merely traced the historical development and adoption of the "at-will" employment doctrine in the United States.

187 In any event, that section of Berube does not stand for the proposition offered by the majority opinion. The historical review section of the Berube plurality opinion simply described the nineteenth century English common law rule stating that English courts, when faced with employment contracts of indefinite duration, would imply an arbitrary one-year term into the contract. Berube, 77l P.2d at 1040-41; see also McCauliff, 8 Corbin on Contracts § 34.11, at 257. Berube's historical review merely noted that American courts rejected the arbitrary one-year term implied by English courts in favor of the "at-will" employment doctrine. Berube, 771 P.2d at 1040-41. Berube simply acknowledged the historical rejection of the implication of a term of duration in an "at-will" employment contract. See id. It does not, as the majority opinion claims, reject the notion that a reasonable term could or should be implied into an employment contract that is by its own terms outside the "at-will" employment doctrine because of a just cause provision such that the parties are bound for a "reasonable time." See McCauliff, 8 Corbin on Contracts § 34.11, at 262. In fact, Justice Durham's opinion in Berube notes that the rejection of the English common law implied one-year term and the adoption of the "at-will" employment doctrine in the United States was "adopted by many jurisdictions without careful or thorough examination." Berube, Til P.2d at 1040. Thus, the most Berube can be cited for in this regard is the proposition that American courts uncritically rejected the arbitrary one-year implied term rule used by the English courts, but not the apparently unconsidered, yet supportable, notion that a reasonable term could or should be implied into an indefinite-length employment contract that by its own terms is not terminable at will. See McCauliff, 8 Corbin on Contracts § 34.11, at 262. Therefore, the majority opinion's statement in applying purportedly controlling Utah precedent to this case that "[wle do not apply the long-since rejected rule that previously required the implication of a term" is based on a misinterpretation of Berube's historical review. Regardless, this portion of the plurality Berube opinion, despite being joined by a majority of the court, was at best dicta in that it was historical exposition. Berube and its progeny simply do not prohibit the implication of a reasonable term into the contract at hand and are not binding precedent that govern whether a term of duration should be implied into the contract at issue.

138 Finally; Johnson and Brehaony likewise do not govern the present case or bar the imposition of an implied reasonable term of duration into the contract. Brekhany and Johnson, like Berube, were employee handbook or implied-in-fact contract term cases but go no further than Berube in their holdings and no more state an on-point or governing rule applicable in this case than does Berube.

139 Berube, Brehany, and Johnson all involved indefinite-length employment contracts and claims of wrongful termination. However, these cases merely explore and set rules for determining whether a plaintiff employee's claim for wrongful termination can escape the general "at-will" employment doe-trine. In other words, in those cases, this court was asked to determine whether an implied-in-fact term existed which would remove the contract from the general "at-will" employment doctrine under which a plaintiff employee could not sustain a wrongful termination action. If such an implied-in-fact term was found to exist, for example where an employer's employee handbook specified exclusive reasons for termination of its employees, then those provisions of the employment handbook were treated as implied-in-fact contract terms, removing the employment contract from the "at-will" employment doctrine rules and preventing the employer from terminating the contract for any or no cause.

€{40 The case at hand involves an indefinite-length contract which contained an express "just cause" provision. Because that provision was expressed, the analysis and rules in Berube, Brehany, and Johnson are not applicable; we already know that the express "just cause" provision takes us out of the general "at-will" employment doctrine rule. The issue here is how the trial court is to determine whether the duration of the contract is reasonable and how it is to arrive at such a reasonable duration. This is a question not previously addressed to this court and to which Berube, Brehany, and Johnson are not instructive. The legal propositions and rules of contract construction and interpretation presented in this dissent are more appropriate for use by the trial court in adjudicating this controversy on remand.

T41 Once the trial court determines the reasonable term under the cireumstances and that term is implied by law into the contract, the contract will necessarily be enforceable against the succeeding board under the see-ond prong of the Bair test articulated in the majority opinion because (1) the activity contracted for is proprietary and (2) the term or duration that was implied into the contract is de facto reasonable under the cireumstances.

€ 42 Having determined the reasonable duration of the contract, and therefore its enforceability, the trial court must then determine if the hospital breached the contract when it terminated Dr. Hardy. It could terminate him before the expiration of the implied term only for "just cause." If the trial court determines that the hospital had just cause to terminate the contract with Dr. Hardy, the hospital did not breach the contract and Dr. Hardy is not entitled to damages. If the trial court determines that the hospital did not have just cause to terminate the contract with Dr. Hardy, then the hospital breached the contract and Dr. Hardy is entitled to damages calculated consistent with the reasonable employment duration term implied into the contract. See Bad Wound v. Lakota Cmty. Homes, Inc., 1999 SD 165, ¶ 11, 603 N.W.2d 723, 726.

T 43 Under the majority opinion's analysis, Dr. Hardy's damages, assuming the hospital is Hable to Dr. Hardy for terminating him without just cause, would be speculative, at best, and undeterminable, at worst, absent a finite term of duration in the contract. See Benham v. World Airways, Inc., 432 F.2d 359, 360, 361-62 (9th Cir.1970); Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380, 386-87 (1988). It is for this reason that the law disfavors contracts of perpetual duration and why, when faced with contracts of indefinite duration, courts will imply a reasonable term of duration. If on remand the perpetual contract is held to be enforceable and the trial court determines that the hospital did not have just cause to terminate the contract, how would Dr. Hardy's damages be calculated? Would Dr. Hardy be entitled to all of his loss of earnings under the indefinite contract? In other words, would he be entitled to compensation under the contract from the date of termination to the date of his death? To the date of his retirement? To the date of his inability to perform his job responsibilities, whenever that might be? Determining a reasonable term for the contract under the cireumstances and implying it into the contract would avoid the possibility of speculative or undeterminable damages.

T44 The majority opinion disagrees that imposition of a definite term is justified and argues that the trial court would face similar "challenges" in determining a reasonable term of duration under the circumstances as it would in determining Dr. Hardy's speculative damages. The approach advocated in this dissent would focus the trial court's attention and efforts on the discrete task of discerning a reasonable term for the contract under the circumstances, thus centering the inquiry on the parties' intentions, the nature of the parties' relationship, and the overall cireumstances surrounding the formation of the contract at issue. See McCauliff, 8 Cor-bin on Contracts § 34.11, at 262. The majority opinion's suggestion for determining Dr. Hardy's potential damages would take the trial court's attention away from the contract itself and the context in which it was formulated and focus on myriad distant and less related factors, all of which remain at least to some extent speculative in nature. I would not send the trial court into the majority opinion's briar patch of thorny factors. In this case, it would be far less complicated and less speculative for the trial court to determine Dr. Hardy's potential damages in relation to an implied reasonable term.

[ 45 I would remand to the trial court but with instructions consistent with this concurring opinion.

[ 46 Justice HOWE concurs in Justice RUSSON's concurring and dissenting opinion.

      . Citing various criticisms of the governmental/proprietary test, both parties urge us to repudiate it in favor of other common law tests. However, because the parties have failed to show that any of their suggested tests is clearly better than the governmental/proprietary test, we decline to repudiate it at this time. See State v. Menzies, 889 P.2d 393, 398 (Utah 1994) (noting that because of stare decisis, "[those asking us to overturn prior precedent have a substantial burden of persuasion").

      . Dr. Hardy also argues that the rationale behind the common law rules does not apply (1) to appointed, staggered boards like the UBMC board of trustees, or (2) until a majority of the nine voting members of the board are replaced. These arguments are without merit. First, the rationale behind the common law rules applies to appointed, staggered governing bodies because preexisting contracts may also unduly inhibit these bodies in the performance of their public duties. See Mitchell, 132 A.2d at 877-78; Piedmont Pub. Serv. Dist. v. Cowart, 319 S.C. 124, 459 S.E.2d 876, 882 (App.1995). Second, there is inadequate support in the law for the contention that a majority turnover in the UBMC board is required before the board can challenge the contract. See Mariano & Assocs., P.C. v. Bd. of County Comm'rs, 737 P.2d 323, 331 (Wyo.1987) (concluding that precedent did not support argument that turnover in board was required before it could challenge validity of contract).
      In addition, Dr. Hardy argues that the successor UBMC board was precluded from terminating his contract because the board earlier ratified it. Since this issue was not raised below, we decline to address it. See Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996).

      . See Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 64, 44 P.3d 663 (noting that determination of scope of contractual "clause is a question of law for determination by the district court because it is a matter of contract interpretation").

      . Under UBMC's bylaws, although appointments to the medical staff are ostensibly limited to two years, staff members are reappointed unless there is "just cause." Under the bylaws, "just cause"" appears to have a broad scope: for instance, the board may terminate a member of the medical staff for any reason "reasonably related to the delivery of quality patient care."

      . Dr. Hardy asserts the following in his appellate brief:
      To entice excellent physicians to move to and remain in rural areas, hospitals often add perks to the contracts, including "just cause" termination provisions, or even "lifetime" contracts.... Given the necessities of the situation, such contracts are of reasonable duration. Thus, [Dr. Hardy's contract] passes the second part of the Bair test....
      Appellant's Br. at 21.
      Despite disagreeing with Dr. Hardy on the ultimate conclusion of whether an indefinite-length contract with a "just cause" provision is of reasonable duration, UBMC clearly agrees that the contract was of indefinite duration:
      The potentially perpetual duration of Dr. Hardy's contract with UBMC was limited only by the "just cause" provision.... [Dr. Hardy's] contract bound Duchesne County indefinitely....
      Appellee's Br. at 28-29.

      . The dissent acknowledges that parties may enter into an indefinite-length contract.

      . The dissent acknowledges that "both parties contend that the contract should be evaluated as an indefinite-length contract limited only by just cause," yet nonetheless argues for the imposition of a fixed duration. The dissent has cited no cases, nor are we aware of any, in which we rejected parties' mutual concessions that are in harmony and clearly expressed. Given that the goal in interpreting contracts is to give effect to the intent of the parties, we should be particularly reluctant to reject the parties' stipulations or concessions in this case.
      The clear import of the parties' concessions is that the parties intended the contract to be of indefinite duration. The imposition of a fixed duration is therefore incompatible with the parties' concessions. Moreover, the law in Utah and numerous other jurisdictions recognizes the right of parties to enter into indefinite length contracts terminable for cause. Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1000-01 & n. 9 (Utah 1991); e.g., Shah v. Am. Synthetic Rubber Corp., 655 S.W.2d 489, 491-92 (Ky.1983). In short, the imposition of a term would contradict the parties' stated intent, disregard their legal arguments, and impede their freedom to contract. This we decline to do.
      Significantly, the dissent also acknowledges that the parties have not argued in their appellate briefs that a term should be implied into the contract. In the absence of adequate briefing, it would be ill-advised for the court to raise this issue sua sponte, especially if the dissent is correct in asserting that this issue presents a question of first impression. Prince v. Bear River Mut. Ins. Co., 2002 UT 68, ¶ 59, - P.3d , 2002 WL 1610562 ("On myriad occasions, we have held that we will not address issues inadequately briefed.").

      . Although Berube was a plurality opinion, a majority of the court concurred in the portion of the opinion that traced the historical development of the common law of employment contracts.

      . The cases cited by the dissent are (1) from other jurisdictions and therefore not binding and (2) are either distinguishable from, or inapposite to, the present case. In reaching its conclusion, the dissent relies heavily on cases not involving employment contracts. This reliance is tenuous given the fact that courts have developed a unique set of rules for employment and personal service contracts. See generally Berube, 771 P.2d at 1040-41; Consol. Theatres, Inc. v. Theatrical Stage Employees Union, Local 16, 69 Cal.2d 713, 73 CalRptr. 213, 447 P.2d 325, 335 & n. 12 (1968) (noting that due to special policy considerations associated with employment contracts, such contracts are exempt from rule applicable to other contracts under which courts imply a term when a contract is silent as to duration).
      For example, the dissent cites Mid-Southern Toyota, Ltd. v. Bug's Imports, Inc., 453 S.W.2d 544, 549 (Ky.1970) in support of its position. That case did not involve an employment contract, however, and, moreover, when faced with an employment contract, the relevant jurisdiction (Kentucky) relies on rules of interpretation specifically tailored to employment contracts. Skah v. Am. Synthetic Rubber Corp., 655 SW.2d 489, 491-92 (Ky.1983) (confirming parties' right to enter into contracts under which person is employed for an indefinite period of time and may be terminated only for cause). Accordingly, the more pertinent case from the cited jurisdiction is consistent with the view that when an employment contract is silent as to duration, courts generally do not imply a fixed term of years. See id. Instead, as in Johnson, Kentucky courts presume such a contract is terminable at will unless the parties clearly express another criterion for termination (e.g., for cause). Id.
      The cases cited by the dissent that involve employment contracts provide little support for its conclusion that a term must be imposed on Dr. Hardy's contract. For example, when faced with an indefinite-length employment contract, the court in Paisley v. Lucas did not impose a term but rather applied rules of construction specific to employment contracts. 346 Mo. 827, 143 S.W.2d 262, 271 (1940).

      . The dissent asks the following:
      [If hospital breached the contract], how would Dr. Hardy's damages be calculated? Would Dr. Hardy be entitled to all of his loss of earnings under the indefinite contract? [WJould he be entitled to compensation ... to the date of his death? To the date of his retirement? To the date of his inability to perform his job responsibilities ... ?

      . The majority opinion criticizes this dissent for its citation to applicable, persuasive authority from the highest courts of our kindred states and dismisses that authority as nonbinding. Where this court has not addressed a particular question of law and where authoritative precedent from our own jurisdiction is absent, this court has not been reluctant to seek out the experience, reasoning, and counsel of the decisions of other high courts as persuasive guidance in our deliberations.
      The majority opinion also criticizes the dissent for its citation to certain cases involving contracts other than for the provision of employment or personal services. However, all of the cases cited in this paragraph involve contracts for employment or personal services.
      This dissent does cite to other nonemployment contract cases later in 132 for the additional proposition that courts generally will imply a term of duration into indefinite-length contracts. The majority opinion maintains that those non-employment cases are inapposite and that this dissent's reliance on them is tenuous because the courts have developed "a unique set of rules for employment and personal services contracts." To the extent that the cases mentioned by the majority opinion as recognizing special and different rules for employment contracts actually refer to special rules or policy considerations for employment contracts, they do so only in reference to the adoption of the general "at-will" employment doctrine and its exceptions. Those cases do not recognize special and different rules with respect to the propriety of implying a reasonable term into an employment contract that is silent as to its duration but dutside of the "at-will" employment doctrine because of the explicit inclusion of an express "just cause" provision, such as the contract at issue here. In this regard, the majority opinion misreads Berube v. Fashion Centre, Ltd., 771 P.2d 1033 (Utah 1989), Consolidated Theatres, Inc., Shah, and Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262 (1940). The cases cited herein otherwise stand for the proposition for which they are cited and support the implication of duration for a reasonable period.

      . The majority opinion notes that the parties have not argued in their appellate briefs that a term should be implied into the contract and that both parties contend that the contract should be evaluated as an indefinite-length contract limited only by the just cause provision. This incorrectly elevates the parties' arguments in the briefs to the level of an agreement between the parties on this point and treats it as a stipulation. Nothing in the record or the briefs indicates that the parties have stipulated in the manner the majority opinion claims. The parties do not deny that they did not include an explicit provision in the contract expressing their intentions purposely to create an indefinite-length contract. If the parties to a contract intend to create an indefinite-length contract, they must express their intentions to do so through clear, unambiguous, and unequivocal language in the contract. The parties' questionable "concession" in this regard in their briefs on appeal obviously fails to meet this standard and is contrary to the rule of law stated in the cited authority. Both Johnson and Shah may recognize the rights of parties to enter into indefinite-length contracts, but they do not dispute or contradict the requirement that the parties do so using explicit language in their contract.
      In any event, under normal circumstances, we will treat particular facts or issues as stipulated to by the parties only where such a stipulation is clear and expressed. Rarely, if ever, do we find a stipulation of this nature by implication. The notion of an implied stipulation is contrary to the very nature of a stipulation as a clear, definite, and certain agreement by the parties as to the truth or validity of a particular fact.
      Finally, the majority opinion also admonishes the dissent that "[iJn the absence of adequate briefing, it would be ill-advised for the court to raise [the issue of implying a reasonable term] sua sponte, especially [where] this issue presents a question of first impression." This, however, ignores our settled position that this court has inherent authority to consider arguments and issues that the parties have not raised or recognized if it is necessary to a proper decision and to avoid bad law. See Kaiserman Assocs., Inc. v. Francis Town, 977 P.2d 462, 464 (Utah 1998) ("[Aln overlooked or abandoned argument should not compel an erroneous result [and][wle should not be forced to ignore the law just because the parties have not raised or pursued obvious arguments."). Simply because the parties did not recognize the issue on appeal or because they are in supposed agreement in their argumentative position, erroneous as it may be, on appeal, we will not ignore a genuine legal issue or acquiesce in the parties' error and apply incorrect legal principles.

      . The majority opinion also argues that under the dissent's analysis courts will "inevitably and routinely need to determine damages associated with a breach of an indefinite employment contract." This is incorrect. The vast majority of cases involving issues of termination under indefinite-length employment contracts will be governed by the "at-will" employment doctrine. In those instances, the issue of damages would not arise because the employment relationship would be terminable by either party for any reason. The problematic issue of damages arises only in the very rare and unique case, such as the one at hand, where an expressed or implied "just cause" term is a part of the indefinite duration contract, thus removing the case from the application of the usual "at-will" employment doctrine rule.


source: Caselaw Access Project

author: RUSSON, Justice:

license: Public Domain

text:
    2002 UT 94
    WILSON SUPPLY, INC., dba Pro Power Equipment Co., Plaintiff and Appellee, v. FRADAN MANUFACTURING CORP., Defendant and Appellant.
    No. 20001035.
    Supreme Court of Utah.
    Sept. 6, 2002.

      David L. Bird, Gregory J. Adams, Salt Lake City, for plaintiff.
    Frank D. Mylar, Salt Lake City, for defendant.
   RUSSON, Justice:

T1 Fradan Manufacturing Corporation ("Fradan") appeals the trial court's judgment in favor of Wilson Supply, Inc. ("Wilson Supply"). We affirm.

BACKGROUND

T2 From approximately September 1996 to November 1997, Fradan supplied Wilson Supply "d.b.a." Pro Power Equipment Company ("Pro Power") with various yard and garden equipment products, and attendant repair parts ("Fradan inventory") for retail sale to consumers and end users. The agreement between Wilson Supply and Fra-dan was unwritten.

13 In or around October 1997, Wilson Supply notified Fradan that Wilson Supply was terminating its agreement to retail Fra-dan's products and parts and requested that Fradan repurchase Wilson Supply's unsold Fradan inventory pursuant to Fradan's statutory obligation to do so as set forth in section 18-14a-2 of the Utah Code, the Utah "Equipment Repurchase from Retail Dealers" or "buy-back" statute. See Utah Code Ann. §§ 18-14a-1 to -9 (1999). Fradan refused to repurchase Wilson Supply's unsold Fradan inventory.

PROCEDURAL HISTORY

T4 On December 3, 1998, Wilson Supply brought suit to compel Fradan's compliance with its statutory obligations under the buyback statute. Wilson Supply did not request a jury trial.

T5 In response to a discovery dispute, on November 12, 1999, Fradan moved the trial court for a protective order aimed at protecting certain of Fradan's pricing information. In February 2000, both Wilson Supply and Fradan moved for summary judgment. On March 24, 2000, the trial court held a hearing on the cross-motions for summary judgment and Fradan's outstanding motion for a protective order. The trial court heard oral argument on these motions but reached no conclusion and made no ruling. According to a minute entry dated August 3, 2000, the trial court notified Wilson Supply and Fra-dan of the trial court's sua sponte scheduling of an evidentiary hearing on the issue of whether Wilson Supply was a dealer or a wholesaler for purposes of the buy-back statute.

T6 On September 19, 2000, the evidentiary hearing was held. Wilson Supply and Fra-dan were present and represented by counsel, and the trial court allowed each side to present evidence and to examine and cross-examine witnesses. Brett Wilson and Scott Wilson, president and vice president of Wilson Supply, respectively, and Frank Debarto-lo, president of Fradan, testified. At the conclusion of the oral testimony, the trial court made oral findings of fact on the record and concluded as a matter of law that Wilson Supply was a dealer under the buy-back statute and that the statute obligated Fradan to repurchase Wilson Supply's unsold Fradan inventory. The trial court instructed Wilson Supply to prepare an order and judgment consistent with the trial court's ruling. Fra-dan made no procedural objections at the conclusion of the evidentiary hearing and submitted objections only to the form of the proposed order and judgment. On October 31, 2000, the trial court entered its order and judgment in favor of Wilson Supply. Fradan timely appealed.

17 On appeal, Fradan argues that the trial court misinterpreted and misapplied the buyback statute in determining that Wilson Supply was a dealer for purposes of the statute, obligating Fradan to repurchase Wilson Supply's unsold Fradan inventory. In addition, Fradan argues that, to the extent the trial court found facts based upon the oral testimony received at the evidentiary hearing on the eross-motions for summary judgment and relied upon those findings of fact in reaching its legal conclusions, the trial court's findings of fact were clearly erroneous and not supported by sufficient evidence. Fradan also argues that because Wilson Supply sold its Pro Power retail outlets during the pendency of the action, Wilson Supply no longer has the right to assert its repurchase rights under the buy-back statute. Finally, Fradan argues that the trial court's findings of fact, conclusions of law, and grant of judgment against Fradan were retributive and punitive, stemming from the trial court's "hostility and anger" toward Fradan regarding the parties' underlying discovery dispute and Fradan's motion for a protective order.

T8 Wilson Supply counters that the trial court's findings of fact were supported by sufficient evidence and that the trial court correctly interpreted and applied the buyback statute. Wilson Supply also denies Fradan's allegations that the trial court was motivated in its ruling by bias or animosity against Fradan or that Wilson Supply attempted to capitalize on any "home-state bias" from the trial court.

STANDARD OF REVIEW

19 This case was before the trial court on cross-motions for summary judgment. However, instead of ruling on the motions, the trial court set the matter for an evidentiary hearing on the dispositive issue of whether Wilson Supply was a dealer or a wholesaler. At the hearing, both parties called and cross-examined witnesses. The trial court then made oral findings of fact and concluded as a matter of law that Wilson Supply was a dealer. The evidentiary hearing was essentially a trial on the merits of the dispositive issue and should be treated as such. See Tripp v. May, 189 F.2d 198, 200 (7th Cir.1951); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2720 (3d ed.1998) ("[When the [trial] court is ruling on cross-motions [for summary judgment], [and] the facts ... become fully developed at the hearing on the motionsl,] ... in a nonjury case the court may proceed to decide the factual issues and render a judgment on the merits without any further delay if it is clear that there is nothing else to be offered by the parties and there is no prejudice in proceeding in this fashion.... [This procedure amounts to a trial of the action and technically is not a disposition by summary judgment.").

[ 10 The events of the evidentiary hearing, including the parties' presentation and cross-examination of witnesses and the trial court's entry of findings of fact and conclusions of law, essentially and practically amount to a trial on the merits of the case. The parties' conduct subsequent to the proceeding below also supports this conclusion. Fradan made no objection at the close of the evidentiary hearing to the trial court's entry of findings of fact and conclusions of law or the procedural course of the case at that juncture. Wilson Supply argues in its briefs and at oral argument before this court that the eviden-tiary hearing was a trial and should be treated as such for purposes of appellate review. Finally, on appeal, Fradan, at least in the alternative, appears to view the proceedings below as a trial by challenging the sufficiency of the evidence to support the trial court's findings of fact. Therefore, we treat this case as if it had come before us for review after a bench trial on the merits, and we review it accordingly.

111 "Generally, we review a trial court's legal conclusions for correctness, according the trial court no particular deference." Orton v. Carter, 970 P.2d 1254, 1256 (Utah 1998); see also Newspaper Agency Corp. v. Auditing Div. of State Tax Comm'n, 938 P.2d 266, 267 (Utah 1997). Specifically, whether the trial court properly interpreted and applied the Utah buy-back statute in this case is a question of law that we review for correctness. See State Dep't of Natural Res. v. Huntington-Cleveland Irrigation Co., 2002 UT 75, ¶ 12, 52 P.3d 1257; State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, ¶ 8, 44 P.3d 680.

112 We review a trial court's findings of fact according to the standard set out in Utah Rule of Civil Procedure 52(a), which provides: "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Id.; see also Orton, 970 P.2d at 1256-57; Consolidation Coal Co. v. Div. of State Lands & Forestry, 886 P.2d 514, 522 (Utah 1994); Reid v. Mut. of Omaha Ins. Co., 776 P.2d 896, 899 (Utah 1989). "A trial court's factual finding is deemed 'clearly erroneous' only if it is against the clear weight of the evidence." Doelle v. Bradley, 784 P.2d 1176, 1178 (Utah 1989); see also Willard Pease Oil & Gas Co. v. Pioneer Oil & Gas Co., 899 P.2d 766, 773 (Utah 1995); Reid, 776 P.2d at 899-900.

ANALYSIS

I. STATUTORY INTERPRETATION

113 Fradan first argues that the trial court erred in concluding as a matter of law that Wilson Supply was a dealer as defined by the buy-back statute and therefore was entitled to the benefit of the manufacturer repurchase requirement of the statute. Fra-dan contends that, inasmuch as Wilson Supply sold certain of its inventory, allegedly including some of its Fradan inventory, at wholesale, it was a wholesaler as defined by the buy-back statute and therefore precluded from relying on the manufacturer repurchase provisions of the buy-back statute since those provisions apply solely to dealers, not to wholesalers. Essentially, Fradan argues that the buy-back statute should be interpreted such that only business entities conducting business exclusively as dealers are entitled to the benefits of the repurchase provisions of the statute. In other words, according to Fradan's interpretation of the statute, because Wilson Supply sold some of its inventory at wholesale even though Wilson Supply sold its Fradan inventory at retail through its Pro Power stores, it is disqualified from the benefits of the repurchase provisions because those provisions of the buyback statute apply only to dealers who never sell at wholesale. We disagree with Fradan's interpretation of the buy-back statute and find no error in the trial court's interpretation and application of the statute.

{14 "When interpreting statutes, we determine the statute's meaning by first looking to the statute's plain language, and give effect to the plain language unless the language is ambiguous." Blackner v. State Dep't of Transp., 2002 UT 44, ¶ 12, 48 P.3d 949; see also State Dep't of Natural Res. v. Huntington-Cleveland Irrigation Co., 2002 UT 75, ¶ 13, 52 P.3d 1257.

1 15 The Utah buy-back statute provides in pertinent part:

Upon termination of all sales agreements in which the dealer has agreed to offer the products of the manufacturer or wholesaler for retail sale and to stock wholegoods and parts inventories as may or may not be required by the manufacturer or wholesaler, the retailer is entitled to payment or credit from the manufacturer or wholesaler for all new and unsold wholegoods and parts inventories held by the dealer on the date the agreement was terminated.

Utah Code Ann. § 13-14a-2(1) (1999).

116 In this same chapter, the Utah Code defines "dealer" as "any person, firm, or corporation engaged in the business of selling and retailing farm equipment, implements, utility and light industrial equipment, attachments, or repair parts, and includes retailers of yard and garden equipment not primarily engaged in the farm equipment business." Id. § 18-l4a-1(1)(a). The statute explicitly excludes from the definition of dealer "(i) a person who is engaged in the business of sales and service of heavy industrial or construction equipment; or (M) a person, firm, or corporation who serves as the dealer for a membership group purchasing program." Id. § 18-14a-1(1)(b).

117 Fradan's interpretation of the statute is not supported by the plain language of the statute. According to the statute's terms, dealers are entitled to the benefit of the repurchase provision. The statute clearly defines dealers as those business entities engaged in the business of selling and retailing certain equipment, including retailers of yard and garden equipment. The statutory definition in no way limits the definition of dealer to exclude a business entity that sells at retail and at wholesale. The legislature was clearly capable of crafting specific exclusions to the definition of dealer as it did in subsection 13-14a-1(1)(b). Had the legislature intended to exelude business entities that engage in both retail and wholesale selling as Fradan suggests, it could have specified that dealer means only those business entities that engage exclusively in the business of retailing. It did not do so.

1 18 Therefore, the relevant inquiry in this case is whether Wilson Supply "engaged in the business of selling and retailing ... yard and garden equipment." Id. § 13-14a-1(1)(a). When the facts of the case are applied to the plain language of the statute, it is clear that Wilson Supply is entitled to the benefits of the manufacturer repurchase provision of the buy-back statute. In the words of the statute,

Upon termination of all sales agreements in which the dealer [Wilson Supply "d.b.2." Pro Power] has agreed to offer the products of the manufacturer or wholesaler for retail sale and to stock wholegoods and parts inventories as may or may not be required by the manufacturer [Fradan] or wholesaler [not applicable here}, the retailer [Wilson Supply "d.b.a." Pro Power] is entitled to payment or credit from the manufacturer [Fradan] or wholesaler [not applicable here] for all new and unsold wholegoods and parts inventories held by the dealer [Wilson Supply "d.b.a" Pro Power] on the date the agreement was terminated.

Id. § 18-14a-2(1).

' 19 The trial court did not err in concluding, based upon the findings of fact, that Wilson Supply was a dealer under the statute and therefore that Fradan was obligated to repurchase Wilson Supply's unsold Fradan inventory.

120 Finally, Fradan argues that because Wilson Supply sold its retail stores during the pendency of the litigation, it forfeited its repurchase rights under the buyback statute. Fradan's argument is unavailing. The plain language of the statute provides that the benefit of compulsory repurchase is effective "[ulpon termination of all sales agreements" and that the dealer is "entitled to payment or credit from the manufacturer ... on the date the agreement was terminated." Id. § 18-14a-2(1). In this case, the sales agreement between Wilson Supply and Fradan was terminated in October 1997. At that time, Wilson Supply's right accrued under the buy-back statute. Wilson Supply's subsequent sale of its retail stores, or any other of its assets other than the unsold Fradan inventory, has no bearing on Wilson Supply's payment and credit rights under the statute.

II. SUFFICIENCY OF THE EVIDENCE

121 Fradan argues that the trial court's factual findings are " 'clearly erroneous' and based upon an apparent hostility towards FRADAN that was in turn based upon the court's misunderstanding of a discovery dispute." To mount a successful attack upon a trial court's findings of fact, an appellant must first marshal all the evidence in support of the finding and then demonstrate that the evidence is legally insufficient to support the finding even when viewing it in a light most favorable to the court below. Willard Pease Oil & Gas Co. v. Pioneer Oil & Gas Co., 899 P.2d 766, 773 (Utah 1995); see also Consolidation Coal v. Div. of State Lands & Forestry, 886 P.2d 514, 522 (Utah 1994); Doelle v. Bradley, 784 P.2d 1176, 1178 (Utah 1989); Reid v. Mut. of Omaha Ins. Co., 776 P.2d 896, 899 (Utah 1989). In other words, an appellant who challenges the sufficiency of the evidence supporting a finding of fact has the burden of combing the record for and compiling all of the evidence that supports the finding of fact and explaining why that evidence is legally insufficient to support the finding of fact.

122 An appellant fails to meet its marshaling burden if it merely restates or reviews the evidence that supports an alternate finding or a finding contrary to the trial court's established finding of fact. In some instances, as in this case, an appellant, in attempting to meet its marshaling burden, also might assert that the record does not contain any evidence in support of a particular finding of fact. Under such cireum-stances, the heavy burden of marshaling all of the evidence in support of the finding of fact does not shift to the appellee in order to refute the appellant's assertion of the absence of evidence. Rather, the appellee, when confronted with such a "no evidence" sufficiency challenge, need only point to a scintilla of credible evidence from the record that supports the finding of fact in order to overcome the appellant's "no evidence" assertion and to demonstrate that the appellant has failed to meet its marshaling burden.

123 Initially, throughout Fradan's challenge to the trial court's findings of fact, Fradan continually repeats its allegation that "all of [the] findings are the result of an unjust, punitive, and abusive action taking [sic] by the trial court based upon an unliti-gated discovery dispute." Despite its repetition of this assertion, Fradan does not point to any evidence in the record or elsewhere indicating that Fradan's assertion of bias or retributive motivation on the part of the trial court is anything but a conclusory allegation. Such a bald assertion, without more, does not mount a compelling challenge to the correctness of the trial court's findings of fact or constrain us to reverse those findings.

1 24 In its attempt to meet its marshaling burden, Fradan restates what it characterizes as the trial court's "hasty and eryptic" findings of fact. While we agree that the trial court's findings of fact are not a model of clarity, they are sufficiently clear for us to review. After restating the trial court's findings of fact, Fradan then proceeds to challenge the sufficiency of the evidence underlying certain of those findings.

125 Instead of reviewing every challenged finding of fact, some of which are wholly irrelevant given our interpretation and application of the buy-back statute, see supra part I, we limit our review to only the material, determinative findings of fact.

126 As to the material findings of fact, Fradan has not met its "heavy burden of marshaling." Consolidation Coal, 886 P.2d at 522. In its memoranda of law, Fra-dan does not set forth evidence in support of the trial court's findings; rather, Fradan merely cites to portions of the testimony that favor its position or argues that there is no evidence to support the trial court's finding. Fradan's "failure to marshal the evidence and demonstrate that the trial court's findings were clearly erroneous in light of the evidence allows us to affirm the court's findings on that basis alone." State v. Widdison, 2001 UT 60, 161, 28 P.3d 1278. In any event, the trial court's material findings of fact are supported by sufficient evidence.

T27 The trial court found that "the initial business relationship that was created with [Wilson Supply "d.b.2a."] Pro Power was intended to be a manufacturer to a retailer direct." Fradan points to certain evidence in the record supporting the finding and argues that it is "far too slim for the court to make the leap of faith that FRADAN contracted directly with each separate retail outlet." Fradan, however, ignores the testimony of Wilson Supply's president Brett Wilson that (1) Fradan's sales manager first approached Brett Wilson at Wilson Supply's Pro Power retail store in Murray, Utah, (2) Brett Wilson at that time explained to Fradan's sales manager that Wilson Supply wanted to retail Fradan's products through its retail stores, and (8) Brett Wilson and Fradan's sales manager orally agreed at that time that Wilson Supply would sell Fradan's products at retail. This testimony is sufficient to support the trial court's finding.

{28 The trial court also found that "Fra-dan's product was marketed by [Wilson Supply 'd.b.a.'] Pro Power at retail" and that "all of the sales that were engaged in by [Wilson Supply 'd.b.a.'] Pro Power Equipment were retail final sales to ultimate users." Fradan challenges this finding of fact only to the extent it implies that Fradan dealt directly with the three Pro Power retail stores, not with Wilson Supply. It does not deny that there is sufficient evidence to support the trial court's conclusion that Pro Power retailed Fradan's product. Fradan instead argues that the trial court did not find that Wilson Supply retailed Fradan's products and that there was no evidence in the record to support such a finding in any event. Again, Fradan's argument fails because Wilson Supply and Pro Power were the same entity. Therefore, the trial court's finding that Pro Power retailed Fradan's products also means it had found that Wilson Supply had retailed Fradan's products, so we affirm that finding.

129 The remainder of the trial court's findings of fact challenged by Fradan are not relevant to the application of the statute, and therefore, we need not review them. The trial court's relevant and material findings of fact were supported by sufficient evidence and are not clearly erroneous.

CONCLUSION

130 The trial court's findings that Wilson Supply entered into a manufacturer-to-retailer direct business relationship and that Wilson Supply in fact marketed Fradan's products at retail as final sales to end users were supported by sufficient evidence and therefore were not clearly erroneous. The trial court did not err as a matter of law in concluding on the basis of those findings of fact that Wilson Supply was a dealer under the buy-back statute. Having concluded that Wilson Supply was a dealer, the trial court properly applied the buy-back statute by determining that Fradan, as the manufacturer that supplied Wilson Supply wholegoods and parts for sale at retail, was required to repurchase Wilson's unsold Fradan inventory at the time Wilson Supply terminated its oral retail sales agreement with Fradan. Accordingly, we affirm.

[ 31 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice WILKINS concur in Justice RUSSON'S opinion.

      . Wilson Supply conducted its retail business under the name Pro Power Equipment Company. The abbreviated appellation "d.b.a." stands for "doing business as" and is a designation contemplated and permitted by statute, see Utah Code Ann. §§ 42-2-5 to -11 (1998 & Supp.2001), indicating a business entity conducting its business in a name different from the name under which it is incorporated, registered, or otherwise known.
      At the evidentiary hearing held in connection with this case, the parties stipulated that Wilson Supply and Pro Power were one and the same business entity, not separate and distinct entities. The trial court uses both appellations interchangeably; in our analysis here, references to Wilson Supply mean Wilson Supply "d.b.a." Pro Power, and we consider them to be the same entity.

      . The trial court never ruled on Fradan's motion for a protective order in connection with certain of its pricing information, and the parties appear to have agreed in the proceedings below that resolution of the motions for summary judgment would obviate the need to resolve the motion for a protective order.

      . Several of the trial court's findings of fact are not relevant or material to the proper application of the buy-back statute and the trial court's ultimate determination that Fradan was obligated to repurchase Wilson Supply's unsold Fradan inventory pursuant to the buy-back statute. For example, Fradan asserts that the trial court's "references to Cantrell being the wholesaler to WILSON SUPPLY are not supported by any evidence in the record." Fradan later admits that such a finding is "immaterial." The fact that another business entity, e.g., Cantrell, was selling Fradan's products at wholesale is irrelevant and immaterial to the issue or question of whether Wilson Supply sold Fradan's products at retail and whether consequently Wilson Supply is entitled to rely on the repurchase provision of the buy-back statute. Because such a finding of fact is not a material fact, it is irrelevant whether that finding is clearly erroneous.

      . In challenging this particular finding of fact, and throughout its arguments on appeal, Fradan apparently loses sight of the fact that Wilson Supply and Pro Power are one and the same business entity. A common refrain throughout Fradan's challenge to the sufficiency of the evidence in support of the trial court's finding of fact is the assertion that while there may be evidence supporting particular findings regarding Pro Power, there is no evidence supporting that same finding with regard to Wilson Supply. As we have previously explained, the fact that Wilson Supply and Pro Power are one and the same business entity was stipulated to by the parties at the evidentiary hearing. See supra note 1.