text:
    In the MATTER OF the ADOPTION OF B.H., a person under eighteen years of age.
    P.H. and A.D., Appellees, v. C.S., Appellant.
    No. 20171038-CA
    Court of Appeals of Utah.
    Filed June 13, 2019
    Julie J. Nelson, Alexandra Mareschal, and Lisa Lokken, Cottonwood Heights, Attorneys for Appellant
    Jessica S. Couser and Benjamin K. Lusty, Salt Lake City, Attorneys for Appellees
    Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.
    Opinion
   MORTENSEN, Judge:

¶1 Although M.S. (Mother) and C.S. (Father) had been married since 2008, Mother claimed that a man other than Father (Purported Father) was the biological parent of B.H. (Child), who was born in Montana in early 2016. Within one week of Child's birth, Mother voluntarily relinquished her parental rights and Child was placed into the custody of P.H. and A.D. (Adoptive Parents), who resided in Utah. Adoptive Parents filed a petition for adoption in the State of Utah. Father was served notice of the adoption proceedings and he intervened in the action. After a bench trial, the district court terminated Father's parental rights and finalized the adoption. On appeal, Father argues that (1) the district court lacked subject matter jurisdiction to terminate his parental rights and (2) the district court erred in finalizing the adoption because the Interstate Compact on the Placement of Children (ICPC) request form, filled out by Mother, was materially deficient in that it listed Purported Father, rather than Father, as the parent of Child. We conclude that the district court had jurisdiction, but set aside the adoption decree and remand for additional findings and conclusions on compliance with the ICPC.

BACKGROUND

¶2 Child was born in Montana on January 30, 2016. Less than one week after Child's birth, Mother and Purported Father voluntarily relinquished their parental rights and consented to place Child for adoption with Adoptive Parents, who resided in Utah. Child was discharged from the hospital and placed into the custody of Adoptive Parents on February 5, 2016. Adoptive Parents remained in Montana until an ICPC request form 100A, listing Mother and Purported Father as Child's parents, was approved by all the required ICPC administrators on February 9, 2016. The record indicates that Adoptive Parents transported Child to Utah the next day, on February 10, 2016.

¶3 Adoptive Parents initiated adoption proceedings by filing a petition (Adoption Petition) on January 26, 2016. On February 10, 2016, Adoptive Parents filed a Motion for Temporary Custody of Child and indicated that they had "recently learned that [Mother] is still technically married to [Father]" and Adoptive Parents were "working on determining paternity and/or providing notice to address any legal interests [of Father]." The district court granted temporary custody of Child to Adoptive Parents the next day (Temporary Custody Order).

¶4 On February 22, 2016, Adoptive Parents sent notice of the adoption proceedings to Father. Father intervened two weeks later.

¶5 Meanwhile, Father filed for divorce from Mother in Montana on March 14, 2016. As part of the divorce, the Montana court ordered genetic testing of Father and Child, which determined that Father was Child's biological parent.

¶6 On June 29, 2016, Adoptive Parents petitioned the district court-in the adoption proceedings-to terminate Father's parental rights (Termination Petition). The district court held a bench trial on the Termination Petition on July 31, 2017. After the trial, but before ruling on Father's parental rights, the district court ordered the parties to file a memorandum addressing whether the court had jurisdiction to terminate Father's parental rights. The district court concluded that it had jurisdiction under Utah Code section 78B-6-105, terminated Father's parental rights, and finalized the adoption.

¶7 Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 Father raises two issues. First, he contends that the district court erred in concluding that it had jurisdiction to terminate his parental rights. Issues concerning jurisdiction are reviewed for correctness and we grant no deference to the district court's conclusion. State v. Wynn , 2017 UT App 211, ¶ 11, 407 P.3d 1113 ; see also State v. Nicholls , 2006 UT 76, ¶ 3, 148 P.3d 990 ; In re A.J.B. , 2017 UT App 237, ¶ 12, 414 P.3d 552.

¶9 Second, Father contends that the district court erred in finalizing the adoption, because the ICPC was not complied with. " 'The proper interpretation and application of a statute is a question of law which we review for correctness ....' " In re P.F.B. , 2008 UT App 271, ¶ 10, 191 P.3d 49 (omission in original) (quoting Gutierrez v. Medley , 972 P.2d 913, 914-15 (Utah 1998) ).

ANALYSIS

I. Jurisdiction

¶10 Father contends that the district court erred in terminating his parental rights, because the court lacked jurisdiction under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Father also contends that the court lacked jurisdiction under the Utah Adoption Act, see generally Utah Code Ann. §§ 78B-6-101 to -146 (LexisNexis 2018), because, under these facts, jurisdiction under the UCCJEA must be established as a prerequisite to jurisdiction under the Adoption Act. We review jurisdictional requirements under the Adoption Act and UCCJEA in turn.

A. Adoption Act

¶11 The Adoption Act confers jurisdiction over adoption proceedings "in the district where the prospective adoptive parent resides." Utah Code Ann. § 78B-6-105(1)(a) (LexisNexis 2018). Thus, as an initial matter, where Adoptive Parents reside in Utah and the Adoption Petition was filed in Utah, the district court below properly exercised jurisdiction under the Adoption Act. But Father argues that the district court lacked jurisdiction to terminate his parental rights under the Adoption Act "because the termination proceeding is not itself the adoption proceeding." This argument is unavailing for two reasons.

¶12 First, the Adoption Act expressly confers subject matter jurisdiction to terminate parental rights for the purpose of facilitating an adoption. Id. § 78B-6-112(1). Section 78B-6-112 also expressly states that a petition to terminate parental rights may be "(a) joined with a proceeding on an adoption petition; or (b) filed as a separate proceeding before or after a petition to adopt the child is filed." Id. § 78B-6-112(2). Here, Adoptive Parents initiated the adoption proceedings by filing the Adoption Petition in January 2016. And in June 2016, Adoptive Parents filed the Termination Petition in the same adoption proceedings. Because the Adoption Act expressly provides for jurisdiction over a petition to terminate parental rights when that petition is filed within an adoption proceeding, and because that procedure was followed here, we conclude that the district court had jurisdiction over both the Adoption Petition and the Termination Petition.

¶13 Father cites the dissenting opinion in Osborne v. Adoption Center of Choice , 2003 UT 15, 70 P.3d 58, to support his argument that the termination proceeding was separate from the adoption proceedings. See id. ¶ 53 (Durham, J., dissenting) ("[A determination of parental rights] is not an adoption proceeding, but a separate proceeding that precedes an adoption proceeding." (cleaned up)). This argument falls short for two reasons. First, despite the dissent's position in Osborne , the majority held that the district court did not exceed its jurisdiction by making a parental-rights determination within the adoption proceedings. Id. ¶¶ 12-13, 29 (majority opinion). Second, the relevant portion of the Utah Code in effect at the time Osborne was decided provided that a petition for determination of parental rights may be filed " 'at any time prior to the filing of a petition for adoption.' " Id. ¶ 45 (Durham, J., dissenting) (emphasis added) (quoting Utah Code Ann. § 78-30-4.24 (2002) ). However, this provision was amended after Osborne and permits a determination of parental rights to be requested by petition any time prior to the "finalization of an adoption," id. § 78B-6-109(1)(a)-(b) (LexisNexis 2018) (emphasis added), or by motion within an adoption proceeding, id. § 78B-6-109(2). Accordingly, because precedent and the applicable Utah statute allow for a determination of parental rights within an adoption proceeding, we conclude that Father's argument is without merit.

¶14 Second, the district court in this case had jurisdiction to terminate Father's parental rights, despite the fact that he resides in Montana, because Father received notice of the adoption proceedings and intervened. The Adoption Act provides that "the fact of the minor's presence within the state shall confer jurisdiction ..., provided that due notice has been given in accordance with the Utah Rules of Civil Procedure." Id. § 78B-6-105(4)(a) ; cf. Beltran v. Allan , 926 P.2d 892, 898 (Utah Ct. App. 1996) (holding that an out-of-state father was subject to Utah's statutory scheme and therefore required to file notice of paternity because he was on notice that the mother was in Utah to place their child for adoption). Here, Father received notice of the adoption proceedings on February 22, 2016. Specifically, he was served notice that (1) adoption proceedings had been filed in Utah, (2) he could intervene in the adoption proceedings, and (3) his failure to intervene would result in a waiver and forfeiture of all rights in relation to Child. This notice was sufficient to confer jurisdiction to the district court under section 78B-6-105(4)(a) of the Adoption Act.

¶15 The exercise of jurisdiction over a non-resident is not unique to this case. Our supreme court in In re adoption of B.B.D. , 1999 UT 70, 984 P.2d 967, held that when a non-resident father intervened in adoption proceedings, he "voluntarily invoked and submitted to the jurisdiction of Utah, its laws, and its court system." Id. ¶ 29. This holding illustrates that when an out-of-state father intervenes in adoption proceedings, he has not only waived personal jurisdiction but also submitted to Utah's laws. Id. ¶¶ 30-33 ; see also Beltran , 926 P.2d at 898 (holding that an out-of-state father was subject to Utah's statutory scheme upon receiving notice). Accordingly, Father's intervention in the adoption proceedings invoked the jurisdiction of the district court, including jurisdiction to terminate Father's parental rights as part of the overall adoption proceedings.

B. UCCJEA

¶16 Father argues that "Utah cannot terminate a parent's rights in the context of an adoption without that court having acquired jurisdiction to do so under the UCCJEA." In other words, Father contends that, under these facts, jurisdiction under the UCCJEA is a prerequisite to jurisdiction under the Adoption Act. We disagree.

¶17 Father first relies on section 78B-13-201 of the UCCJEA, which provides that the UCCJEA is the "exclusive jurisdictional basis for making a child custody determination." Utah Code Ann. § 78B-13-201(2) (LexisNexis 2018). The UCCJEA also expressly provides, however, that "[t]his chapter does not govern ... an adoption proceeding." Id. § 78B-13-103(2). And the UCCJEA defines "adoption proceeding" broadly: "For purposes of this section, 'adoption proceeding' means any proceeding under Title 78B, Chapter 6, Part 1, Utah Adoption Act." Id. § 78B-13-102(1). Thus, where the plain language of the UCCJEA unambiguously excludes the UCCJEA from adoption proceedings, Father's argument misses the mark.

¶18 Father next contends that the Adoption Act acknowledges that jurisdiction must be established under the UCCJEA in order to terminate an out-of-state parent's rights. Father raises the point that the Adoption Act requires courts to make a finding that an adoption complies with the ICPC. See id. § 78B-6-107(1). Father then argues that compliance with the ICPC necessarily requires "that the jurisdiction requirements of the UCCJEA be satisfied." We are not persuaded.

¶19 First, the Adoption Act requires only that an adoption comply with the ICPC, not the ICPC and the UCCJEA. Given the legislature's expressed directive that the UCCJEA does not govern adoption proceedings, the UCCJEA and ICPC are distinct and separate titles under the Utah Code, and the ICPC does not expressly reference the UCCJEA, we are hard-pressed to conclude that the legislature intended compliance with the ICPC to mean compliance with the ICPC and the UCCJEA. See Marion Energy, Inc. v. KFJ Ranch P'ship , 2011 UT 50, ¶ 14, 267 P.3d 863 ("The best evidence of the legislature's intent is the plain language of the statute itself." (cleaned up)).

¶20 Second, that the ICPC overlaps with the Adoption Act in some respects and with the UCCJEA in others does not create overlap between the Adoption Act and the UCCJEA-especially given the clear legislative directive that the UCCJEA does not govern adoption proceedings. The ICPC defines placement as "the arrangement for the care of a child in a family free, adoptive, or boarding home, or in a child-caring agency or institution." Utah Code Ann. § 62A-4a-701 art. II(4) (LexisNexis 2018). In other words, adoptions are only one of several "arrangement[s] for the care of a child" contemplated and governed by the ICPC. Accordingly, even if the jurisdictional requirements of the UCCJEA must be met under some scenarios also governed by the ICPC, it does not follow that a party must comply with the UCCJEA to satisfy the ICPC in every instance.

¶21 Father contends that Nevares v. Adoptive Couple , 2016 UT 39, 384 P.3d 213, illustrates that jurisdiction under the UCCJEA must be established prior to jurisdiction under the Adoption Act. In Nevares , our supreme court grappled with jurisdiction under the UCCJEA when a father filed a paternity action in Utah, id. ¶ 2, despite the fact that the child and the adoptive parents resided in Illinois at the time the action was filed, id. ¶ 7. Ultimately, the court held that Utah did not have UCCJEA jurisdiction over the father's paternity action because (1) Utah ceased to be the child's home state when he moved to Illinois, id. ¶¶ 16-17, and (2) although Illinois was not the child's home state (because he had not resided there for more than six months prior to the father's paternity action), jurisdiction in Illinois was proper because the child had "a significant connection with Illinois" vis-à-vis his physical presence in the state and the fact that the adoptive parents had resided in Illinois for more than five years, id. ¶ 21 (cleaned up).

¶22 The facts in Nevares are both instructive and distinguishable. Nevares is instructive because it illustrates that even if the UCCJEA applied in this case, Utah would have jurisdiction. Here, as in Nevares , Child has no "home state." Although Montana was Child's home state from January 30, 2016 (Child's date of birth), to February 10, 2016 (when Child moved to Utah), Montana ceased to be Child's home state when Child moved to Utah with Adoptive Parents. See id. ¶ 16 ("Utah ceased to be [the child's] home state once he moved to Illinois with [the adoptive parents]."). Further, when the Adoption Petition and Motion for Temporary Custody were filed in Utah, Child had not resided in Utah for more than six months; and therefore, Utah was not Child's home state. See id. However, also like the child in Nevares , Child in this case had significant ties to Utah sufficient to confer jurisdiction under the UCCJEA. Specifically, Child was present in Utah, and Adoptive Parents, who were acting as Child's parents, resided in Utah. Thus, Nevares demonstrates that jurisdiction would have been proper under the UCCJEA if it applied to this case. See id. ¶ 21.

¶23 Nevares is also distinguishable and demonstrates that the UCCJEA is not applicable in this case. The UCCJEA governed jurisdiction in Nevares because the father filed the paternity action in Utah prior to the time the adoptive parents filed the petition for adoption in Illinois. Id. ¶ 7. Thus, the provision in Utah's UCCJEA providing that the UCCJEA does not apply to adoption proceedings was not triggered, and therefore, Nevares is distinguishable from this case because it concerned a paternity action, not an adoption.

¶24 Simply put, we disagree with Father's contention that the legislature's directive that the UCCJEA does not govern adoption proceedings should be interpreted to mean that the UCCJEA operates to, in effect, govern adoption proceedings. Instead, we conclude that the district court had jurisdiction to terminate Father's parental rights and finalize the adoption decree under the Adoption Act.

II. Compliance with the ICPC

¶25 Next, Father contends that the district court erred in finalizing the adoption because the ICPC was not complied with as the result of Mother listing Purported Father on the ICPC request form rather than Father. The ICPC "is a uniform law that has been enacted by all fifty states, the District of Columbia, and the U.S. Virgin Islands." Alternative Options & Services for Children v. Chapman , 2004 UT App 488, ¶ 2, 106 P.3d 744. The ICPC requires that "[p]rior to sending, bringing, or causing any child to be sent or brought into a receiving state ... the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state." Utah Code Ann. § 62A-4a-701 art. III(2) (LexisNexis 2018) (listing information that the sending state is required to provide to the receiving state). Compliance with the ICPC can be evidenced by approval of a uniform ICPC-100A

request form. See American Public Human Services Association, ICPC Regulations , Regulation No. 2, (8)(d), https://aphsa.org/AAICPC/AAICPC/ICPC_Regulations.aspx [https://perma.cc/LZ24-GRSF] ("The receiving state ICPC-100A approval expires six months from the date the 100A was signed by receiving state."). Further, the Adoption Act requires that "[i]n any adoption proceeding ... the court's final decree of adoption shall state that the requirements of [the ICPC] have been complied with." Utah Code Ann. § 78B-6-107(1) (LexisNexis 2018).

¶26 As an initial matter, the district court did not state that the ICPC had been complied with. Its findings of fact and conclusions of law for adoption of Child state that the ICPC request form was filed with the court and "[t]he requirements of Title 78B, Chapter 6, Part 1, Utah Adoption Act, have been met." These findings, however, are silent as to compliance with the ICPC. Therefore, remand is necessary for further findings as to whether the ICPC was complied with.

¶27 Father cites In re adoption of T.M.M. , 186 Mont. 460, 608 P.2d 130 (1980), a Montana case, to support his contention that noncompliance with the ICPC must result in vacatur of the adoption decree. In re adoption of T.M.M. is distinguishable from this case, however, because the Montana Supreme Court held that the adoptive parents failed to comply with the ICPC when they moved a child to Montana without ever notifying a Montana ICPC administrator. Id. at 134. Here, the ICPC request form was approved by Montana's ICPC administrator on February 8, 2016 and Utah's ICPC administrator on February 9, 2016-prior to Child moving to Utah with Adoptive Parents. Accordingly, where ICPC administrators were notified and indeed approved the ICPC request form before Child moved to Utah, the facts of In re adoption of T.M.M. simply do not support Father's position. Further, a finding of compliance with the ICPC may be supported by the record in this case.

¶28 We acknowledge that the ICPC form in this case was defective in that it listed Purported Father, rather than Father, as Child's parent. This defect does not, however, deprive Utah courts of jurisdiction. To be sure, under the ICPC, a party could be subject to criminal penalties for knowingly violating the ICPC, see Utah Code Ann. § 62A-4a-711 (LexisNexis 2018), but such a violation does not amount to non-compliance with the ICPC sufficient to divest the district court of jurisdiction or unwind the adoption, id. § 62A-4a-701 art. IV ("[A]ny violation [of the ICPC] shall constitute full and sufficient grounds for the suspension or revocation of any license, permit, or other legal authorization held by the sending agency ...."); see also In re Adoption No. 10087 , 324 Md. 394, 597 A.2d 456, 465 (1991) ("The fact that the ICPC had been violated in this case does not mandate dismissal; rather it indicates the need for a prompt determination of the best interest of this child.").

¶29 Furthermore, any alleged non-compliance with the ICPC did not deprive Father of his rights because he received notice of the adoption proceedings, intervened, and received a trial concerning the termination of his parental rights. If Father had not received notice of, and had not intervened in, the adoption proceedings, the court could have been divested of jurisdiction under the Adoption Act. See Utah Code Ann. § 78B-6-105(4)(a) (LexisNexis 2018). But that is not what happened here. Therefore, any alleged defects in the ICPC request form did not divest the court of jurisdiction. Nevertheless, because the district court did not state that the ICPC requirements were complied with, we set aside the adoption decree and remand for further findings and conclusions on this issue.

CONCLUSION

¶30 The district court possessed subject matter jurisdiction to terminate Father's parental rights and potentially finalize the adoption of Child under the Adoption Act, and because the UCCJEA expressly states that it does not govern adoption proceedings, UCCJEA jurisdiction was not required. Finally, we set aside the adoption decree and remand for additional findings and conclusions on whether the requirements of the ICPC have been complied with.

      The ICPC "is a uniform law that has been enacted by all fifty states, the District of Columbia, and the U.S. Virgin Islands." Alternative Options & Services for Children v. Chapman , 2004 UT App 488, ¶ 2, 106 P.3d 744. "The purpose of the ICPC is to promote cooperation among the states in the interstate placement of children to ensure that the best interests of children are met." Id. Utah's version of the ICPC is codified at Utah Code sections 62A-4a-701 to -711.

      The ICPC requires that an ICPC-100A "Interstate Compact Placement Request" form be approved by an ICPC administrator in both the sending state and receiving state before a prospective adoptive child may be transported across state lines. See American Public Human Services Association, ICPC Regulations , https://aphsa.org/AAICPC/AAICPC/ICPC_Regulations.aspx [https://perma.cc/LZ24-GRSF].

      The UCCJEA is codified at Utah Code sections 78B-13-101 to -318.

      Because the statutory provisions in effect at the relevant time do not differ in any material way from those now in effect, unless otherwise indicated, we cite the current version of the Utah Code.

      Even if analysis under the UCCJEA resulted in "concurrent jurisdiction" by virtue of Father's presence in Montana, Utah would nonetheless have priority jurisdiction because the Adoption Petition, Motion for Temporary Custody, and Temporary Custody Order were filed in Utah prior to Father's divorce action in Montana. See Liska v. Liska , 902 P.2d 644, 647-48 (Utah Ct. App. 1995) (holding that Utah had primary jurisdiction under the UCCJEA because a divorce decree, which determined child custody, originated in Utah prior to the action filed in Colorado).

      Father also contends that the district court should have declined jurisdiction because Mother engaged in unjustifiable conduct by listing Purported Father on the ICPC request form. See Utah Code Ann. § 78B-13-208(1) (LexisNexis 2018) ("[I]f a court of this state has jurisdiction under this chapter because a person invoking the jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction ...."). But because this provision falls under the UCCJEA, we conclude that it does not apply to jurisdiction conferred by the Adoption Act.

      Compliance with the ICPC requires that written notice, containing specific information, be submitted to ICPC administrators, see Utah Code Ann. § 62A-4a-701 art. III(2) (LexisNexis 2018), not necessarily that all the specific information be set forth on the ICPC request form 100A. Adoptive Parents, in their brief, indicate that the complete ICPC packet submitted to Montana's ICPC administrator contained information not included on the ICPC request form, including a cover letter identifying Father as Mother's husband. Accordingly, on remand, it may be necessary to add the complete ICPC packet to the record in order to find that the ICPC was complied with in this case. And given that noncompliance with the ICPC would not divest the court of jurisdiction, in the event that the current record and complete ICPC packet still do not comply with the ICPC, Adoptive Parents can still undertake steps to comply with the ICPC prior to reinstating the adoption decree.

      Section 62A-4a-711 was not enacted until 2017 and therefore does not apply to Mother in this case.


source: Caselaw Access Project

author: CHRISTIANSEN FORSTER, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. William TIRADO, Appellant.
    No. 20140967-CA
    Court of Appeals of Utah.
    Filed July 5, 2019
    Margaret P. Lindsay and Douglas J. Thompson, Attorneys for Appellant
    Sean D. Reyes and Kris C. Leonard, Salt Lake City, Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 William Tirado challenges his conviction on one count of arranging the distribution of a controlled substance, a second-degree felony, on the ground that he received ineffective assistance of counsel because his trial counsel had an actual conflict of interest. We previously remanded this case for the trial court to make additional findings pursuant to rule 23B of the Utah Rules of Appellate Procedure. See State v. Tirado , 2017 UT App 31, ¶ 26, 392 P.3d 926. The trial court did so and concluded that Tirado received ineffective assistance of counsel. Having reviewed the trial court's findings and conclusions, we reverse Tirado's conviction and remand for a new trial.

BACKGROUND

¶2 Tirado was arrested following a sting operation in which a paid informant (Informant) attempted to purchase drugs from Tirado and his cousin (Cousin). Although communication between Informant and Tirado was vague and no drugs exchanged hands, the investigating officer (Officer) arrested Cousin pursuant to outstanding warrants and discovered that he had 2.1 grams of methamphetamine on his person. When asked about the methamphetamine, Cousin allegedly told Officer that "if he needed to sell [methamphetamine], he would sell from that specific amount."

¶3 Officer also took Tirado into custody. Although Officer found no drugs or paraphernalia on Tirado's person, officers ultimately discovered drug paraphernalia at Tirado's residence after obtaining permission from Tirado's fiancée to search it. Tirado was charged with possession of drug paraphernalia, a class A misdemeanor, and arranging the distribution of a controlled substance, a second-degree felony.

¶4 The same appointed counsel (Attorney) represented both Tirado and Cousin. Cousin eventually pleaded guilty to attempted possession of a controlled substance with intent to distribute. Attorney was unable to obtain a plea deal for Tirado, and his case went to trial.

¶5 At trial, Attorney did not call Cousin as a witness or object when Officer testified regarding Cousin's statement about his intent to sell methamphetamine. Tirado was ultimately convicted of both charges and appealed his conviction for arranging the distribution of a controlled substance.

¶6 On appeal, Tirado asserted that he received ineffective assistance of counsel because Attorney's concurrent representation of both Tirado and Cousin constituted "an actual conflict of interest which adversely affected counsel's performance." Specifically, he alleged that the conflict affected Attorney's decision "not to challenge the evidence relating to Cousin and not to call Cousin as a witness." State v. Tirado , 2017 UT App 31, ¶ 16, 392 P.3d 926. Concurrent with his appeal, Tirado moved this court to remand the case pursuant to rule 23B of the Utah Rules of Appellate Procedure to enable the trial court to make factual findings regarding Attorney's alleged conflict. We granted Tirado's motion, directing the trial court to determine "(1) whether Attorney's representation of Cousin resulted in an actual conflict of interest with respect to his representation of Defendant, to which Defendant did not consent, and (2) whether that conflict of interest caused Attorney's representation of Defendant to be constitutionally ineffective." Id. ¶ 26.

¶7 On remand, the trial court held a three-day evidentiary hearing to assess Tirado's ineffective assistance claims. The court determined that Attorney had read the police reports upon being assigned to Tirado's case and was aware that Cousin was arrested at the same time and that Attorney had also been assigned to represent Cousin, whom he had represented in other cases. The trial court further found that Cousin had told Attorney that he was willing to testify on Tirado's behalf. Specifically, Cousin was prepared to testify that he and Tirado "were not working together to sell those drugs, he did not have Tirado contact [Informant] on the phone to arrange a drug deal, and Tirado was not acting" as an agent for Cousin. Cousin also told Attorney that he would deny that he ever admitted to police that he intended to sell the drugs found in his pocket. The court found that such statements would have been inconsistent with the admission Cousin made in his plea agreement that he knowingly and intentionally possessed and attempted to distribute methamphetamine.

¶8 Based on the information submitted at the evidentiary hearing, the trial court concluded that Attorney had labored under an actual conflict of interest because "[s]imultaneously representing both Tirado and [Cousin] created a substantial risk that [Attorney's] representation of Tirado would be materially limited by his responsibilities to [Cousin]." Moreover, because Tirado's case rested on his assertion that he did not intend to distribute drugs, Cousin's plea, which Attorney arranged and in which Cousin admitted his intent to distribute, had the potential to undermine Tirado's defense. The court further concluded that this conflict affected Attorney's ability to adequately represent Tirado because Attorney could not call Cousin as a witness in Tirado's case without violating his duties to Cousin, due to the possibility that Cousin's testimony would open Cousin up to perjury charges, and because Attorney could not put himself in a position where he would be forced to cross-examine Cousin, as " '[a]n attorney who cross-examines former clients inherently encounters divided loyalties.' " (Quoting United States v. Voigt , 89 F.3d 1050, 1078 (3d Cir. 1996).)

¶9 The court also assessed Tirado's assertion that Attorney performed ineffectively by failing to object to the hearsay statement in Officer's testimony. It concluded that the State's theory at trial was bolstered by what Cousin allegedly told Officer about his intent concerning the drugs-that "if he needed to sell it, he would sell from that specific amount." The court found that the failure to object to this testimony was not supported by any reasonable trial strategy and that Tirado was prejudiced by the statement because the State relied on it as evidence of Tirado's intent to distribute, since Tirado was allegedly acting as the go-between for Cousin and Informant.

¶10 After the trial court issued its findings and conclusions, the State challenged the court's determination that Tirado received ineffective assistance, asserting that the findings did not support a conclusion that Attorney's conflict adversely affected his performance and that the trial court exceeded the scope of its mandate on remand by reaching conclusions concerning Attorney's failure to object to Officer's hearsay statements. Tirado, on the other hand, requests that we accept the trial court's findings and conclusions and reverse his conviction.

ISSUE AND STANDARD OF REVIEW

¶11 Tirado's ineffective assistance of counsel claim turns on his assertion that Attorney was laboring under an actual conflict of interest that adversely affected his performance. "In ruling on an ineffective assistance claim following a Rule 23B hearing, we defer to the trial court's findings of fact, but review its legal conclusions for correctness." State v. Bredehoft , 966 P.2d 285, 289 (Utah Ct. App. 1998) (quotation simplified).

ANALYSIS

¶12 The State asserts that the trial court erred in concluding that Tirado received ineffective assistance of counsel, because the evidence did not support a determination that the conflict "actually affected the adequacy of [Attorney's] representation." See Mickens v. Taylor , 535 U.S. 162, 168, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (quotation simplified); see also Cuyler v. Sullivan , 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) ("In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance."). The State maintains that an actual conflict of interest cannot be established unless there was "no tactical reason other than the alleged conflict for counsel's decision."

¶13 But this is not the standard for evaluating the adverse effect of a conflict of interest in the Sixth Amendment context. When evaluating a claim that a conflict of interest caused an attorney not to do something, we consider "(1) whether the arguments or actions allegedly omitted would likely have been made by other counsel, and (2) whether there was a tactical reason (other than the asserted conflict) for the omission." State v. Webb , 790 P.2d 65, 76 (Utah Ct. App. 1990) ; see also State v. Lovell , 1999 UT 40, ¶ 24, 984 P.2d 382. This is different from the general standard for evaluating counsel's performance under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a defendant to persuade us that there was "no conceivable tactical basis" for counsel's actions. See State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (emphasis omitted) (citing Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ). In the case of a conflict of interest based on an omission, even if there was a conceivable tactical basis for counsel's decision, we also assess "whether the arguments or actions allegedly omitted would likely have been made by other counsel." Webb , 790 P.2d at 76.

¶14 The State asserts that Attorney's decision not to call Cousin as a witness for Tirado was sound trial strategy because there were a number of credibility concerns with Cousin's testimony, Cousin would have been subject to impeachment with his criminal record, and Cousin would have appeared at trial in prison clothes. Attorney claims he ultimately believed it would hurt Tirado to be associated with Cousin. However, Tirado was already associated with Cousin and his criminal record even without Cousin's in-court testimony, as the State's case rested on the assertion that Tirado was acting as a conduit between Cousin and Informant. The trial court on remand found that Cousin's testimony would have been helpful to Tirado, and we are not convinced that further associating Tirado and Cousin, when the State had already done so, would have undermined Tirado's defense.

¶15 Even if Attorney's effort to distance Tirado from Cousin could be considered a sound trial strategy based upon the circumstances of this case, we think it likely that other counsel, unhampered by a conflict of interest, would have approached the case differently. Because Attorney could not ethically call Cousin to the stand without compromising his duties to Cousin, he was inherently more likely than a conflict-free attorney to adopt a strategy that did not require him to call Cousin as a witness. Another attorney, without conflicting representation, would have been more likely to determine that because Tirado was already associated with Cousin, the additional association the jury might make if Cousin testified in Tirado's defense was outweighed by the potential exculpatory value of Cousin's testimony.

¶16 Likewise, we are concerned that Attorney's failure to object to Officer's statement was influenced by the conflict in representation. The statement was inadmissible hearsay, offered "to prove the truth of the matter asserted," see Utah R. Evid. 801(c)(2) ; see also id. R. 802, and Tirado could have derived no conceivable benefit from its admission. Other counsel likely "would have approached the case differently," and we see no reasonable explanation for Attorney's failure to object to the admission of hearsay other than the conflict. See Lovell , 1999 UT 40, ¶ 24, 984 P.2d 382.

¶17 The State asserts that any deficiency in failing to object to Officer's statement was harmless because Cousin's plea, which was also admitted, contained the evidence of Cousin's admission. However, in reviewing whether a defendant has received ineffective assistance as a result of a conflict of interest arising from concurrent representation, "we presume prejudice if the defendant demonstrates that an actual conflict of interest adversely affected his lawyer's performance." State v. Brandley , 972 P.2d 78, 85 (Utah Ct. App. 1998) (quotation simplified).

¶18 Because we are convinced that another attorney, unhampered by concurrent representation of Tirado and Cousin, was likely to have called Cousin to the stand and likely would have objected to Officer's hearsay statement, we conclude that Attorney was laboring under an actual conflict of interest and that Tirado received ineffective assistance of counsel as a result.

CONCLUSION

¶19 Having reviewed the trial court's findings of fact and conclusions of law after the rule 23B remand, we agree that Attorney's concurrent representation of Tirado and Cousin constituted an actual conflict of interest that adversely affected the adequacy of Attorney's representation of Tirado. Absent conflicting representation, it is likely that another attorney would have called Cousin to testify in Tirado's defense and would have objected to the admission of Officer's hearsay statement. Tirado therefore received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. Accordingly, we reverse Tirado's conviction of arranging the distribution of a controlled substance and remand for a new trial.

      Additional facts were articulated in our previous opinion. See State v. Tirado , 2017 UT App 31, ¶¶ 2-8, 392 P.3d 926.

      Tirado asserts that further review of the trial court's decision is unnecessary because we should simply "accept the findings and conclusions issued by the district court." Tirado cites the language of our mandate to the trial court, which directed it to determine "(1) whether Attorney's representation of Cousin resulted in an actual conflict of interest with respect to his representation of Defendant, to which Defendant did not consent, and (2) whether that conflict of interest caused Attorney's representation of Defendant to be constitutionally ineffective ." See Tirado , 2017 UT App 31, ¶ 26, 392 P.3d 926 (emphasis added). Tirado asserts that by issuing the order, this court essentially delegated its decision regarding ineffective assistance to the trial court and can now review the trial court's determination only if Tirado seeks further review. But this is not the case. The purpose of rule 23B remand is to permit the trial court to enter "findings of fact, necessary for the appellate court's determination of a claim of ineffective assistance of counsel." Utah R. App. P. 23B(a) (emphasis added). Frequently, this court may request that a 23B court go one step further and make legal conclusions, or a 23B court may do so on its own initiative. See, e.g. , State v. Taylor , 947 P.2d 681, 684 (Utah 1997) (identifying the issue on rule 23B remand as whether counsel had "provided ineffective assistance of counsel and in doing so prejudiced the outcome"); State v. Bair , 2012 UT App 106, ¶ 8, 275 P.3d 1050 (remanding for a determination of "whether trial counsel was ineffective" with respect to four separate issues (quotation simplified)); State v. Millard , 2010 UT App 355, ¶ 11, 246 P.3d 151 (reciting the rule 23B court's legal conclusions that counsel did not perform deficiently and that the defendant did not suffer prejudice). Given the fact-dependent nature of the ineffective assistance inquiry and the deference an appellate court is required to give to a trial court's factual determinations, it is natural and helpful for the trial court to apply its findings of fact to reach legal conclusions regarding ineffective assistance on rule 23B remand. But the purpose of a remand pursuant to rule 23B-to supplement the record with findings sufficient to permit appellate review, see Utah R. App. P. 23B(a) -dictates that the ultimate resolution of the matter of counsel's ineffectiveness, which originated on appeal, must be accomplished by the appellate court that ordered the remand in the first place.

      The State argues that the trial court exceeded the scope of its mandate by reaching the question of whether counsel was ineffective for failing to object to Officer's statement. But this issue was raised on appeal in the context of Tirado's claim that Attorney labored under an actual conflict of interest. Tirado asserted on appeal that the reason Attorney failed to object to the statement on hearsay or confrontation grounds was "because either of those objections would have required the State to call [Cousin] as a witness and would have required trial counsel to cross-examine and impeach his own client." See United States v. Voigt , 89 F.3d 1050, 1078 (3d Cir. 1996) ("An attorney who cross-examines former clients inherently encounters divided loyalties." (quotation simplified)); Castillo v. Estelle , 504 F.2d 1243, 1245 (5th Cir. 1974). Thus, the trial court's mandate included assessing whether Attorney's conflict of interest adversely affected his decision not to object to Officer's trial statement and whether Tirado received ineffective assistance of counsel as a result. On rule 23B remand, the trial court framed its conclusion a bit differently-it determined that the failure to object constituted ineffective assistance regardless of whether that decision was the result of Attorney's conflict of interest. But the trial court's framing of the issue-at least in the context presented here-did not take the issue outside the scope of the court's mandate.

      We are also troubled by Attorney's negotiation of a plea agreement for Cousin that ultimately affected Tirado in a negative way. The trial court found that Attorney "did not consider how [Cousin's] plea to a distribution offense in this case might affect Tirado's case" and "did not discuss [Cousin's] plea with Tirado." Police found no drugs on Tirado's person and found only drug paraphernalia at his home, so the State's ability to prove that Tirado was involved in the distribution of drugs turned on its theory that Tirado was acting as the go-between for Cousin and Informant. Without Cousin's alleged statement to Officer regarding his own intent and Cousin's conviction for possession with intent to distribute, the State's only significant evidence that Tirado was involved in a drug transaction was his vague phone call with Informant, in which there was no actual discussion of drugs. While separate representation likely would not have precluded introduction of Cousin's plea agreement at Tirado's trial, it is concerning that Tirado's counsel was involved in negotiating that primary piece of evidence against him.


text:
    AGTC INC. and Alpine Coal Co. Inc., Appellants, v. COBON ENERGY LLC, Appellee.
    No. 20170992-CA
    Court of Appeals of Utah.
    Filed July 18, 2019
    E. Scott Savage and Stephen R. Waldron, Salt Lake City, Attorneys for Appellants
    Wm. Kelly Nash, Douglas B. Thayer, Kimberly N. Baum, Lehi, and Troy L. Booher, Salt Lake City, Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 AGTC Inc. and Alpine Coal Co. Inc. (collectively, A&A) appeal the district court's grant of summary judgment to CoBon Energy LLC (CoBon) on their contract and unjust enrichment claims. We reverse and remand for further proceedings.

BACKGROUND

¶2 To pursue certain tax credits related to the manufacture of synthetic fuels from coal (synfuel), Covol Technologies Inc. (Covol) and Intermountain Consumer Professional Engineers (ICPE) partnered to form CoBon. ICPE's principals included Steven Nash, Robert Nash, and Anton Tonc, each licensed professional engineers. Using technology developed by Covol, with assistance from ICPE, CoBon planned to develop facilities that would take small and unmarketable pieces of coal known as coal fines-a waste product of coal manufacturing-and bind them together to form marketable coal briquettes.

¶3 After establishing a synfuel production facility, CoBon envisioned selling that facility to a buyer who would make and sell synfuel briquettes. This production would entitle the buyer to claim the associated tax credits. As part of the facility transaction, CoBon would receive a share of the tax credits from the buyer in addition to certain royalty and proprietary technology fees. Before any of this could happen, however, CoBon needed to identify sources of coal fines, find suitable locations for facilities, and negotiate the purchase of coal fines and sale of coal briquettes. But neither Covol nor ICPE had coal industry experience or contacts.

¶4 In November 1995, CoBon contacted A&A and requested its assistance in presenting projects to coal companies and getting facility projects under contract. Mark Rodak, a consultant and the principal of Alpine Coal, had significant mining engineering education and training as well as experience in various roles in the mining industry. Richard Visovsky, a consultant and the principal of AGTC, also had significant mining engineering training and education and had experience in synfuel development. Neither of these individuals was a licensed professional engineer.

¶5 In March 1996, A&A entered into a consulting agreement with Covol-the company licensing the coal fines bonding technology. Four months later, Covol terminated the consulting agreement with A&A and renegotiated its relationship with CoBon. Under the new arrangement, Covol agreed to license its coal fines bonding technology to CoBon who, using that license, could pursue development of its own synfuel facilities. Additionally, ICPE was removed as a principal of CoBon and replaced by Steven Nash and Robert Nash. In anticipation of receiving its license from Covol, CoBon entered into its own agreement with A&A, first orally and then in a formal written agreement (the Consulting Agreement).

¶6 Over several years, A&A provided consulting and assistance to CoBon in its endeavor to establish synfuel facilities. A&A communicated with coal companies and vendors on CoBon's behalf. A&A brought in several potential project hosts and worked toward the goal of securing synfuel development projects. Ultimately, A&A devoted approximately 6,000 hours consulting for CoBon, which resulted in the completion of several synfuel projects generating approximately $69 million in tax credit payments and other revenue to CoBon.

¶7 CoBon began paying A&A for its assistance under the Consulting Agreement in 2001 but stopped making payments the following year. In response to A&A's demand to continue payments, CoBon filed a lawsuit in a Utah district court, alleging, among other things, that A&A breached the Consulting Agreement. In response, A&A asserted several counterclaims, including claims for breach of contract and unjust enrichment against CoBon. In 2009, CoBon amended its reply to A&A's counterclaims to argue that A&A was barred from asserting its contract claims by Utah's "non-recovery rule," which bars unlicensed professionals from seeking enforcement of contracts for professional services where the licensing requirements have been enacted with the purpose of protecting the public. See George v. Oren Ltd. & Assocs. , 672 P.2d 732, 735 (Utah 1983).

¶8 In 2016, CoBon moved for partial summary judgment on A&A's unjust enrichment claim. CoBon asserted that because both parties had previously admitted that the Consulting Agreement was a binding and enforceable contract, A&A could not pursue its unjust enrichment claim. See Ashby v. Ashby , 2010 UT 7, ¶ 14, 227 P.3d 246 ("[A] prerequisite for recovery on an unjust enrichment theory is the absence of an enforceable contract governing the rights and obligations of the parties relating to the conduct at issue."). A&A opposed the motion on the ground that several of CoBon's "contentions and defenses," including its contention that A&A was barred from recovering under the Consulting Agreement by the non-recovery rule, "go to the validity, enforceability and scope of the Consulting Agreement." Because CoBon's defenses had not been abandoned or rejected, A&A argued that dismissing its equitable claims "would be premature and prejudicial." The district court disagreed and dismissed A&A's unjust enrichment claim on the ground that the parties had previously acknowledged the validity of the contract.

¶9 One month before a scheduled trial on the remaining issues, CoBon and A&A each moved for summary judgment regarding CoBon's assertion that the Consulting Agreement was an unenforceable engineering services contract under the non-recovery rule. After briefing and argument on the motions, the court first concluded that the Consulting Agreement was ambiguous regarding "whether the parties intended A&A to provide engineering services." As a result of that determination, the court considered extrinsic evidence of the parties' intent, ultimately concluding that a number of A&A's tasks agreed to in the Consulting Agreement "required the application of engineering training and experience uniquely possessed by A&A." It therefore concluded that the Consulting Agreement was a contract for engineering services and that A&A was barred from recovering under the contract because Rodak and Visovsky were not licensed professional engineers. Accordingly, the district court granted CoBon's motion for summary judgment and denied A&A's. A&A now appeals.

ISSUES AND STANDARD OF REVIEW

¶10 A&A asserts that the district court erred in granting summary judgment in favor of CoBon on A&A's contract and unjust enrichment claims. With respect to the contract claims, A&A asserts that the district court erred in determining that the Consulting Agreement was ambiguous, that it was intended to be an engineering services contract, and that A&A could not enforce the contract due to its lack of licensing. With respect to the unjust enrichment claim, A&A argues that dismissal was premature because the court had not yet disposed of CoBon's various claims regarding the enforceability of the contract. Summary judgment is appropriate "if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). "We review the trial court's grant of summary judgment for correctness, considering only whether the trial court correctly applied the law and correctly concluded that no disputed issues of material fact existed." In re Evan O. Koller Revocable Living Trust , 2018 UT App 26, ¶ 8, 414 P.3d 1099 (quotation simplified).

ANALYSIS

I. Contract Claims

¶11 A&A first argues that the district court erred in interpreting the "non-recovery rule" to preclude A&A from enforcing the Consulting Agreement. Assuming, without deciding, that the Consulting Agreement is a contract for engineering services, we agree with A&A that CoBon cannot invoke the non-recovery rule under the circumstances of this case.

¶12 The Utah Code requires that anyone working as a professional engineer first obtain a license. Utah Code Ann. § 58-22-301(1) (LexisNexis 2016) ("A license is required to engage in the practice of professional engineering ...."). The general purpose of legislation requiring professional engineers to be licensed "is to provide for the qualification, registration and licensing of persons who hold themselves out to the public as having qualifications in specialized areas which affect the public health, safety or welfare." Cannon v. Gardner , 611 P.2d 1207, 1210 (Utah 1980). For this reason, the non-recovery rule generally precludes an unlicensed engineer from enforcing a contract for professional engineering services. See George v. Oren Ltd. & Assocs. , 672 P.2d 732, 735 (Utah 1983) ("If the purpose of licensing is to protect the public, then the general rule in this State is that the party who does not obtain a license, but is required to do so, cannot obtain relief to enforce the terms of his contract-including payment thereunder ...." (quotation simplified)); accord Pacific Chromalox Div. v. Irey , 787 P.2d 1319, 1325 (Utah Ct. App. 1990).

¶13 Nevertheless, the non-recovery rule is "not applied unconditionally, but only under circumstances in which the party from whom the contractor seeks to recover is in the class the legislature intended to protect." Pacific Chromalox , 787 P.2d at 1326 (quotation simplified); see also George , 672 P.2d at 735. "Laws intended for protecting the public are not intended to become an unwarranted shield for the avoidance of a just obligation and should not allow a [party] to take the benefit of an unlicensed plaintiff's labor and refuse to pay for it." Pacific Chromalox , 787 P.2d at 1326 (quotation simplified). Therefore, "unless it is shown that the party from whom the unlicensed contractor seeks to recover is within the class of persons whom the licensing statute is designed to protect, the rule will not be applied." George , 672 P.2d at 735. "Thus, the pivotal issue in this case is whether [CoBon] occupied a protected status." See id.

¶14 One class of individuals that has been explicitly prohibited from benefiting from the non-recovery rule is those "licensed in the same trade or profession as the unlicensed practitioner." Pacific Chromalox , 787 P.2d at 1326 ("A litigant is not a member of the class the legislature intended to protect if the required protection is in fact afforded by another means, such as the litigant being licensed in the same trade or profession as the unlicensed practitioner." (quotation simplified)); see also Fillmore Products, Inc. v. Western States Paving, Inc. , 561 P.2d 687, 690 (Utah 1977). Such individuals are not in the same class as the "lay public" that the non-recovery rule is intended to protect, because they are "presumed to possess expertise" in the relevant field that enables them to protect themselves. See Pacific Chromalox , 787 P.2d at 1326 ; see also Fillmore , 561 P.2d at 690 (explaining that a licensed contractor has "expertise in the contracting business and is therefore informed of the necessity for licensing therein and the purpose behind licensing, viz., the protection of the public").

¶15 At the time the parties entered into the Consulting Agreement, Steven and Robert Nash were the principals of CoBon. Both Nashes were licensed professional engineers. Along with ICPE, including Anton Tonc, who was also a licensed professional engineer, the Nashes assisted Covol in developing its proprietary coal fines bonding technology. Moreover, the Consulting Agreement obligated A&A to "perform services on behalf of CoBon in accordance with the express directives and authorizations of, and subject to the approval of, CoBon." In other words, A&A's efforts were subject to the supervision and approval of the Nashes-two licensed professional engineers. Cf. Fillmore , 561 P.2d at 690 (declining to apply the non-recovery rule where "the entire sewer project was under the supervision of a licensed project engineer, ... all of the work had to meet the specifications and requirements of the general contract and ... all of the work had to be approved and accepted by the project engineer before any payment was made"). Led by licensed engineers, CoBon possessed inherent protection against any possible fraud or incompetence resulting from unlicensed consultants performing the work of licensed professionals.

¶16 CoBon attempts to distinguish its situation from the general rule that licensed individuals cannot benefit from the non-recovery rule by pointing out that CoBon's principals were licensed electrical and mechanical engineers rather than licensed mining engineers and asserts that CoBon was therefore not engaged in the "same trade or profession" as A&A. See Pacific Chromalox , 787 P.2d at 1326. But in light of the reasoning for the exception to the non-recovery rule, we are convinced that this phrase should be interpreted broadly such that professional engineers of any type may be classified within the same trade or profession. The overarching consideration is not whether the party from whom the unlicensed contractor seeks to recover has the exact same technical knowledge and expertise as that expected of the contractor, but whether that party "is within the class of persons whom the licensing statute is designed to protect," see George , 672 P.2d at 735, that is, the "lay public," see Pacific Chromalox , 787 P.2d at 1326. Given the "harshness of declaring contracts of non-licensees void or unenforceable," see Fillmore , 561 P.2d at 689, a licensed professional engineer's awareness "of the necessity for licensing ... and the purpose behind licensing," see id. at 690, is sufficient to take the licensed professional engineer out of "the class of persons whom the licensing statute is designed to protect," see George , 672 P.2d at 735.

¶17 It is clear from CoBon's business plan for the projects that it was aware that Rodak and Visovsky were not professional engineers. Under the heading "Management Team," the business plan states, "The key CoBon management and consulting team consists of four individuals. Their backgrounds consist of marketing, corporate development financial, engineering and design, construction and construction management and operation and maintenance experience. CoBon believes this team provides a solid management background and furthers the probability of the Project's success." The business plan then goes on to outline the respective qualifications and responsibilities of Rodak, Visovsky, and the Nashes. Steven and Robert Nash are identified as professional engineers by the shorthand "P.E." following their names and are identified as being licensed in eight and fifteen states, respectively. On the other hand, the document is silent as to any licensing acquired by Rodak and Visovsky, instead listing their experience and education. It is apparent from this document that CoBon was aware that Rodak and Visovsky were not professional engineers, yet CoBon was nevertheless confident in their ability to fulfill the objectives of their employment. Cf. Kennoy v. Graves , 300 S.W.2d 568, 570 (Ky. 1957) (refusing to apply the non-recovery rule where a licensed engineer "was in a position to know, and did know, the qualifications of" the unlicensed engineer). Although clearly understanding the relevance of licensing, CoBon elected to enlist A&A's consulting services in the absence of such licensing. Under these circumstances, "[n]o public policy would be served by allowing [CoBon] to invoke" the non-recovery rule. See Loader v. Scott Constr. Corp. , 681 P.2d 1227, 1229 (Utah 1984). Rather, it would permit CoBon "to take the benefit of an unlicensed plaintiff's labor and refuse to pay for it." Pacific Chromalox , 787 P.2d at 1326 (quotation simplified).

¶18 Because CoBon does not fall in the class of individuals permitted to invoke the non-recovery rule against an unlicensed engineer, A&A is not barred from recovering under the contract. The district court therefore erred in granting summary judgment to CoBon on this basis.

II. Unjust Enrichment Claim

¶19 A&A also argues that the district court erred in granting summary judgment to CoBon on A&A's unjust enrichment claim. Unjust enrichment "is designed to provide an equitable remedy where one does not exist at law." American Towers Owners Ass'n v. CCI Mech., Inc. , 930 P.2d 1182, 1193 (Utah 1996), abrogated on other grounds by Davencourt at Pilgrims Landing Homeowners Ass'n v. Davencourt at Pilgrims Landing, LC , 2009 UT 65, 221 P.3d 234. Therefore, "if a legal remedy is available, such as breach of an express contract, the law will not imply the equitable remedy of unjust enrichment." Id.

¶20 In opposing CoBon's motion for summary judgment on the unjust enrichment claim, A&A pointed to a number of arguments asserted by CoBon that A&A claimed "go to the validity, enforceability and scope of the Consulting Agreement." CoBon contested A&A's assertion that these arguments concerned the enforceability of the contract, representing that CoBon's arguments instead focused on questions of contract interpretation, breach of contract, and the parties' relative duties under the contract.

¶21 In ruling on the motion, the district court did not examine whether the remaining claims actually concerned the enforceability of the contract. Nevertheless, the court concluded that the Consulting Agreement is a valid contract as a matter of law because both parties had previously acknowledged "that the contract had been negotiated and signed by both [parties]." Based on this conclusion, the court determined that A&A could not maintain a cause of action for unjust enrichment.

¶22 "Because a claim should be dismissed only if it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim, a district court should not dismiss alternative equitable claims if the existence or applicability of a contract remain in dispute." Northgate Village Dev., LC v. Orem City , 2014 UT App 86, ¶ 50, 325 P.3d 123 (quotation simplified). The fact that the parties acknowledged and agreed that a contract existed between them does not necessarily lead to the conclusion that it was an enforceable contract that effectively governed their rights and obligations with respect to the subject matter of the case. See Selvig v. Blockbuster Enters., LC , 2011 UT 39, ¶ 30, 266 P.3d 691 ("Where an express contract covering the subject matter of the litigation exists, recovery for unjust enrichment is not available." (quotation simplified)); Ashby v. Ashby , 2010 UT 7, ¶ 14, 227 P.3d 246 ("[A] prerequisite for recovery on an unjust enrichment theory is the absence of an enforceable contract governing the rights and obligations of the parties relating to the conduct at issue.").

¶23 Because the district court made no determination regarding whether A&A's remaining claims and defenses dealt with the enforceability of the Consulting Agreement, we are concerned that its ruling left the door open to such claims at trial while foreclosing A&A's ability to pursue an equitable remedy if the court were ultimately to determine that the Consulting Agreement is unenforceable. Thus, the district court prematurely dismissed A&A's unjust enrichment claim while questions regarding the validity of the contract remained unresolved.

CONCLUSION

¶24 Because CoBon does not fall into the class of individuals the non-recovery rule was intended to protect, the rule does not preclude A&A from pursuing its contract claims, regardless of whether the contract is construed as a contract for professional engineering services. Further, because the district court made no determination regarding whether claims and defenses at issue implicated the enforceability of the contract, its grant of summary judgment to CoBon on A&A's unjust enrichment claim was premature. Accordingly, we reverse the district court's summary judgment rulings and remand for further proceedings.

      "In reviewing a district court's grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party and recite the facts accordingly." Far West Bank v. Robertson , 2017 UT App 213, ¶ 2 n.4, 406 P.3d 1134 (quotation simplified).

      This process is typically referred to as "coal fines agglomeration."

      As discussed infra ¶¶ 19-23, the district court expressed no opinion regarding whether a party barred from enforcing a contract under the non-recovery rule could maintain a cause of action under an equitable theory of unjust enrichment. While we ultimately need not reach this question, we are inclined to agree with CoBon that such a result would be inconsistent with the public policy behind the non-recovery rule. Further, a determination that a party is barred from enforcing a contract is different from a determination that the contract itself is unenforceable.

      Because we agree with A&A that its lack of licensing did not affect its ability to enforce the contract under the facts of this case and reverse the district court's summary judgment ruling on that basis, we do not address A&A's other arguments regarding the contract claim.

      The "practice of engineering" in Utah encompasses a broad array of activity, including any
      service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to the service or creative work as consultation, investigation, evaluation, planning, design, and design coordination of engineering works and systems, planning the use of land and water, facility programming, performing engineering surveys and studies, and the review of construction for the purpose of monitoring compliance with drawings and specifications; any of which embraces these services or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects, and industrial or consumer products or equipment of a mechanical, electrical, hydraulic, pneumatic, or thermal nature, and including other professional services as may be necessary to the planning, progress, and completion of any engineering services.
      Utah Code Ann. § 58-22-102(9)(a) (LexisNexis Supp. 2018).

      This rule was previously codified with respect to both contractors, see Utah Code Ann. § 58-55-604 (LexisNexis 2016), and engineers, see id. § 58-22-20 (Allen Smith 1955); id. § 58-22-11 (Michie 1986) (provision renumbered). However, while the non-recovery rule remains codified with respect to contractors, the Utah Legislature repealed the engineering provision in 1992 when it enacted a new Professional Engineers and Land Surveyors Licensing Act. See Professional Eng'rs & Land Surveyors Licensing Act, ch. 183, § 11, 1992 Utah Laws 697, 701. The non-recovery rule with respect to engineers is now entirely a creation of common law. In their briefs, neither party contests the existence of a common-law non-recovery rule for engineers, and neither party takes the position that the 1992 repeal of the engineering statute affected the viability of the rule.

      For example, A&A asserted that one of CoBon's defenses "could result in the Court deciding there was no meeting of the minds as to the contract's essential terms," rendering the contract unenforceable. See Lebrecht v. Deep Blue Pools & Spas Inc. , 2016 UT App 110, ¶ 13, 374 P.3d 1064 ("Under the principles of basic contract law, a contract is not formed unless there is a meeting of the minds." (quotation simplified)). If A&A is correct in its characterization of CoBon's defense, and if the court ultimately found that there was no meeting of the minds, then the court's summary judgment ruling would leave A&A without either a legal or an equitable remedy.


author: HARRIS, Judge:

text:
    Thomas WILLIAMSON and Jennifer Williamson, Appellants, v. Anne FARRELL, Dave Farrell, and Laura Black, Appellees.
    No. 20180471-CA
    Court of Appeals of Utah.
    Filed July 18, 2019
    Opinion
   HARRIS, Judge:

¶1 Having been publicly accused by his siblings of abusing and stealing from their elderly mother, Thomas Williamson and his wife Jennifer (collectively, Plaintiffs) filed suit seeking a judicial declaration that they had not committed elder abuse or violated any fiduciary duties toward Thomas's mother. The district court dismissed Plaintiffs' claim, on the ground that litigation between the parties was ongoing elsewhere and that their dispute could be more efficiently handled there. Plaintiffs appeal, and we reverse.

BACKGROUND

¶2 Ruth Williamson (Mother) passed away in November 2016 at the age of ninety-one. At the time of her death, Mother had been residing with Thomas and Jennifer in Utah County, Utah. Prior to her death, Mother had accumulated significant assets, and had executed multiple estate planning documents naming her six children (including Thomas) as beneficiaries of her estate.

¶3 Shortly after Mother's death, Thomas filed a petition in Utah's Fourth District Court (the Probate Action) seeking to formally probate Mother's estate and have himself appointed as personal representative. Two of Thomas's sisters-Anne Farrell (Anne) and Laura Black (Laura), both of whom reside in California-appeared in the Probate Action and filed an objection to Thomas's petition, alleging, among other things, that Thomas had abused Mother during the time Mother resided with him, and that he had engaged in various acts of self-dealing with regard to estate-related matters. In their objection, they made no mention of Jennifer. Their allegations of elder abuse were initially vague, but Anne and Laura stated in their objection that they were "compiling further evidence that [Thomas] engaged in elder abuse" and that they were "addressing that issue with California counsel toward the end of pursuing a formal action in that regard." A few weeks later, Anne's husband Dave Farrell (Dave) filed an affidavit in the Probate Action; the district court in this case described that affidavit as containing "numerous" and "specific" elder abuse allegations against Thomas, but noted that Dave's affidavit mentioned Jennifer only "in passing in a single paragraph" as Thomas's "wife."

¶4 A few weeks later, on April 10, 2017, while the Probate Action was pending, Anne and Laura-along with other complainants-filed a lawsuit in California (the California Action) against Thomas, Jennifer, and eleven other defendants. The fifty-four-page complaint describes a litany of grievances involving the entire Williamson family, only a part of which involves allegations that Thomas and Jennifer engaged in elder abuse against Mother. The complaint contains specific allegations against Thomas, accusing him of stealing money from Mother and mistreating her while she was in his care, but contains only passing references to Jennifer, accusing her of acting "jointly" with Thomas in some of the actions complained of. Jennifer asked the California court to dismiss her from the California Action for lack of personal jurisdiction, and the California court agreed, dismissing all claims against Jennifer, without prejudice to refiling elsewhere. The California Action remains pending against Thomas; that court has not yet determined whether Thomas breached any duties toward Mother or her estate, or whether he abused her.

¶5 Given the pendency of the California Action, Anne and Laura asked Utah's Fourth District Court, acting as the probate court, to dismiss or stay the Probate Action pending the outcome of the California Action. The probate court refused to dismiss the Probate Action, but did enter an order staying proceedings in the Probate Action until the relevant issues in the California Action were adjudicated. It reasoned that "having these matters adjudicated in California would avoid inconsistent results and best serve judicial efficiency and the rights of the parties." The probate court's determination to stay the Probate Action is not at issue in this appeal and, as far as the present record reveals, the Probate Action remains stayed, and no determination has yet been made in that court regarding any abuse or breach of duty on the part of Thomas or Jennifer.

¶6 On April 5, 2017, five days before the California Action was initiated, Plaintiffs filed the instant lawsuit, a declaratory judgment action seeking a judicial declaration that they "did not commit elder abuse" against Mother or "violate any statutory or common law duties owed" to her. Plaintiffs named as defendants Anne, Laura, and Dave (collectively, Defendants). A few months later, Defendants filed a motion asking the district court to dismiss or stay the case, in light of the fact that the issues at the center of this declaratory judgment action were being litigated in the California Action.

¶7 After an initial round of briefing and oral argument, the district court scheduled a telephonic hearing for the purpose of announcing a ruling, and during that telephonic hearing the court announced that, after oral argument, it had located a case- McRae & DeLand v. Feltch , 669 P.2d 404 (Utah 1983) -not cited by the parties in their initial briefing, upon which it wanted supplemental briefing. After the parties each filed supplemental briefs addressing McRae , the district court issued a written ruling granting Defendants' motion for judgment on the pleadings, and therefore did not make a decision regarding Defendants' motion to stay proceedings.

ISSUE AND STANDARD OF REVIEW

¶8 Plaintiffs appeal the district court's order granting Defendants' motion for judgment on the pleadings and dismissing their declaratory judgment action. We review the grant of a motion for judgment on the pleadings for correctness, and will affirm "only if, as a matter of law, the nonmoving party could not prevail under the facts alleged." MBNA Am. Bank, NA v. Williams , 2006 UT App 432, ¶ 2, 147 P.3d 536 (quotation simplified). For purposes of our review, we "take[ ] the factual allegations of the nonmoving party as true, considering such facts and all reasonable inferences drawn therefrom in a light most favorable to the nonmoving party." Id. (quotation simplified).

ANALYSIS

¶9 Courts generally have the duty and obligation to adjudicate all of the cases that come before them. See Harvey v. Ute Indian Tribe of the Uintah & Ouray Reservation , 2017 UT 75, ¶ 116, 416 P.3d 401 (Lee, J., concurring in part and dissenting in part) ("When the parties file suit in a court that has both subject-matter jurisdiction over the dispute and personal jurisdiction over the parties, our courts have a general duty to exercise that jurisdiction."); cf. Colorado River Water Conservation Dist. v. United States , 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (stating that federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them"); Shopko Stores, Inc. v. Dutson , 911 P.2d 980, 981 (Utah 1995) (requiring small claims courts to "entertain claims for relief meeting the explicit jurisdictional limits" established by statute). As a rule, courts generally do not have the luxury of opting not to, at least in some manner, decide the cases they are assigned. The questions presented in this case are whether an exception to this general rule exists for declaratory judgment cases in Utah-that is, whether Utah judges have the option, under certain circumstances, to refuse to decide certain properly-filed declaratory judgment cases-and, if so, whether the district court properly exercised that option here. After reviewing the record in this case and applicable Utah Supreme Court case law, we answer the first question in the affirmative, but the second question in the negative, and therefore reverse.

¶10 For centuries, declaratory relief has been one type of remedy that courts have considered themselves empowered to provide. See, e.g. , Robert T. Sherwin, Shoot First, Litigate Later: Declaratory Judgment Actions, Procedural Fencing, and Itchy Trigger Fingers , 70 Okla. L. Rev. 793, 799-802 (2018) (discussing the rise of declaratory relief in American law); 26 C.J.S. Declaratory Judgments §§ 1 - 2 (2019) (same). Under current Utah law, judicial power to issue declaratory judgments has been codified in Utah's Declaratory Judgment Act (the Act), with our legislature specifically providing that Utah district courts have "the power to issue declaratory judgments determining rights, status, and other legal relations" within their jurisdiction, and that a lawsuit "may not be open to objection on the ground that a declaratory judgment or decree is prayed for." Utah Code Ann. § 78B-6-401(1) (LexisNexis 2018). This judicial power to issue declaratory judgments is broad, and is "not constitutionally restricted to 'cases' and 'controversies.' " Miller v. Weaver , 2003 UT 12, ¶ 15, 66 P.3d 592.

¶11 Although the Act authorizes courts to issue declaratory judgments, it does not contain provisions setting forth the specific elements of a proper declaratory judgment claim; those elements remain governed by common-law judicial decisions. Indeed, although declaratory judgment actions are statutory in nature, "[t]he courts are not a forum for hearing academic contentions or rendering advisory opinions," Baird v. State , 574 P.2d 713, 715 (Utah 1978), and therefore all actions "must meet the requisite justiciable and jurisdictional requirements of any action," Boyle v. National Union Fire Ins. Co. , 866 P.2d 595, 598 (Utah Ct. App. 1993). For these reasons, even after passage of the Act, our supreme court has continued to "require four threshold elements to be satisfied before" courts may "proceed with a declaratory judgment action." Miller , 2003 UT 12, ¶ 15, 66 P.3d 592. Those four elements are: (1) there must be "a justiciable controversy" presented for resolution; (2) the parties to the action must have interests that are adverse; (3) the party seeking relief must have "a legally protectible interest"; and (4)

the issues presented must be "ripe for judicial determination." Id.

¶12 In this case, the district court determined that all four of these "threshold elements" were met, and Defendants do not challenge that determination on appeal. Therefore, we presume for purposes of our analysis that all four threshold requirements are indeed met here.

¶13 Despite determining that all four of the threshold requirements were satisfied, the district court nevertheless dismissed Plaintiffs' lawsuit, and offered both statutory and common-law reasons for doing so. First, it relied on section 404 of the Act, which provides that a district court "may refuse to render or enter a declaratory judgment" if that judgment "would not terminate the uncertainty or controversy giving rise to the proceeding." See Utah Code Ann. § 78B-6-404. Second, the court relied upon common-law authority, including McRae & DeLand v. Feltch , 669 P.2d 404 (Utah 1983), in dismissing the case on efficiency grounds.

¶14 The statutory avenue for dismissal does not apply here. Unlike the federal declaratory judgment statute, which bestows upon federal judges broad discretion to refuse to enter declaratory judgments, see 28 U.S.C. § 2201(a) (2012) (stating generally that federal courts "may declare the rights and other legal relations of any interested party seeking such declaration" (emphasis added)), the Act bestows such discretion on Utah judges in only one narrow situation: when entry of the sought-after declaration "would not terminate the uncertainty or controversy giving rise to the proceeding," see Utah Code Ann. § 78B-6-404 (stating that a "court may refuse" to enter a declaratory judgment only where entry of such a judgment would not terminate the controversy (emphasis added)). The term "proceeding" is used here in the singular, indicating that it refers to the specific declaratory judgment action at hand, and not to any larger web of disputes between the parties; indeed, that is how the term "proceeding" is used throughout the Act. See id. §§ 78B-6-401, -403, -407, -411 (using the term "proceeding" to refer to one declaratory judgment action). Thus, the Act permits Utah judges to refrain from deciding declaratory judgment actions only where entry of the sought-after declaration would not end the controversy giving rise to the specific lawsuit pending before them.

¶15 In this case, the district court took too broad a view of its statutory authority to abdicate. It believed that the section 404 exception applied if entry of the sought-after declaration would not terminate all the underlying disputes encircling these feuding parties, specifically grounding its ruling on a conclusion that "a judgment in this case would not conclude the litigation in the other cases." While the court's factual supposition is likely correct, it was posing the wrong question. A Utah district court is not statutorily empowered to decline to adjudicate a declaratory judgment action merely because the sought-after judgment would fail to establish global peace between the parties. A Utah district judge is statutorily empowered, under section 404, to dismiss an otherwise-properly-pled declaratory judgment action only if the requested declaration would fail to completely resolve the controversy giving rise to the specific lawsuit pending in that judge's court. See, e.g. , Miller , 2003 UT 12, ¶ 27, 66 P.3d 592 (concluding that a declaration about whether the defendant, a school teacher, had violated certain statutes and regulations would not "terminate the uncertainty or controversy between" the parties-and, indeed, would "proliferate rather than resolve controversy"-because the court lacked the "authority to fire" the defendant or "order the school board" or the "State Board of Education" to do so, and regardless of any declaration the court might issue, the defendant "would remain a teacher, students would continue to take her classes, and the school board would remain free to refuse action on [the] plaintiffs' complaints." (quotation simplified)).

¶16 In this situation, the requested declaratory judgment would indeed completely resolve the controversy giving rise to the specific "proceeding" pending before the court. That controversy concerns whether Plaintiffs abused or breached any duties toward Mother; in their complaint, Plaintiffs sought a declaration that they did not abuse or breach any duties toward Mother. A declaration to that effect may not have resolved every dispute within the Williamson family, or even all of the matters at issue in the California Action and the Probate Action, but it certainly would have effectively disposed of the controversy underlying the "proceeding" pending before the court. Accordingly, there was no basis, pursuant to section 404, for the district court to decline to hear the case.

¶17 Nevertheless, district courts retain common-law authority to dismiss declaratory judgment actions, even apart from their authority set out in section 404 of the Act. Despite the Act's codification, common-law pronouncements still play a role in governing a district court's handling of declaratory judgment actions. See, e.g. , id. ¶ 15 (setting forth four "threshold elements" for declaratory judgment actions, which elements do not appear anywhere in the Act). And our supreme court has, on at least two occasions, taken note of a district court's common-law authority to dismiss declaratory judgment actions. In McRae , the court stated as follows:

Generally, jurisdiction of a declaratory judgment action will not be entertained if there is pending at the time of the commencement of the declaratory action another action or proceeding to which the same persons are parties, in which are involved and may be adjudicated the identical issues that are involved in the declaratory action.

McRae & DeLand v. Feltch , 669 P.2d 404, 405 (Utah 1983) (quotation simplified). The court noted that the rationale behind this rule "is to prohibit piecemeal litigation ... and to prevent the needless proliferation of litigation." Id. In the years since McRae , our supreme court has reaffirmed that opinion's holding and reasoning. See, e.g. , Hercules, Inc. v. Utah State Tax Comm'n , 1999 UT 12, ¶ 5, 974 P.2d 286. Thus, in cases where the same matters at issue in the declaratory judgment action are being litigated between the same parties in another action that was pending at the time the declaratory action was filed, Utah district courts retain discretion-grounded in the common law-to dismiss declaratory judgment actions in the name of efficiency and judicial economy.

¶18 This case, however, does not present a proper situation for exercise of that common-law discretion, because two of the factual prerequisites necessary for exercise of that discretion are absent. The parties to the declaratory judgment action are-currently-not the same as the parties to either the California Action or the Probate Action. Jennifer has never been a party to the Probate Action, nor has she filed any papers in connection with that action. In the California Action, Jennifer was originally sued and accused of conspiring with her husband to abuse and steal from Mother. The California court eventually determined, however, that Jennifer was not subject to personal jurisdiction in California, and thus could not constitutionally be haled into court there. The claims against her were dismissed, but without prejudice to refiling in a proper forum. Thus, the claims against Jennifer remain live, in the sense that they could be refiled against her at any time in another location, and Jennifer-a Utah resident-chose to avail herself of Utah's Declaratory Judgment Act to file a lawsuit in the forum of her choice to preemptively adjudicate those claims. We discern nothing improper about Jennifer filing a declaratory judgment action under these circumstances.

¶19 The district court sidestepped this issue on the strength of its conclusions that "the allegations against [Jennifer] are virtually indistinguishable from and inextricably intertwined with those made against her husband," and that "a finding in either the [Probate Action] or the [California Action] that [Thomas] had not engaged in acts of elder abuse would necessarily include his wife as well." There is undoubtedly a close factual relationship between the allegations against Jennifer and at least some of the allegations against Thomas. But while a decision in the Probate Action or the California Action in favor of Thomas would (as a practical matter) likely clear Jennifer too, the opposite is not true: a decision in one of the other cases against Thomas would not necessarily serve to either implicate or clear Jennifer.

¶20 But these issues obscure the more significant point in this case: Jennifer cannot be constitutionally compelled to litigate these issues in California, and she is entitled to have them litigated in a different forum. She has chosen Utah as the forum in which she would like those issues adjudicated, and her lawsuit is properly pled under the Act. The section 404 exception does not apply, because a grant of her requested relief would dispose of the controversy giving rise to the proceeding, and the common-law exception does not apply either, because there is currently no other pending case in which both (a) Jennifer is a party and (b) the relevant issues are being litigated. Jennifer is entitled to continue with her properly-pled lawsuit for declaratory relief regarding the live claims looming over her. The district court's decision to close the courthouse door to Jennifer under these circumstances was improper.

¶21 But even if Thomas were the only plaintiff in the declaratory judgment action, outright dismissal in deference to the California Action would still be improper, because another McRae prerequisite-that the California Action be filed first-is not satisfied here either. In McRae , our supreme court stated that a pending declaratory judgment action could be dismissed only when "there is pending at the time of the commencement of the declaratory action" a separate action involving the same parties and the same issues. McRae , 669 P.2d at 405 (quotation simplified). The California Action was not pending at the time of the commencement of the declaratory judgment action; it was filed five days later. The district court did not find the five-day difference dispositive, and declined to employ "a rote application of a 'first-to-file' " calculation. But a first-to-file metric is the touchstone set forth by McRae , and we are of course bound to follow our supreme court's pronouncements.

CONCLUSION

¶22 At some level, we sympathize with the district court's frustration that Thomas and his siblings seem to be using more than their share of judicial resources in at least two states. But this case does not present one of the rare instances in which a Utah court is empowered to entirely refuse to adjudicate a case pending before it. The district court's action dismissing Plaintiffs' case was improper and unfair, especially to Jennifer, and not supported by either the Act or common-law authority.

¶23 We therefore reverse the district court's order dismissing Plaintiffs' declaratory judgment action, and remand the matter for further proceedings. On remand, the district court may, upon motion, consider other options, including whether it should stay Plaintiffs' action-either partially or entirely-pending the outcome of the actions pending elsewhere.

ORME, Judge (concurring specially):

¶24 I concur in most of the analysis in the court's opinion but part ways with my colleagues when it comes to the appropriate recourse on remand. In the lead opinion's Conclusion, the implication is that any number of resolutions by the district court might be in order. I respectfully beg to differ.

¶25 The crux of the complaint for declaratory relief, which my colleagues agree was properly filed in Utah, is that Plaintiffs, Utah residents, did not commit elder abuse under the laws of Utah in connection with acts that occurred wholly within Utah while Mother resided in Utah. Not to put too fine a point on it, but in no sense is this California business, although California is appropriately concerned with issues concerning property located there. This is Utah business, pure and simple.

¶26 I am hard-pressed to see that any resolution on remand would be appropriate but this one: The Utah district court should proceed to adjudicate this action properly brought and properly pending before it. Duplication of judicial effort is of course to be avoided, and to the extent that resolution of the issues pending in the subsequently-brought California Action turns on whether Plaintiffs abused Mother, it is the California court that should defer to Utah's resolution of that issue-not the other way around.

      As is our practice when parties share a last name or are part of the same family, we sometimes refer to them by their first names, with no disrespect intended by the apparent informality.

      We reference the district court's description of Dave's affidavit rather than the affidavit itself because, although the district court described the affidavit in its ruling, we have been unable to locate it in the record submitted to us on appeal.

      Because Defendants had already answered the complaint by the time they filed their motion, the motion was styled as a motion for judgment on the pleadings, filed pursuant to rule 12(c) of the Utah Rules of Civil Procedure, rather than a motion to dismiss for failure to state a claim, filed pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure.

      Because the language of the federal declaratory judgment act affords federal judges wider discretion to decline to enter declaratory judgments than does the language of the Act, federal case law establishing the parameters of federal courts' discretion under the federal declaratory judgment act is of limited usefulness here. See, e.g. , Republic Ins. Co. v. Sinclair Oil Corp. , 791 F. Supp. 278, 280 (D. Utah 1992) (analyzing the purposes of declaratory actions under the federal statute, and using several factors in determining "whether to allow a declaratory judgment action to proceed").