author: WILKINS, Justice.

text:
    2001 UT 23
    WWC HOLDING CO., INC., Petitioner, v. PUBLIC SERVICE COMMISSION OF UTAH, Stephen F. Mecham, Clark D. Jones and Constance B. White, Commissioners of the Public Service Commission of Utah, Respondents.
    No. 20000835.
    Supreme Court of Utah.
    March 5, 2002.

      Matthew F. McNulty, III, Salt Lake City, and Mark J. Ayotte, Philip R. Schenkenberg, Saint Paul, MN, for petitioner.
    Sander J. Mooy, Gregory B. Monson, Joni Dickson Seko, Jerry D. Fenn, Salt Lake City, for respondents.
   WILKINS, Justice.

11 WWC Holding Co., Inc. ("WWC") petitions us to review the Public Service Commission's order denying it rural Eligible Telecommunications Carrier status and requiring it to price its universal service offerings at or below the Affordable Base Rates. We affirm.

BACKGROUND

12 Because the party seeking review of an agency's order following a formal administrative proceeding has the burden to prove that the agency's factual findings are not supported by substantial evidence, we state the facts and all legitimate inferences to be drawn from them in the light most favorable to the agency's findings. Utah Code Ann. § 63-46b-16(4)(g)(1997); Hales Sand & Gravel v. Audit Div., 842 P.2d 887, 888 (Utah 1992).

T3 Promoting universal service-that is, ensuring that all Americans have access to affordable phone service-has long been a fundamental goal of telecommunications regulation. - See, eg., 47 U.S.C. § 151 (2001)(creating the Federal. Communications Commission and stating that its purpose is to make available affordable communications services to all citizens). In furtherance of this goal, federal and state subsidies ("universal service support") are available to encourage providers of telecommunications services ("common carriers") to provide service to rural areas and low-income consumers. See 47 U.S.C. § 214(e)(2001); Utah Code Ann. § 54-8b-15 (2000). These subsidized telecommunications services are known as universal service offerings. Only Eligible Telecommunications Carriers ("ETCs") are eligible to receive universal service support, 47 U.S.C. § 214(e)(1), Utah Admin. Code R746-360-6(A), and state commissions have been given the authority to designate common carriers as ETCs. 47 U.S.C. § 214(0)@). Although there are multiple requirements for ETC designation and receipt of universal service support funds, only two are at issue in this case: (1) the federal requirement that a state commission must find that designating an additional ETC in a rural area is in the public interest, 47 U.S.C. § 214(0)(@2), and (2) the state requirement that to be eligible for state universal service support, a telecommunications corporation may not charge retail rates in excess of the Affordable Base Rates for basic telecommunications service as determined by the Utah Public Service Commission ("PSC"). Utah RT746-360-6(B).

14 WWC is a common carrier that provides telecommunications services using commercial mobile radio, or wireless, technology. WWC filed a petition with the PSC seeking designation as an ETC in Utah and eligibility to receive state and federal universal service support. In its petition WWC represented that it met the requirements for becoming an ETC and advocated that designation of it as an ETC in rural areas would serve the public interest. The PSC held a hearing on WWC's petition at which WWC presented one witness in favor of its petition. Six witnesses, testifying on behalf of two state organizations, the Division of Public Utilities and the Committee of Consumer Services, and two private organizations, the Utah Rural Tele-com Association and U.S. West, testified against the petition.

15 After these formal proceedings, the PSC issued an order ("Order") designating WWC as an ETC in non-rural areas served by U.S. West. WWC's eligibility to receive state universal service support for service in these areas was contingent, among other things, on WWC charging no more than the Affordable Base Rates, defined by the Order as the rates previously set by the PSC for U.S. West for the areas at issue, for its universal service offerings. The PSC found that it would not be in the public interest to designate WWC as an additional ETC in rural areas served by incumbent carriers. It found that designation of WWC as an ETC in these areas would increase demands on the state universal service fund without any offsetting benefits and consequently declined to designate WWC as an ETC in these areas. We have jurisdiction to review the PSC's final order pursuant to section 78-2-2(8)(e)(1) of the Utah Code. This review followed.

ISSUES PRESENTED AND STANDARDS OF REVIEW

T6 WWC disputes the PSC's finding that granting it ETC status in the applied-for rural areas would not be in the public interest. WWC also disputes the PSC's requirement that in order to receive state universal service support for the areas in which it was designated an ETC, it must price its universal service offering at or below the Affordable Base Rates.

17 Review of administrative decisions is governed by the Utah Administrative Procedures Act ("UAPA"), Utah Code Ann. §§ 63-46b-0.5 to -23 (1997 & Supp.2001). Administrative decisions based on formal administrative proceedings are reviewed under section 63-46b-16, For a reviewing court to grant relief under UAPA, it must determine, on the basis of the agency's record, that the party has been "substantially prejudiced" by the agency action. Utah Code Ann. § 63-46b-16(4)(1997). A party has been substantially prejudiced if "the alleged error was not harmless." - Mountain Fuel Supply Co. v. Pub. Serv. Comm'n, 861 P.2d 414, 423 (Utah 1993). In making this determination, the court will apply different standards of review depending on whether the issue is one of fact, law, or legal discretion. See § 63-46b-16(4). "

18 We uphold an agency's factual findings if supported by substantial evidence. § 63-46b-16(4)(g). - As we explained in Harken Southwest Corp. v. Bd. of Oil, Gas and Mining: .

Substantial evidence is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion. This standard does not require or specify a quantity of evidence but requires only such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Nonetheless, in evaluating the sufficiency of the evidence, we will not sustain a decision which ignores uncontradicted, competent, credible evidence to the contrary.

920 P.2d 1176, 1180 (Utah 1996) (citations and internal quotation marks omitted). When challenging factual findings, the appellant has the burden of "marshaling all of the evidence supporting the findings and then, despite the supporting facts, showing that the findings are not supported by substantial evidence." Kennecott Corp. v. Utah State Tax Comm'n, 858 P.2d 1381, 1385 (Utah 1998). Issues of legal discretion may be challenged only by showing that "the agency action is ... an abuse of the discretion delegated to the agency by statute." § 68-46b-16(L)G); see also Morton Int'l, Inc. v. Auditing Div., 814 P2d 581, 587-89 (Utah 1991)(construing § 63-46b-16(h)@). - "[Aln agency has abused its discretion when the agency's action, viewed in the context of the language and purpose of the governing statute, is unreasonable." - Morton Int'l, 814 P.2d at 587. Finally, absent a grant of discretion, legal issues are reviewed under a correction-of-error standard. § 63-46b~16(4)(d);, see also Morton Int'l, 814 P.2d at 588-89. This standard is especially appropriate where the agency possesses no special expertise which would place it in a better position than the court to decide the issue. See Morton Int'l, 814 P.2d at 586-87.

ANALYSIS

I. PUBLIC INTEREST ANALYSIS

11 9 We first address WWC's public interest arguments. As discussed above, the PSC is required by 47 U.S.C. § 214(e)(2) to make a public interest finding prior to designating an additional ETC in a rural area. After a formal administrative proceeding, the PSC found that designation of WWC as an ETC in rural areas already served would not be in the public interest. As explained in the Order, this finding appears to be based on two sub-findings: (1) that designation of an additional ETC in rural areas already served would increase burdens on the state universal service fund ("State Fund"), and (2) that this increased burden would not be offset by the corresponding public benefits of lower cost service or service in areas which are currently unserved.

11 10 WWC argues that the PSC should not have considered the effect of ETC designation on the State Fund as a matter of law. WWC also argues that it presented evidence to the PSC showing that designating it as an ETC would result in the public interest benefits of increased competition, choice, mobility, and a larger local calling area, that the PSC erred by "ignoring" these benefits, and that, had these benefits been considered, the public interest test would have been tipped in WWC's favor.

§11 Because the challenge to the Order's public interest findings deals with several different issues, we apply two different standards of review. What, exactly, constitutes "public interest" for purposes of ETC designation is a question, the resolution of which has been granted to the discretion of the PSC. 47 U.S.C. § 214(e)(2). Because the PSC is granted authority and discretion by statute to determine what constitutes public interest, we review the question of whether or not the PSC could legally consider particular factors in determining public interest under the abuse of discretion standard. See id.; Utah Code Ann. § 63-46b-16(b)(G)(1997). How the PSC weighs these factors to arrive at its ultimate conclusion is an issue we also review for abuse of discretion. Id. The question of whether public interest factors are met is a question of fact, limiting our review to determining whether or not there is substantial evidence in the record to support the PSC's findings. § 63-46b-16(4)(g).

A. Consideration of Impact on State Fund

1 12 WWC argues that the PSC should not have considered impact on the State Fund in making the public interest determination. It contends that by considering impact on the State Fund, the PSC's Order holds that the State Fund is per se incompatible with competition and that the Order, therefore, violates federal and state law.

113 WWC's argument mischaracterizes the PSC's findings. The Order does find that designating an additional ETC in rural areas-or, as WWC expresses it, allowing competition in rural areas-may increase burdens on the State Fund. The Order does not, however, say that because of this the PSC will never allow competition in rural areas by refusing to designate additional rural ETCs. Rather, the Order says that in the absence of corresponding public benefits, increasing the burdens on the State Fund is not in the public interest. Moreover, the Order leaves open the possibility that if incumbent ETCs can reduce costs sufficiently such that even with additional common carriers receiving rural ETC designation, no additional burdens are placed on the State Fund, additional ETC designations could be in the public interest, regardless of whether corresponding public benefits accompanied the ETC designation. Thus, the PSC's Order is not against competition per se, but, rather, merely recognizes that in some instances competition in rural areas by multiple ETCs receiving state universal service support may not be in the public interest. This, in the opinion of the PSC, is one such instance.

114 The statutory language that "the State commission shall find that the designation is in the public interest," 47 U.S.C. § 2l4(e)(2), gives the PSC authority and thereby discretion to determine what is in the public interest. Aside from alleging a congressional preference for promoting competition, an issue which we need not address today, WWC has not cited any authority which explicitly limits the factors the PSC can consider in determining what is, or is not, in the public interest. Having been given the discretion to determine what is, or is not, in the public interest for ETC designation purposes, we see no indication that the PSC has abused its discretion in relying on impact on the State Fund as a public interest factor. We can find an abuse of discretion only if "the [PSC's] action, viewed in the context of the language and purpose of the governing statute, [47 U.S.C. § 214(e)(@2),] is unreasonable." - Morton Int'l, Inc. v. Auditing Div., 814 P.2d 581, 587 (Utah 1991). As discussed above, WWC's sole argument is that the context and purpose of 47 U.S.C. § 214(e)(2) mandates competition. However, as the Order is not against competition per se, WWC's argument fails. WWC has not presented any other grounds to justify a finding that consideration of the impact on the State Fund is unreasonable given the context and purpose of 47 U.S.C. § 214(e)(2). We therefore hold that the PSC did not abuse its discretion in determining that impact on the State Fund was a proper public interest factor.

115 Having concluded that the PSC could legitimately consider impact on the State Fund in determining public interest, the question then becomes whether the PSC's factual determination that the State Fund would be negatively impacted is supported by substantial evidence in the record. Utah Code Ann. § 63-46b-16(4)(g) (1997). WWC has not met its burden of "marshaling all of the evidence supporting the findings" of the PSC and "showing that the findings are not supported by substantial evidence." Kennecott Corp. v. Utah State Tax Comm'n, 858 P.2d 1381, 1385 (Utah 1998). Instead, WWC has simply pointed to testimony in the record favorable to its position without dealing with the testimony unfavorable to its position upon which the PSC based its findings.

T 16 The record contains expert testimony stating that there was a strong probability that designating a second ETC in many areas would reduce revenues to all ETCs. This, in turn, could result in either (1) an increase in the total costs of providing universal service support, or (2) a reduction in funding to ETCs, resulting in rate increases, decreases in infrastructure investment and/or service. The likely effect of either scenario would be to increase financial demands on the State Fund. This testimony in the record is sufficiently substantial to support the PSC's finding on this issue. See Harken Southwest Corp. v. Bd. of Oil, Gas and Mining, 920 P.2d 1176, 1180 (Utah 1996).

B. Absence of Public Benefits

117 As discussed above, the fact that the State Fund could be negatively impacted by designation of WWC as an additional ETC was not fatal to WWC's application. The PSC declined to grant WWC rural ETC status based on the combination of the possibility that the State Fund might be negatively impacted along with its finding that this likely detriment would not be offset by public benefits. The PSC's Order specifically identified two public benefits-lower cost service and new service to currently unserved areas-which, had they been present, presumably would have been enough to overcome the State Fund detriment. Because WWC does not contest the consideration of these public interest factors, we need not address whether the PSC abused its discretion in considering these factors. We therefore focus solely on whether the PSC's factual findings that designation would not provide these benefits are supported by substantial evidence in the record. See Utah Code Ann. § 63-46b-16(4)(g)(1997); Harken, 920 P.2d at 1180.

The record contains testimony supporting the conclusion that designation would not provide public benefits, specifically, that it would not result in lower prices or service to currently unserved areas. In regard to lower prices, the record contains testimony that competition in rural areas with little customer growth could result in higher average costs for rural telephone companies. These higher costs could result in higher prices for consumers. Additionally, WWC did not provide the PSC with information on the specific rates it intended to charge customers for its services. Although WWC said rates would be comparable to competitors', it did not know what rural telephone companies presently charge and admitted it had not determined what its rates would be. Ultimately, based on this testimony, the PSC found that WWC's prices "may well be higher than the incumbent prices." This testimony is sufficiently substantial to support the PSC's finding, see Harken, 920 P.2d at 1180, and we defer to the PSC's expertise in this area in reaching this conclusion.

19 With regard to serving currently un-served areas, it appears that there was significant ambiguity about the precise geographic area WWC would service. The record shows that WWC acknowledged it could have "gaps" in service (areas where cellular phone service is unavailable), that it may need to enhance signal strength in areas, and that it would not know of signal strength until it visited customers. WWC provided a map showing its signal coverage area which it believed to be sufficient for the PSC to conclude that it would serve all customers in the service area. However, WWC did not provide any technical information about cell sites, capacities, transmitter power, or tower locations, information which would have enabled the PSC to verify its service area claims, even though a wireless telecommunications company such as WWC would typically have such information. WWC admitted it had a tower location map but did not provide it to the PSC. WWC testified that ensuring adequate signal strength for customers is an ongoing process requiring analysis of tower locations, but did not provide any specific information about the results of such analysis in Utah. WWC also provided no specific information about the possible costs of ensuring that all customers had an adequate signal. The record also contains testimony that there are gaps in WWC's coverage and anecdotal accounts of gaps in coverage. This testimony is sufficiently substantial to support the PSC's finding that currently un-served areas would not be served by WWC. See Harken, 920 P.2d at 1180.

[ 20 Thus, the PSC's conclusion that designation of WWC as a rural ETC would be detrimental to the State Fund and would not result in lower prices or new service to currently unserved areas is supported by substantial evidence in the record, as required by section 63-46b-16(4)(g) of the Utah Code. We therefore affirm these findings in the PSC's Order.

[21 WWC further argues that the PSC's Order did not recognize other undisputed benefits, and that had these benefits been considered, the PSC's public interest determination would have been tipped in WWC's favor. Specifically, WWC argues that it proved that designating it as an additional rural ETC would result in the public benefits of increased competition, choice, mobility, and a larger local calling area. Regardless of the possible existence of these benefits, however, WWC has not cited any authority which requires the PSC to consider these specific factors in determining public interest. As discussed above, the PSC has been given statutory authority to determine which factors to consider in determining public interest, and how those factors should be weighed to arrive at the ultimate conclusion. The PSC "is in a better position than the courts to give effect to the regulatory objective to be achieved," Morton Int'l, Inc. v. Auditing Div., 814 P.2d 581, 586 (Utah 1991), that is, to determine what is, or is not, in the public interest with regard to rural ETC designation. As the PSC has been given this authority, and possesses " 'expertise gleaned from its accumulated practical, first-hand experience with the subject matter,/ " id. at 587 (quoting Benneilt v. Indus. Comm'n, 726 P.2d 427, 429 (Utah 1986)), we see no reason to require the PSC to consider specific factors, or to require that factors be given specific weights.

122 Furthermore, it appears that the PSC gave considerable weight to its finding that designation of WWC as an ETC would not result in service to currently unserved areas. The Order designates this benefit as "the primary potential benefit," suggesting that it was the principal consideration in concluding that designating WWC as an ETC would not bring offsetting public benefits. Given this, we see no reason to think that the result of the Order would have been any different, even if the PSC had been required to consider the public interest factors which WWC argues it ignored Thus, WWC has not been "substantially prejudiced" by the PSC's Order as required by section 68-46b-16(4).

123 The PSC appeared to be hindered throughout its decision-making process by the general problem that it had to determine public benefit by relying on WWC's assertions and promises rather than on objective documentation. For example, WWC did not provide specific documentation detailing service and equipment it intended to offer. WWC also did not provide service area coverage details, signal-strength models, projected costs for service, or sufficient documentation to enable the PSC to determine whether WWC would provide an adequate level of service at an affordable rate. It merely gave assurances that it would provide adequate service.

[24 After a careful review of the record, we conclude that the PSC did not abuse its discretion in determining that impact on the State Fund was a public interest factor and that the PSC's findings of fact on this point are supported by substantial evidence in the record as detailed above. We further conclude that the PSC did not abuse its discretion in focusing only on certain public interest factors. Because we find that the PSC did not abuse its discretion in reaching its ultimate conclusion, we affirm the findings in the Order that it is not in the public interest to designate WWC as an additional ETC in rural areas currently served by incumbent ETCOs.

II. AFFORDABLE BASE RATES

125 We next address WWC's argument that the PSC should not have required WWC to price its universal service offering at or below the Affordable Base Rates in order to receive state universal service funds. Rule 746-360-6(B) of the Utah Administrative Code requires that a carrier receiving state universal service support "may not charge retail rates in excess of the [PSC] determined Affordable Base Rates for basic telecommunications service...." The PSC's Order noted that WWC must meet this requirement to receive state universal service support funds and stated that it presumed that the Affordable Base Rates were represented by the rates previously set by the PSC for U.S. West in the relevant areas. WWC argues that this price cap requirement should be reversed because (1) Utah RT74G6-360-6(B) is preempted by federal statute, and (2) the PSC should have established Affordable Base Rates through a rulemaking proceeding, rather than simply presuming that the U.S. West rates represented the Affordable Base Rates.

126 Whether a state administrative rule is preempted by a federal statute is a question of law which we review under a correction of error standard. See Utah Code Ann. § 63-46b-16(4)(d)(1997). - Whether a state administrative agency engaged in an unlawful decision-making process is also a question of law we review under the same standard. See §§ 63-46b-16(4)(e), -16(4)(d).

A. -No Federal Preemption

127 47 U.S.C. § 832(c)@B)(A) states, in relevant part, that "no State or local government shall have any authority to regulate the entry of or rates charged by any commercial mobile service...." WWC argues that this language preempts rule 746-360-6(B) of the Utah Administrative Code and that the PSC cannot, therefore, require WWC to price its universal service offering at or below specific rates. The PSC counters that § 3832(c)(1)(A) provides that commercial mobile services are to be treated as common carriers and that, therefore, § 382(c)(8)(A) prohibits state entry or rate regulation only when a commercial mobile service is acting as a common carrier. The PSC asserts that ETC status is separate from common carrier status and that, therefore, § 882(c)(8)(A) is not applicable when a common carrier is acting as an ETC. We conclude that Utah R74A6-360-6(B) does not regulate entry or rates as contemplated by 47 U.S.C. § 332(e)(8)(A).

128 The term "regulate" is not defined by the statute. " 'This silence compels us to "start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used." ' " See Indus. Ass'n v. Bd. of Governors of the Fed. Reserve Sys., 468 U.S. 187, 149, 104 S.Ct. 2979, 82 L.Ed.2d 107 (1984) (quoting Russello v. United States, 464 U.S. 16, 21, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (quoting Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962))). The ordinary meaning of the verb "regulate" in the context of administrative regulation embodies the concept of unilateral restriction or control. Seq, eg., Black's Low Dictionary 1286 (6th ed. 1990)("Regulate: To fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws."); Black's - Law - Dictionary - 1289 - (Tth ed.1999)("regulation: The act or process of controlling by rule or restriction.") Based on our understanding of the term "regulate," Utah RT746-360-6(B) does not regulate WWC's rates.

129 While Utah RT746-860-6(B) certainly has some effect on universal service offering rates, it does not unilaterally restrict or control the rates a commercial mobile service can charge for its services-the very essence of rate regulation. By requiring that an ETC receiving state universal service support price its universal service offering at or below the Affordable Base Rates, Utah RT4G-360-6(B) seeks to ensure that state funds are used to subsidize high-cost or low-income telecommunications service, rather than provide a windfall for the ETC receiving the support. Utah RT46-3860-6(B) concerns eligibility for state financial assistance and safeguarding state funds, not regulating rates. To achieve this end, Utah RT746-360-6(B) is narrowly applicable only to telecommunications carriers who voluntarily seek ETC status and who voluntarily receive state funding. The rule is not a factor in determining ETC status or in eligibility for federal universal service support. Only if an ETC wishes to receive state universal service funds must it comply with Utah R746-360-6(B). An ETC becomes subject to the rate requirement only after it, chooses to seek state funding. Because Utah RT74G6-360-6(B) becomes applicable only under discrete, voluntary cireumstances, the element of restriction or control is absent. It is therefore not rate regulation.

1 30 In this case the PSC is not regulating WWC's rates. WWC is free to set its rates without any state interference. Even after its voluntary decision to seek ETC status, WWC is still free to set its rates without state intervention. Only in the narrow instance of WWC's voluntary decision to receive state universal service support must it set the price of its universal service offering at or below a specified level. And, even while receiving state universal support, WWC is free to set the rates for other services without state intervention. Thus, Utah R746-360-6(B) is a condition imposed on the receipt of state funds rather than outright rate regulation. Because this condition does not constitute rate regulation, we hold that $ 832(c)(8)(A) does not preempt Utah RT746-360-6(B). The PSC may require WWC to price its universal service offering at or below the Affordable Base Rates under Utah R746-860-6(B) in order to be eligible for state financial subsidies.

B. Establishment of Affordable Base Rates

131 WWC argues that the PSC erred in presuming that the rates previously set by the PSC for the U.S. West telephone exchanges in the Order represented the Affordable Base Rates, and that the PSC should have established this rate through a formal rulemaking proceeding under the Utah Administrative Rulemaking Act ("UARA"), see-tions 63-46a-1 to -16 of the Utah Code. The allegation that the PSC "has engaged in an unlawful procedure or decision making process" is sufficient to allow us to review the agency's action. Utah Code Ann. § 63-46b-16(4)(e)(1997). However, because the UARA does not apply in this instance, we affirm the PSC's Order to the extent it equates the Affordable Base Rates with the rates previously set by the PSC for U.S. West.

132 WWC has not convinced us that the PSC engaged in rulemaking when it ordered that the Affordable Base Rates were represented by previously set rates. The UARA dictates when rulemaking is required and exempts "rulings by an agency in adjudicative proceedings." § 638-46a-2(17)(e)(vii)(Supp.2001). Such rulings are excluded from the UARA's definition of "rule" and are therefore not subject to the UARA. While WWC has argued that this portion of the PSC's Order is similar to a rule, it has not addressed the statutory exemption which appears to be directly applicable here. This exemption for ageney rulings comes with the proviso that "[elach agency shall enact rules incorporating the principles of law not already in its rules that are established by final adjudicative decisions within 120 days after the decision is announced in its cases." § 63-462-3(6)(Supp.2001); see also § 63-46a2-2(17)(c)(vii)(Supp.2001). We need not address the issue of the PSC's compliance with section 63-46a-3(6), however, as nothing in the record, the parties' briefs, or at oral argument addresses or mentions compliance with section 63-46a-3(6). See, eg., Springville Citizens for a Better Cmty. v. City of Springville, 1999 UT 25, ¶ 20 n. 2, 979 P.2d 332 ("We do not address these issues because plaintiffs have failed to brief them adequately"). Thus, because the PSC's Order is a "ruling by an agency in [an] adjudicative proceeding 1," § 63-46a2-2(17)(e)(vii)(Supp.2001), this portion of the Order is not a rule and, therefore, need not comply with the UARA. As this is the only ground upon which WWC attacks the PSC's presumption that the previously-set rates represent the Affordable Base Rates, we affirm the Order in this regard.

CONCLUSION

133 The PSC did not abuse its discretion in considering impact on the State Fund in determining whether designation of WWC as an ETC would be in the public interest under 47 U.S.C. § 214(0)(2), and we defer to the PSC's expertise in the factors it chose to consider in determining what constitutes public interest. Because the PSC's findings are supported by substantial evidence in the record, we affirm its findings. Additionally, the PSC could properly require that WWC price its universal service offerings at or below the Affordable Base Rates as a prerequisite to receiving state universal service funds, and the PSC did not need to engage in a formal rulemaking proceeding to establish that rate. The PSC's Order is affirmed.

Chief Justice Howe, Associate Chief Justice Russon, Justice Durham, and Justice Durrant concur in Justice Wilking' opinion.

      . Even if the PSC were required to consider these alleged benefits of WWC's designation as an ETC, they are not wholly uncontradicted in the record as WWC suggests. WWC asserted it would provide the public benefit of a larger local calling area than current phone companies. But WWC had not determined the local calling areas it would offer, had no knowledge of current local calling areas, and could not describe how or where WWC's local calling areas would be larger. Likewise, WWC's assertion that the benefits of competition and choice were ignored can be overcome by the substantial evidence in the record supporting a conclusion that designating additional ETCs in rural areas, with no offsetting public benefits, which results in increased burdens on the State Fund, is not in the public interest. As for the claimed benefit of mobility, the record contains little for or against mobility as a benefit.

      . The rule cited by the PSC in its Order and by the parties in their briefs, Utah Admin. Code R746-360-7(B), was renumbered effective September 1, 2001 and is now Utah R746-360-6(B). We refer to the renumbered citation.

      . Because Utah R746-460-6(B) does not constitute rate regulation, we need not reach the issue of whether ETC status is different from common carrier status.


source: Caselaw Access Project

author: DURRANT, Justice:

license: Public Domain

text:
    2002 UT 28
    HOUSING AUTHORITY OF the COUNTY OF SALT LAKE, Plaintiff and Appellee, v. John Thomas SNYDER, Defendant and Appellant.
    No. 20000591.
    Supreme Court of Utah.
    March 8, 2002.

      Kimberly D. Washburn, Salt Lake City, for plaintiff.
    Brian M. Barnard, James L. Harris, Jr., Salt Lake City, for defendant.
   DURRANT, Justice:

1 1 This appeal concerns a dispute between a tenant, John Thomas Snyder, and his landlord, the Housing Authority of the County of Salt Lake ("Housing Authority"). Snyder allegedly assaulted the manager of his apartment complex and thereafter received a notice from Housing Authority terminating his lease. When Snyder refused to vacate his apartment, Housing Authority filed an unlawful detainer action against him in district court. In response, Snyder argued that the district court lacked subject matter jurisdiction because federal law required an administrative grievance hearing. The district court rejected this argument and entered judgment in favor of Housing Authority. On appeal, Snyder renews his assertion that the district court lacked jurisdiction. We conclude that the district court lacked subject matter jurisdiction because Housing Authority failed to exhaust its administrative remedies and therefore reverse.

BACKGROUND

12 Housing Authority is a local public housing agency ("PHA"), which leases apartments to low-income persons and is subsidized by the United States Department of Housing and Urban Development ("HUD"). On August 7, 1998, Snyder executed a residential lease agreement ("Lease Agreement") with Housing Authority for an apartment in Salt Lake City, Utah. This Lease Agreement included, among other things, the following terms and conditions:

[1. Section 11(D): Snyderl will comply with all terms of this lease [and] all rules and regulations posted by Housing Authority in its main office....
[2. Section 11(H): Snyder] will be held directly responsible for [his] action[s]
[8. Section 11(I): Snyder] will act in a manner so as not to disturb any neighbors peaceful enjoyment of his/her accommodations and refrain from all illegal or criminal activity on or near the Premises....
[4. Section 17:] Housing Authority will evict [Snyder] for ... criminal activity that threatens the health, safety, or right to peaceful enjoyment by other residents; drug related criminal activity at or near the Premises; repeated failure to comply with any other Resident's obligation under the lease; or for other good cause.
Housing Authority will give [a three day] written notice [of termination] for ... criminal activity deseribed in the proceeding [sic] paragraph.... The notice shall state the reasons for termination and inform [Snyder] of [his] right to a grievance hearing in accordance with HUD regulations if applicable.
Tenaney shall not terminate until the time for [Snyder] to request a grievance procedure has expired, if [Snyder] is entitled to a grievance hearing. If [Snyder] is entitled to a grievance hearing and requests such in a timely fashion, tenancy shall not terminate until the grievance process is completed.

T3 Approximately sixteen months after the formation of this Lease Agreement, Snyder met with Sherrie Rico, the manager of his apartment complex and an employee of Housing Authority, to discuss a fee he had incurred and a letter she had sent him. According to Rico, Snyder stepped around her desk and "got in her face." She further claimed that he pointed his finger at her, berated her with intimidating language, called her vulgar names, and informed her "I'm going to get you on this." After making these alleged statements, Snyder exited Rico's office, and she filed a complaint against him with the Salt Lake City Police Department.

4 Housing Authority then served Snyder with a "3 Day Notice of Termination of Lease Agreement" on February 25, 2000. This notice highlighted the events of the February 23, 2000, meeting between Rico and Snyder and declared that Snyder had violated several provisions of his Lease Agreement. In particular, the 3-Day Notice claimed that Snyder had threatened the safety of a Housing Authority employee, Rico, and violated Sections 11(D), 11(H), and 11(I) of the lease. The notice further informed Snyder that he was not entitled to a grievance hearing under federal or state law, and ordered him to vacate his apartment by midnight on March 1, 2000.

T5 Despite this notification, Snyder remained in possession of his apartment after the specified deadline. Housing Authority responded by filing an unlawful detainer action on March 6, 2000. See Utah Code Ann. §§ 78-86-1 to -12.6 (2000). Snyder answered Housing Authority's complaint seven days later, contending, inter alia, that he was entitled to an administrative grievance hearing.

T6 On March 20, 2000, Snyder filed a Motion to Dismiss Housing Authority's unlawful detainer action. The district court denied this motion on March 27, 2000, because Snyder had not filed a notice to submit the motion for decision pursuant to rule 4-501 of the Utah Rules of Judicial Administration. See Utah R. Jud. Admin. 4-501(D). The court then scheduled Housing Authority's action against Snyder for trial.

T7 The day the trial was set to begin, May 8, 2000, Snyder filed a motion for a continuance. The following day he filed a motion for summary judgment. Notwithstanding these two motions, the district court proceeded with the trial as scheduled and issued its opinion on June 13, 2000. The court's ruling declared that Snyder's pending motions would not be ruled upon because they were not submitted for decision prior to the date of trial; it also entered judgment in favor of Housing Authority and terminated Snyder's Lease Agreement.

T8 In reaching this outcome, the district court made the following findings of fact and conclusions of law:

1. The Lease Agreement between Housing Authority and Snyder was valid.
2. Snyder breached Sections 11(I) and 17 of the Lease Agreement by engaging in "criminal activity" (ie., an assault on Rico).
3. Snyder also breached Section 17 of the lease agreement because his assault on Rico constituted "other good cause."
4. Snyder's conduct justified terminating the Lease Agreement.
5. Housing Authority properly served a 3-Day Notice to Vacate upon Snyder.
6. Snyder remained in unlawful detainer of Housing Authority's apartment for sixty-eight days.
7. Snyder was Hable for treble damages and had to vacate the apartment immediately.

T9 Snyder appealed the district court's ruling, and we took jurisdiction pursuant to section 782-2 of the Utah Code. See Utah Code Ann. § 78-2-2(8)(j) (2000). On appeal, Snyder contends that the district court erroneously concluded that it had subject matter jurisdiction. - Specifically, Snyder claims that the district court lacked subject matter jurisdiction because federal law mandated that a grievance hearing be held before his lease could be terminated. In response, Housing Authority asserts that Snyder failed to preserve his jurisdictional claim for appeal because none of his motions were submitted for decision as required by rule 4-501 of the Utah Rules of Judicial Administration. [Alternatively, Housing Authority argues that the requested grievance hearing was not mandatory because Snyder's eviction was based on a threat to the health or safety of Rico, one of its employees, and it had expressly exempted evictions based on such conduct from the administrative grievance hearing requirement.

ANALYSIS

I. STANDARD OF REVIEW/STATUTORY INTERPRETATION

110 Determining whether the district court had subject matter jurisdiction over Housing Authority's unlawful detainer action presents a question of law, which we review for correctness. See Beaver County v. Quest, Inc., 2001 UT 81, ¶ 8, 31 P.3d 1147. Where this correctness review requires us to examine statutory language, we look to the plain meaning of the statute first and go no further unless it is ambiguous. See State v. Ostler, 2001 UT 68, ¶ 7, 31 P.3d 528.

II. SUBJECT MATTER JURISDICTION

{11 We note at the outset of our analysis that "parties must exhaust applicable administrative remedies as a prerequisite to seeking judicial review." Nebeker v. Utah State Tax Comm'n, 2001 UT 74, ¶ 14, 34 P.3d 180 (internal quotations omitted). Where this precondition to suit is not satisfied, courts lack subject matter jurisdiction. Hom v. Utah Dep't of Pub. Safety, 962 P.2d 95, 99 (Utah Ct.App.1998). We also note that questions regarding subject matter jurisdiction may be raised at any time because such issues determine whether a court has authority to address the merits of a particular case. Thomas v. Lewis, 2001 UT 49, 113, 26 P.3d 217. Further, because it is a threshold issue, we address jurisdictional questions before resolving other claims. Id. Whether Snyder adequately preserved his subject matter jurisdiction claim below is therefore irrelevant.

T 12 Having concluded that his jurisdictional claim is properly before us, we next exam-ime the merits of Snyder's contention. He alleges that the district court lacked subject matter jurisdiction to decide Housing Authority's unlawful detainer action because federal law required an administrative grievance hearing. Refuting Snyder's assertion that the court lacked jurisdiction, Housing Authority claims that Snyder's conduct on February 28, 2000, constituted an assault on Rico and endangered the safety of one of its employees. Housing Authority further contends that it exempted grievances concerning evictions that involved a threat to the safety of one of its employees from the federal grievance hearing requirement. According ly, we are called upon to ascertain whether Housing Authority established such an exemption. |

«[ 13 As mentioned previously, Housing An-thority receives subsidies from the federal government. -It is therefore required to adhere to federal regulations governing a PHA and must afford its tenants the right to request a grievance hearing before evicting them or terminating their tenancy. 42 U.S.C. § 1487d(k) (2000). In fact, "each PHA receiving assistance [must] establish and implement an administrative grievance procedure under which tenants will have an opportunity for a hearing before an impartial party [on adverse action proposed by the PHA.]" Id. § 1487d(K®)(@).

14 Despite this broad language, an administrative grievance hearing is not required for every eviction or tenancy termination sought by a PHA. Id.>§ 1487d(k). Subsection 1487d(k) of title 42 of the United States Code permits a PHA to waive the grievance hearing requirement in the following manner:

For any grievance concerning an eviction or termination of tenancy that involves any criminal activity that threatens the health [or] safety ... [of] employees of the [PHA] ..., the ageney may ... exclude from its grievance procedure any such grievance, in any jurisdiction which requires that prior to eviction, a tenant be given a hearing in court which the Secretary [of HUD] determines provides the basic elements of due process....

Id.

15 Employing comparable language, seetion 966.51 of title 24 of the United States Code of Federal Regulations similarly states that "[ilf HUD has issued a due process determination, a PHA may exclude from [its] administrative grievance procedure ... any grievance concerning a termination or eviction that involves [any eriminal activity that threatens the health [or] safety ... [of] employees of the PHA." 24 - C.E.R. § 966.51(2)(G) (2000). Hence, according to the plain meaning of two federal statutes, a PHA can waive the administrative grievance hearing requirement mandated by federal law for grievances concerning any eviction or termination of tenancy that involves a threat to the health or safety of one of its employees if (1) HUD's Secretary finds that a state court proceeding affords basic due process protections to the affected tenant and (2) the PHA has properly excluded such grievances from the federal requirement.

{16 Here, HUD's Secretary determined on December 3, 1991, that Utah's Unlawful Detainer Statute, Utah Code Ann. §§ 78-36-1 to -12.6 (2000), satisfied the basic elements of due process and declared that "a PHA operating public housing in the State of Utah [could] exclude from its grievance procedure any grievance concerning an eviction or termination of tenancy which involve[d] criminal activity that threaten[ed] the health [or] safety [of] employees of the PHA...." Moreover, following HUD's due process determination, Housing Authority explicitly exeluded such grievances from its own grievance hearing rules. Specifically, Section XIII(T) of Housing Authority's "Grievance Procedure" policy established the following:

The provisions of [HA's] grievance procedure are not applicable to any grievance concerning an eviction or termination of tenancy based upon a tenant's creation or maintenance of the threat to the health or safety ... [of] HA employees. The HA may immediately commence an eviction action in accordance with State Law based on ... the grounds stated in this section.

[6] 117 Accordingly, Housing Authority clearly attempted to capitalize on the exemption permitted by federal law. Notwithstanding this attempt, however, Housing Authority did not properly create an exemption with respect to Snyder. Housing Authority failed to do so because federal law also requires a PHA to incorporate its grievance procedure rules into an individual tenant's lease agreement. 24 CFR. § 966.52(b) (2000); see also 24 C.F.R. § 966.4(M(1) (declaring that "[the lease shall state the procedures to be followed by the PHA ... to terminate the tenancy."). Indeed, federal law mandates that a "PHAI's] grievance procedure shall be included in, or incorporated by reference in, all tenant dwelling leas-eg...." 24 C.F.R. § 966.52(b) (2000); see also 24 CFR. § 966.4(0D(I). This requirement is imposed, in part, to ensure that a tenant is aware of his or her rights under the lease. See generally, 24 C.F.R. § 966.50 (2000). Snyder's Lease Agreement, however, did not include, or incorporate by reference, this required information. For that reason, we hold that Housing Authority did not adequately disclose its grievance procedure policies to Snyder and thus remained subject to the general rule requiring an administrative grievance hearing.

T18 In reaching this conclusion, we first note that the term "grievance procedure" was used in two different sections of the Lease Agreement; we also note that Section 11(D) of the Lease Agreement declared that Snyder had to "comply with all rules and regulations posted by Housing Authority in its main office." These references are insufficient, however, to incorporate the entirety of Housing Authority's grievance procedure into Snyder's Lease Agreement. Cf. Anderson v. Anderson, 18 Utah 2d 89, 91-92, 416 P.2d 308 (Utah 1966) (concluding that where one statute merely cites another statute the entirety of that mentioned statute is not incorporated by reference).

T19 Admittedly, parties may incorporate the terms of another document by reference into their contract. Consolidated Realty Group v. Sizzling Platter, Inc., 930 P.2d 268, 273 (Utah Ct.App.1996). Yet, the terms of another document cannot be incorporated by reference without specific language. Rather, "the reference must be clear and unequivocal," and alert the non-drafting party that terms from another document are being incorporated. Id.

120 Given the degree of specificity required for incorporation by reference, the language included in Snyder's Lease Agreement did not incorporate either the entirety of Housing Authority's grievance procedure rules or its internally established exemption to the federally mandated grievance hearing requirement. To begin with, the Lease Agreement never informed Snyder that a grievance hearing was unavailable for grievances concerning any eviction or termination of tenancy that involved a threat to the health or safety of a Housing Authority employee. Instead, the Lease Agreement, at best, only partially incorporated Housing Authority's grievance procedure rules. Specifically, the Lease Agreement declared in seetion 3 that "[Snyder] hald] a right to request a hearing under Housing Authority grievance procedures [in two situations: where he disagreed with Housing Authority's (1) rent revaluation amount or (2) its decision to change his apartment location.]"

{21 All other language in the Lease Agreement that referred to the grievance procedure process was either vague and ambiguous or directly suggested that the federal rule requiring a grievance hearing applied. Indeed, section 17 of Snyder's lease stated that a grievance procedure would be provided in "accordance with [federal] regulations" and then, without elaborating on that procedure, stated that Snyder's tenancy could not be terminated until he had been afforded the right to request a "grievance hearing," if applicable. In relevant part, section 17 of the lease, which is entitled "Lease Termination," declared the following:

Housing Authority will give [a three day] written notice [of termination] for ... criminal activity described in the proceeding [sic] paragraph.... The notice shall state the reasons for termination and inform [Snyder] of [his] right to a grievance hearing in accordance with HUD regulations if applicable.
Tenancy shall not terminate until the time for [Snyder] to request a grievance procedure has expired, if [Snyder] is entitled to a grievance hearing. If [Snyder] is entitled to a grievance hearing and requests such in a timely fashion, tenancy shall not terminate until the grievance process is completed.

Thus, the language used in Snyder's Lease Agreement neither included, or incorporated by reference, the entirety of Housing Authority's grievance procedure rules nor its internally established exemption to the federally mandated grievance hearing requirement.

122 Because the exemption was not included in the Lease Agreement, the federal rule mandating a grievance procedure for adverse action proposed by a PHA remained in effect. Housing Authority therefore failed to exhaust its administrative remedies and had no right to seek relief from the district court. See Merrihew v. Salt Lake County Planning & Zoning Comm'n, 659 P.2d 1065, 1067 (Utah 1983). As a result, the district court lacked subject matter jurisdiction over Housing Authority's unlawful detainer action. See id.

CONCLUSION

23 We conclude that Housing Authority failed to exhaust its available administrative remedies and that the district court lacked subject matter jurisdiction over Housing Authority's unlawful detainer action. Accordingly, we vacate the ruling rendered by the district court and remand this case with the order that plaintiff's unlawful detainer action be dismissed.

1 24 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURHAM, and Justice WILKINS coneur in Justice DUR-RANT's opinion.

      . This letter claimed Snyder had abused Housing Authority employees and other residents, and informed him he would be evicted if his conduct persisted.

      . Snyder alleges the court made additional errors, including the following: (1) it granted an expedited trial absent the posting of a possession bond, (2) it granted an expedited trial without allowing him an opportunity to conduct adequate discovery, (3) it concluded that he had engaged in an assault, (4) it concluded that the Lease Agreement permitted evictions based upon an assault against a Housing Authority employee, and (5) it found that the Lease Agreement complied with federal regulations. Because we find Snyder's jurisdictional argument dispositive, we do not address these contentions.

      . Specifically, the Lease Agreement stated in Section 3 that "[If Housing Authority reevaluates rent amount or determines that [Snyder] must change Premises, [Snyder] may ask for an explanation of such determination; if [Snyder] disagrees, [Snyder] has the right to request a hearing under Housing Authority grievance procedures." In addition, the Lease Agreement declared in Section 17 that "Itlenancy shall not terminate until the time for [Snyder] to request a grievance procedure has expired, if [Snyder] is entitled to a grievance hearing. If [Snyder] is entitled to a grievance hearing and requests such in a timely fashion, tenancy shall not terminate until the grievance process is completed."


author: DURHAM, Justice.

text:
    2002 UT 26
    STATE of Utah, Plaintiff and Appellee, v. Daniel Marion SCHROYER, Jr., Defendant and Appellant.
    No. 20000877.
    Supreme Court of Utah.
    March 8, 2002.

      Mark L. Shurtleff, Att'y Gen., Marian Decker, Asst. Att'y Gen., Kenneth W. Upde-grove, Salt Lake City, for plaintiff.
    Heather Johnson, Lynn R. Brown, Salt Lake City, for defendant.
   DURHAM, Justice.

INTRODUCTION

11 Defendant Daniel Schroyer (Schroyer) and co-defendant Jordhan Swank (Swank) were charged with the aggravated murder of Robby Benzon (Benzon), a capital offense, in violation of Utah Code Ann. § 76-5-202(1) (1999) and attempted aggravated murder of Thomas Majnik (Majnik), a first degree felony, in violation of Utah Code Ann. § 76-5-202(1) and § 76-4-102(1) (1999). The attempted aggravated murder charge was later dismissed.

T2 At the preliminary hearing, defendant was bound over for trial after the magistrate found probable cause to believe that he intentionally committed homicide. The magistrate also found probable cause to believe that the commission of the murder was aggravated by two cireumstances identified in Utah Code Ann. § 76-5-202(1)(b) and (c). Defendant's motion to quash the bindover order with the district court was granted in part and denied in part.

T3 Defendant entered a conditional guilty plea to aggravated murder on April 24, 2000, preserving his right to appeal the district court's refusal to quash the bindover. After he was sentenced to life in prison, defendant appealed.

BACKGROUND

14 On the night of September 13, 1999, defendant and his friend Swank spent the evening together. That same night two other friends, Benzon and Majnik, were out driving around. Near midnight, somewhere in Salt Lake City, Benzon requested that Majnik pull into a residential driveway. Benzon went into the house for several minutes. When Benzon returned, he asked Majnik if he would drive two of his friends, defendant and Swank, to Murray. Majnik agreed and the two men entered the rear of the car with defendant seated behind Majnik and Swank seated behind Benzon.

[ 5 Loud music was playing in the car. At some point, defendant pulled a gun out of his waistband and held it to the left side of Benzon's head. Swank could see defendant talking, but couldn't hear what he was saying. Majnik heard a "pop," thought it was a firecracker, then looked over and saw Benzon "kind of slumped forward" with "blood drizzling from the side of his head." Majnik testified that defendant said, right, he's-that's right, he's dead, mother Fer." Defendant put the gun to the back of Majnik's head and told him to keep driving. He continued to drive for a short period of time, and Majnik testified that for at least part of the time, the gun was at the back of his head.

T6 Defendant instructed Majnik to pull over. Majnik stopped the car and got out. He testified that defendant got out of the car and then pointed the gun at him. Majnik stepped aside, grabbed the gun's barrel and held it to defendant's chest. He told defendant, "You're a dead mother F'er when I get this gun." Defendant then yelled to Swank, "Islhoot him." Swank shot Majnik several times, hitting him twice. Swank testified that he would not have shot Majnik if defendant had not told him to do so. Majnik fell to the ground and both defendant and Swank ran off. Majnik survived; Benzon did not.

17 As they ran from the scene, defendant and Swank got rid of their guns. They became separated, but met the next day at a friend's house. Swank asked defendant why he shot Benzon, and defendant answered that Benzon "laughed and didn't take him serious."

STANDARD OF REVIEW

18 "The determination of whether to bind a criminal defendant over for trial is a question of law." State v. Clark, 2001 UT 9, ¶ 8, 20 P.3d 300, 303. Accordingly, this Court reviews that determination without deference to the court below. Id.

ANALYSIS

SUFFICIENCY OF EVIDENCE TO ESTABLISH PROBABLE CAUSE

T9 Defendant argues on appeal that the testimony of Majnik and Swank "did not establish the elements of aggravating circumstance or of intent sufficient to bind [defendant] over on the charge of aggravated murder." Specifically, defendant complains that the State failed to establish probable cause either that he intended to murder Benzon or that he attempted to kill Majnik as part of the same criminal episode, an aggravating cireumstance under Utah Code section 76-5-202(1)(b) (1999).

T10 At a preliminary hearing "the prosecution must present evidence sufficient for the magistrate to find [plrobable cause to believe that the crime charged had been committed and that the defendant has committed it." State v. Talbot, 972 P.2d 435, 437 (Utah 1999) (citations and internal quotations omitted). The evidence must be viewed "in a light most favorable to the prosecution" with all inferences resolved in the prosecution's favor. Id. at 437-38 (citations and internal quotations omitted). The defendant should be bound over for trial "[uJnless the evidence is wholly lacking and incapable of reasonable inference to prove some issue which supports the [prosecution's] claim...." Id. (citations omitted).

111 Recently, in State v. Clark, 2001 UT 9, ¶ 16, 20 P.3d 300, this court clarified that the "quantum of evidence necessary to support a bindover is less than that necessary to survive a directed verdict motion." While the prosecution must produce "believable evidence of all the elements of the crime charged" in order to sustain its burden at the preliminary hearing stage, "unlike a motion for a directed verdict, this evidence need not be capable of supporting a finding of guilt beyond a reasonable doubt." Id. at 115 (citations and internal quotation omitted).

A. - Probable Cause for Intentional Action

112 The State must prove defendant intentionally or knowingly caused Ben-zon's death, plus an aggravating cireum-stance, to establish aggravated murder. Utah Code Ann. § 76-5-202(1). Defendant's contention-that the trial court erred in denying his motion to quash the bindover order because his evidence at the preliminary hearing supports a theory of accidental shooting-misses the point. At this stage of the proceedings, all that the State must do is establish that its theory of intentional homicide is reasonable. Clark, 20 P.3d 300, 2001 UT 9 at ¶ 20. The trial court found ample evidence for the State's theory of intentional shooting, including defendant's (1) making no comments or statements indicating the shooting was accidental, (2) taking no steps to seek medical treatment for Benzon, (8) stating to Majnik, "That's right, he's dead, mother Fer," and (4) telling Swank that he shot Benzon because "[he] laughed and didn't take him serious."

1 13 Viewed in the light most favorable to the prosecution, and drawing all reasonable inferences in the prosecution's favor, these facts, among others relied on by the magistrate, support the State's theory of intentional homicide presented at the preliminary hearing. We therefore affirm the trial court's denial of defendant's motion to quash the bindover on this ground.

B. Probable Cause that Crimes Were Committed Incident to One Criminal Episode

114 Defendant was charged with aggravated murder based on the State's theory that he intended to shoot Benzon and also was a party to the attempted murder of the driver, Majnik, during the same eriminal episode, constituting an aggravating cireum-stance under section 76-5-202(1)(b). Conviction under the "criminal episode" portion of the statute requires the prosecution to establish that the conduct giving rise to the crimes in question is "incident to an attempt or an accomplishment of a single criminal objective," and involved acts closely related in time. State v. Alvarez, 872 P.2d 450, 459 (Utah 1994); see also Utah Code Ann. § 76-1-401 (1999). Defendant argues that the two incidents were not closely related in time, that he acted in self-defense in Majnik's shooting, and that therefore he did not commit the erimes as part of one criminal episode for purposes of section 76-5-202(1)(b).

1. Close Relationship in Time

115 The trial court stated in its memorandum decision that "defendant does not argue against the temporal proximity of the murder of Benzon and the attempted murder of Majnik." Defendant acknowledges in his appeal to this court that he did not make an argument regarding the relationship in time of the two incidents to the trial court. Yet, without arguing the existence of excéptional cireumstances, he has now argued for the first time that "these two incidents are not closely related in time for purposes of the Alvares definition." We will not decide this question. See State v. Pledger, 896 P.2d 1226, 1229 n. 5 (Utah 1995) (declining to reach issue defendant did not raise in motion to quash bindover, where defendant did not argue the existence of "exceptional circumstances" on appeal). Even if we were to address the substance of defendant's newly-minted argument, it is a non-starter. The murder and attempted murder occurred within five to ten minutes of each other, clearly demonstrating a close temporal connection. See Alvarez, 872 P.2d at 459 (holding two murders committed during five minutes of fighting were closely related for section 76-5-202(b)(1) purposes); see also State v. Valdez, 748 P.2d 1050, 1052, 1054 (Utah 1987) (holding that two homicides committed within approximately an hour- and-a-half period of time could satisfy section 76-5-202(1)(b)).

2. Single Criminal Objective

$16 The State argued to the trial court that the attempt to murder Majnik was to prevent him from being able to testify about Benzon's murder, thus linking the two crimes in one eriminal episode. The trial court found that (1) Majnik did indeed witness Benzon's murder, (2) he could identify defendant's and Swank's faces, and therefore could identify defendant as Benzon's killer, and (38) defendant ran from the crime seene and hid his gun, indicating that he was trying to hide the erimes, conduct "which is also consistent with witness elimination." The trial court found that viewing the facts "in a light most favorable to the prosecution, ... the magistrate justifiably concluded that the defendant attempted to kill Majnik ... to eliminate him as a witness to the murder of Benzon and ... that the acts constituting the murder and attempted murder were bound together by a single criminal objective." The trial court then appropriately cited the case of State v. Lopez, 789 P.2d 39, 42 (Utah App.1990), which held, in the context of join-der and severance, that murder coupled with another crime to avoid responsibility for the murder constitutes a "single criminal objective" linking the two offenses together (as long as the time element is satisfied).

1] 17 We affirm the trial court's finding that the two erimes constituted one eriminal episode.

CONCLUSION

18 We affirm the trial court's denial of defendant's motion to quash the bindover order, as well as defendant's conviction of aggravated murder. The trial court properly found that probable cause existed to believe that defendant intended to shoot Benzon and that defendant's attempted aggravated murder of Majnik was part of the same criminal episode.

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

      . Subsection 1(b) reads: "the homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which two or more persons were killed, or during which the actor attempted to kill one or more persons in addition to the victim who was killed[.]" Defendant is liable for Swank's shooting of Majnik as a party under Utah Code section 76-2-202 (1999), which reads: "Every person acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct."


text:
    2002 UT 25
    GRAND COUNTY, Plaintiff and Respondent, v. Lester W. ROGERS, Defendant and Petitioner.
    No. 20000672.
    Supreme Court of Utah.
    March 8, 2002.

      W. Seott Barrett, Logan, for plaintiff.
    Scott L. Wiggins, Salt Lake City, for defendant.
   WILKINS, Justice.

11 Petitioner Lester W. Rogers seeks review of a decision of the court of appeals. On summary judgment the district court ordered Rogers to bring several parcels of real property into compliance with the Grand County land use code. The court of appeals affirmed the grant of summary judgment. We granted certiorari to review the court of appeals' decision. We affirm the decision of the court of appeals.

BACKGROUND

12 The following facts are undisputed by the parties. Lester W. Rogers subdivided and conveyed portions of his thirty-four acre tract of land located near Thompson Springs, Grand County, Utah, to several buyers. Several of these conveyances were subsequently recorded by the Grand County Recorder. Before he sold the subdivided lots, however, Rogers failed to file a valid subdivision plat and obtain approval to subdivide it as required by the county's ordinances on land use.

T 3 Consequently, Grand County sued Rogers in March 1999, seeking to enjoin him from further subdividing his property and to compel him to bring the already conveyed parcels into compliance with the land use code. Grand County moved for summary judgment, which the district court granted. The district court granted the summary judgment motion based on its determination that Rogers failed to raise any genuine issues of material fact or demonstrate that further discovery was needed. As a result, the district court enjoined Rogers from further subdividing his property and ordered him to obtain subdivision approval for those parcels that he had already sold and conveyed in violation of the county land use ordinance. Rogers appealed.

T4 In a brief memorandum decision, the court of appeals affirmed the district court's grant of summary judgment. The court of appeals held that Grand County was not estopped from enforcing its subdivision ordinances by the County Recorder's filing of the documents Rogers and the respective buyers used to convey portions of Rogers' land. The court of appeals also rejected Rogers' other contentions and further held that the buyers were not necessary parties pursuant to Utah Rule of Civil Procedure 19(a), that the Occupying Claimant's Act, Utah Code Ann. §§ 57-6-1 to -8 (2000), was inapplicable to this case, and that the trial court did not abuse its discretion in denying further relief.

T5 Rogers sought review of the court of appeals' decision, which we granted.

STANDARD OF REVIEW

16 "On certiorari we review the decision of the court of appeals, not the decision of the trial court. In doing so, we review for correctness, giving the court of appeals' conclusions of law no deference." State v. A.T., 2001 UT 82, ¶ 5, 34 P.3d 228 (citation omitted).

ANALYSIS

I. MEMORANDUM DECISIONS IN GENERAL

17 We note that the matter presented for our review is a Memorandum Decision of the court of appeals designated "Not for Official Publication." As instituted by the court of appeals, memorandum decisions designated as such are not published, and, in this respect, differ from opinions that are published in the official reporter and may be relied upon as precedent in the courts of this state. Memorandum decisions are intended to address cases which do not present novel issues of law on appeal, with reference to well-established precedent arising either from case law or from unambiguous statutory language. They are intended to be of use only to the lower tribunal whose work is the subject of the appeal, and to the litigants and parties in the case. For this reason, memorandum decisions usually dispense with much of the background detail common to an opinion. Presumably, the lower court and the parties are well aware of the facts and circumstances giving rise to the appeal and need not be reminded in any detail. While each case reviewed on appeal is of importance to the parties involved, and to their attorneys and the lower court, not all matters are of general interest to the public and bar.

T8 Opinions of the court, on the other hand, are intended for the general consumption of courts, litigants, the bar, and the public. They are usually more detailed in their treatment of the matter under review so that persons not familiar with the underlying case will have sufficient background to understand fully the reasoning and decision reached by the appellate court in rendering its opinion.

T9 Once a legal principle has been well established in the law, it is rarely necessary to review the genesis and justification for that principle in subsequent cases. For example, the standard of review applied by an appellate court in this state to a matter decided on a motion for summary judgment is set forth in numerous cases from this court and the court of appeals, and is specified in rule 56 of the Utah Rules of Civil Procedure. As a result, it would add nothing to the law, or the understanding of the law, for us to explain in each such case the reasoning behind the rule. We simply note it in passing, and then apply it. This concept of not continually repeating well-established legal principles has given rise to the use of memorandum decisions by the court of appeals.

T 10 Under our current system, the majority of appeals are either filed directly with the court of appeals, see Utah Code Ann. § 78-2-2 (Supp.2001) (jurisdiction of the supreme court); § 78-22-38 (Jurisdiction of the court of appeals), or they are transferred there by this court, see Utah R.App. P. 42 (transfer from the supreme court to the court of appeals); Utah R.App. P. 44 (transfer of improperly pursued appeals). The intent of this process is to focus the time of the supreme court on cases of first impression, and those cases considered by the legislature to be of such importance that transfer to the intermediate appellate court is not authorized.

{11 Theoretically, the court of appeals handles those cases that are least likely to present novel issues of law and most likely to be subject to application of well-established precedent. In reality, however, the court of appeals is often faced with novel legal issues, cases that require the interpretation of statutory law for the first time, and cases of broad interest in the legal community. This is in part a result of the statutory jurisdiction of the court of appeals, which includes, among other things, all juvenile and family law matters, see Utah Code Ann. § 78-2a-3(2)(c) & (h) (Supp.2001), and partly a result of imperfect sereening by the supreme court in deciding which cases to transfer to the court of appeals.

T12 Onee a matter reaches the court of appeals by either of the two mechanisms, through direct filing of the appeal with the court of appeals or through transfer from the supreme court, the court of appeals is faced with a substantial volume of cases to resolve each year. In an effort to provide thorough and timely review, the court of appeals has chosen to treat some cases with a fully-reasoned, published, citable opinion, and others with abbreviated, unpublished, non-cita-ble memorandum decisions. The decision to treat a particular decision as an opinion or as a memorandum decision is one made by the judges of the court of appeals, and is subject to modification by them until the decision is released to the parties and public Once issued as a memorandum decision, it is difficult to reissue as an opinion because of the process by which each is produced. Although the outcome of the appeal should be identical no matter which format is adopted, the drafting process, and the product produced, are substantially different.

13 Some confusion has arisen as a result of the use by the court of appeals of memorandum decisions. Under our constitutional authority to govern, by rule, the appellate process, we take this opportunity to provide guidance on the use of memorandum decisions, and the practice of treating them as not officially published, and not citable as precedent.

114 A memorandum decision may not be used to render a decision in any matter not clearly and unequivocally disposed of on the basis of well-established Utah case law or Utah statute. A party to an appeal is entitled to an understanding of the reasons relied upon by the appellate court in reaching its decision. When the appellate court can cite to clear precedent that is, without question, applicable to the situation presented for review, the parties may know of the reasoning without the need of the appellate court reiterating previously well defined law. However, when the reasoning is new, or novel, or has not previously been applied to a matter of the type on appeal, a memorandum decision is inappropriate.

T 15 Increasingly, matters accepted by this court for certiorari review are matters addressed by the court of appeals in a memorandum decision. This circumstance presents another difficulty. When the reasoning of the court of appeals is abbreviated, or superficial, or incomplete, our review is made much more difficult. While we may guess what reasoning was employed, and be offered other speculation by the parties in their briefs on certiorari, we cannot know, without remand to the court of appeals for a more complete explanation. Remand, while effective and oftentimes appropriate, is costly in both time and resources for the parties and for the court, and is therefore only to be used when necessary. More helpful would be a moderation in the use of memorandum decisions that limits their use to cases decided on well-established and readily ascertainable grounds, and including reference to the well-established law given in the memorandum decision. When such a citation cannot be given, the issue under consideration is not appropriate for memorandum decision treatment.

116 We also take this opportunity to correct the misimpression that the Judicial Council has authority to adopt rules governing the use of memorandum decisions in the appellate process. This responsibility and authority has been specifically reserved to the supreme court in the constitution. Utah Const. art. VIII, § 4. Unless and until this court adopts a rule to the contrary, it is appropriately within the discretion of the court of appeals to determine which matters require oral argument, which decisions require a full opinion, and which do not. It is not, however, within their authority, or the authority of the Judicial Council, to decide which of their decisions may be cited as precedent. The work of judges, the product being decisions and opinions issued to the parties, bar, and public, is the very fabric of the common law. When judges speak on issues of law, that expression becomes part of the law until it is authoritatively revised. When the court of appeals renders a decision on an issue, that decision is automatically part of the law of this state, unless and until contravened by this court, the legislature, or the people through the processes authorized for the making of new law. For this reason, decisions of the court of appeals expressed in a memorandum decision, or in an opinion, are equally binding upon lower courts of this state, and may be cited to the degree that they are useful, authoritatively and persuasively. Such decisions are issued and distributed as are all other opinions, except for the fact that they are not published in the Utah Advance Reports or the West reporter system. They are generally available to the bar and public through the internet service provided by the Administrative Office of the Courts, and although not "officially published," may be presented as precedential authority to a lower court or as persuasive authority to this court, so long as all parties and the court are supplied with accurate copies at the time the decision is first cited.

T17 Obviously, if memorandum decisions are limited only to those cireumstances in which the legal reasoning and the application of that reasoning to a case add nothing to the body of the law, citation of a memorandum decision will be unnecessary. Existing primary case law is adequate and more appropriate because of its more complete reasoning. But, in those rare instances when some new legal rule is inadvertently announced by way of a memorandum decision, authorizing citation to that decision will assure consistency in the law.

1 18 Finally, since the use of memorandum decisions is limited to cireumstances where the reasoning of the court cannot be misunderstood, it is unlikely that a memorandum decision is appropriate in cases where the ultimate result is other than an affirmance of the trial court's actions, except in those rare instances where the reasons for reversal are clearly set forth in prior case law. In matters where the lower court is reversed, in whole or in part, or affirmed on other grounds, more explanation is usually necessary. In matters where the trial court's decision and reasoning are upheld, the reasoning of the trial court leading to that result is usually well known to the litigants, and need not be carefully described. Reversals and affirmances on other grounds do not enjoy this same advantage.

119 With that background in mind, we consider the memorandum decision in this case.

II. NO GENUINE ISSUES OF MATERIAL FACT

120 Rogers contends that the court of appeals erred in upholding the district court's grant of summary judgment by failing to recognize genuine issues of material fact properly raised by him. Grand County argues that Rogers failed to present any genuine issues of material fact to the trial court, and that Rogers has not shown that further discovery would raise any.

1 21 We hold that the court of appeals did not err in affirming the district court's decision, by concluding that Rogers failed to raise any genuine issues of material fact. Summary judgment is appropriate when the evidence "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). Rule 56 of the Utah Rules of Civil Procedure further requires:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Utah R. Civ. P. 56(e) (emphasis added). In this case, Rogers never set forth specific facts demonstrating the existence of a genuine issue of material fact for trial. Rogers' contention, rather, is that the trial court and the court of appeals should have interpreted and applied the facts differently. Rogers does not dispute any of the facts found by the trial court and relied upon by the court of appeals, nor does he offer a viable theory regarding the nature of any disputed facts that he seeks to obtain through discovery. See Utah R. Civ. P. 56(F).

122 The erux of Rogers' contention is that the facts before the trial court adequately support theories of estoppel and waiver. He contends that, because the County Recorder's Office accepted and recorded conveyancing documents memorializing his real property transactions, Grand County acted inconsistently with its subsequent enforcement of the county land use code, and therefore waived enforcement of or should be estopped from enforcing the land use code against him. Grand County argues that because the county recorder is required by law to record every properly presented document, the recording of conveyancing documents cannot reasonably be interpreted to constitute waiver, nor should the county recorder's actions estop the county from enforcing the land use code. Both theories, estoppel and waiver, were argued to the court of appeals. The court of appeals declined to consider the waiver claim because it was not properly preserved for appeal. The court held that Rogers' estop-pel claim failed as a matter of law.

123 "This court has recognized there are circumstances where it is inequitable to enforce a zoning ordinance." Xanthos v. Bd. of Adjustment of Salt Lake City, 685 P.2d 1082, 1037 (Utah 1984). To invoke the doe-trine of equitable estoppel in a zoning case, "the county must have committed an act or omission upon which the developer could rely in good faith in making substantial changes in position or incurring extensive expenses." Utah County v. Young, 615 P.2d 1265, 1267 (Utah 1980). "The action upon which the developer claims reliance must be of a clear, definite and affirmative nature." Id.

11 24 The court of appeals determined that the filing of the conveyancing documents by the county recorder, the act Rogers claims is of such a clear, definite, and affirmative nature, is not one upon which Rogers could "rely in good faith in making substantial changes in position or incurring extensive expenses." Id. Importantly, Rogers did not present facts, nor offer the nature of any disputed facts that he expected to uncover through discovery, that would satisfy the doctrine of equitable estoppel. The facts before the trial court and, therefore, before the court of appeals, do not satisfy the doe-trine of equitable estoppel.

125 We agree with the court of appeals that the mere act of accepting and recording conveyance instruments for notice purposes by the county recorder does not reasonably justify a belief by a developer that the county intends to forego its right to enforce the land use code. County recorders are required by law to promptly record all instruments required by law to be filed in the office of the county recorder. Utah Code Ann. § 17-21-20 (1999); see also § 17-21-17(1). The county recorder is mandated to keep various indexes, § 17-21-6, open to the public for inspection, § 17-21-19, thereby placing the public on notice of the contents of the recorded documents, § 17-21-11. The county recorder is not equipped to, nor should it be required to, determine the legality of each document presented for recording. In short, the mere act of recording does not ratify the legal fitness of individual property deals and thereby estop subsequent enforcement of valid zoning and land use provisions as Rogers suggests. Judgment as a matter of law was appropriate, and, therefore, the court of appeals did not err in affirming the judgment.

III. NO RULE 19(a) NECESSARY THIRD PARTIES

126 The court of appeals upheld the judgment of the trial court that the buyers were not necessary parties under rule 19(a) of the Utah Rules of Civil Procedure. Rogers alleges that the court of appeals erred in not considering the buyers to be necessary parties. Grand County insists that the buyers are not indispensable, pointing out that Rogers named twenty easily identifiable "doe third-party defendants" who were never served, and arguing that the trial court judgment will not impair or impede the interests of the buyers and that nothing would be gained by making them parties.

T 27 The court of appeals should have considered the trial court's rule 19 determination under an abuse of discretion standard. See, e.g., Bonneville Tower Condo. Mgmt. Comm. v. Thompson Michie Assocs., Inc., 728 P.2d 1017, 1020 (Utah 1986); see also, eg., Werner-Jacobsen v. Bednarik, 946 P.2d 744, 746 (Utah Ct.App.1997). There is no language in the memorandum decision suggesting this standard was employed by the court of appeals on the rule 19 issue.

€28 Under Rule 19(a) of the Utah Rules of Civil Procedure, a party is necessary if:

(1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may () as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

Utah R. Civ. P. 19(a); see also Cowen & Co. v. Atlas Stock Transfer Co., 695 P.2d 109, 114 (Utah 1984) ("[A] necessary party is one whose presence is required for a full and fair determination of his rights as well as of the rights of the other parties to the suit."). The underlying purpose of rule 19 requiring join-der of necessary parties is " 'to protect the interests of absent persons as well as those already before the court from multiple litigation or inconsistent judicial determinations. " Landes v. Capital City Bank, 795 P.2d 1127, 1130 (Utah 1990) (quoting 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1602, at 21 (1986)).

129 Under rule 19, the trial court must first determine whether a party is necessary. Utah R. Civ. P. 19(a); Landes, 795 P.2d at 1130. If the party is necessary, the court must next consider whether joinder of the necessary party is feasible. Utah R. Civ. P. 19(a); Landes, 795 P.2d at 1180-31, 1182. If so, the necessary party "shall be joined." Utah R. Civ. P. 19(a). If, on the other hand, the court finds it unfeasible to join the necessary party, the court must address the indispensability of the party under Rule 19(b) and decide whether the action should proceed or be dismissed. Utah R. Civ P. 19(b); Landes, 795 P.2d at 1180 ("Only if we first find [a party] to be a necessary party can we properly proceed to the 19(b) question of indispensability."); Werner-Jacobsen, 946 P.2d at 747 ("'The issue of indispensability under Rule 19(b) need not be addressed unless the court finds that a party is necessary, [and] that joinder is not feasible."). Further, in performing a rule 19 analysis, a court must discuss specific facts and reasoning that lead to the conclusion that a party is or is not necessary or indispensable, and failure to do so is error. Landes 795 P.2d at 1180; Werner-Jacobsen, 946 P.2d at 747 (noting that the trial court "is required to identify the specific facts and reasoning that support its conclusion that a party is or is not necessary under Rule 19(a)"). Nevertheless, the burden of presenting such specific facts and reasoning is on the party attempting to persuade the court that parties are necessary-Rogers in this case.

1 30 We review only the court of appeals' holding that the buyers were not necessary parties under rule 19(a) "[blecause Rogers alleges no facts which would meet the requirements of Rule 19...." In its ruling granting summary judgment, the trial court failed to discuss specific facts and reasoning that led it to the conclusion that the buyers were not necessary parties under rule 19(a). It could not, however, because counsel for Rogers never offered any specific facts or reasoning why the buyers were necessary parties. Our review of the record reveals that the only argument from Rogers consists of nine lines in his memorandum opposing Grand County's motion for summary judgment. He suggests that the court could not grant summary judgment because the buyers were not before the court, but his argument is unaccompanied by any legal authority. Noticeably absent is a reference to rule 19, let alone a discussion of specific facts and reasoning to persuade the court that buyers were necessary parties. Because Rogers failed to present any specific facts and reasoning to persuade the court that parties are necessary, we conclude the court of appeals did not err in affirming the trial court.

IV. OCCUPYING CLAIMANTS ACT INAPPLICABLE

131 Rogers contends that the buyers qualify as occupying claimants under the Occupying Claimants Act, Utah Code Ann. §§ 57-6-1 to -8 (2000). He claims the court of appeals erred in concluding that the Act was inapplicable to this case. The court of appeals was correct. The Occupying Claimants Act deals with the determination of title and execution on property where an oceu-pant, under color of title, has made valuable improvements to the land. Determination of title and execution on the property is not at issue here. Grand County seeks only to enforce the subdivision law by prohibiting Rogers from further subdividing the land until he has filed a valid subdivision plat and thereby complied with the county's ordinances on land use.

CONCLUSION

T 32 The decision of the court of appeals is affirmed.

1 33 Associate Chief Justice RUSSON, Justice DURHAM, and Justice DURRANT concur in Justice WILKINS opinion.

1 34 Chief Justice HOWE concurs in the result.

      . We note that screening is usually accomplished at the very earliest stage of an appeal in order to minimize any delay associated with transferring the case to the court of appeals. As such, litigants have often not fully developed their theory on appeal, and may ultimately argue issues not present when screening decisions are made.

      . See Utah Const. art. VIII, § 4 (''The Supreme Court shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process.").

      . In the case of a statute, care should be used to ensure that first impression analysis of a statute, or unique application of a statute, be delivered in an opinion, not a memorandum decision.

      . The Judicial Council had no authority to promulgate rule 4-508 of the Utah Rules of Judicial Administration, which purports to address this question.

      . This is a question of first impression.