author: HOWE, Justice:

text:
    2002 UT 61
    Larry JULIAN, Plaintiff, Appellee, and Cross-Appellant, v. STATE of Utah, Defendant, Appellant, and Cross-Appellee.
    No. 20000601.
    Supreme Court of Utah.
    July 2, 2002.

      J. Thomas Bowen, Jennifer Gowans, Mid-vale, for plaintiff.
    Mark L. Shurtleff, Att'y Gen., Erin Riley, Asst. Att'y Gen., Salt Lake City, for defendant.
   HOWE, Justice:

INTRODUCTION

{1 The State appeals from a judgment of the district court granting post-conviction relief to appellee Larry Julian on the ground of newly discovered evidence.

«BACKGROUND

12 In 1987, a jury convicted Julian of two counts of aggravated sexual abuse of a child, in violation of Utah Code Ann. § 76-5-408.1 (1978 & Supp.1985), for acts of sodomy committed on his daughters, A, age eight, and N, age ten. The evidence against Julian consisted entirely of (1) the young girls' testimonies, (2) statements that they had made to third persons, (8) expert medical testimony stating that N showed no signs of sexual abuse and that A exhibited scarring on her vaginal opening that could have been caused either by sexual abuse or by other non-abuse events such as masturbation, and (4) expert medical testimony that traces of blood on A's underelothes also could have been caused by sexual abuse or non-abuse events. The trial court sentenced Julian to two concurrent prison terms of fifteen years to life. We affirmed the convictions on direct appeal. See State v. Julian, 771 P.2d 1061 (Utah 1989) (Julian I ).

13 In December 1995, Julian challenged his convictions in a petition for post-conviction relief filed pursuant to rule 65B of the Utah Rules of Civil Procedure (1995). After discovery and a hearing, the trial court (the habeas court) vacated the conviction, ruling that the court at Julian's trial had committed plain error by failing to make reliability findings under Utah Code Ann. § 76-5-411 regarding testimony concerning his daughters' out-of-court statements and that there was a reasonable probability that the outcome of the trial would have been different because such findings would have been made in favor of Julian. The State appealed, and we reversed and remanded, directing the habeas court to make specific findings regarding the admissibility of the children's out-of-court statements under alternative exceptions to the hearsay rule. See Julian v. State, 966 P.2d 249 (Utah 1998) (Julian II ).

14 In 1996, while Julian II was pending, the Utah Legislature enacted the Post-Conviction Remedies Act (PCRA), codified at Utah Code Ann. §§ 78-85a-101 to-110 (1996). The PCRA replaced prior post-conviction remedies with a statutory, "substantive legal remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies." Id. § 78-85@a-102. Also, while Julian 2 was pending, Julian learned for the first time that A had recanted her trial testimony, admitting in 1994, in conversations with her ecclesiastical advisor and her foster father, that she had lied at Julian's original trial, Relying on this new evidence, Julian filed an amended petition of post-conviction relief under rule 65C of the Utah Rules of Civil Procedure.

T5 On October 28, 1999, the habeas court entered a memorandum decision wherein it concluded that almost all of the children's out-of-court statements were admissible as prior consistent statements under rule 801(d)(1)(b) of the Utah Rules of Evidence. The court further concluded that statements the children made to a physician and clinical social worker were admissible under rules 803(4) and 702 of the Utah Rules of Evidence. Finally, the court concluded that Julian's trial counsel had not been ineffective.

11 6 In early 2000, the habeas court held an evidentiary hearing on the issue of A's recantation. A testified she was strongly pressured to falsely accuse Julian at his trial by her mother, who was dealing with substance abuse problems and had a history of physically and mentally abusing A, N, and their siblings. A also testified that interviews with counselors and group therapy sessions provided further impetus for her to lis. The habeas court subsequently granted Julian's amended petition for post-conviction relief, finding that A's testimony regarding her perjury at the original trial and her testimony regarding her mother's coercive tactics, drug problems, and abuse were credible. Relying on the standards set forth in State v. James, 819 P.2d 781, 793 (Utah 1991), the court further found that A's testimony was not cumulative, could not have been reasonably discovered before trial, and would make a different result probable on retrial.

T7 The State appeals, and Julian cross-appeals.

STANDARD OF REVIEW

18 When reviewing an appeal from an order granting post-conviction relief, we review the habeas court's conclusions of law for correctness and its findings of fact for clear error. Seel v. Van Der Veur, 971 P.2d 924, 926 (Utah 1998); Julian 2, 966 P.2d at 252.

ANALYSIS

{9 The State urges us to reverse the habeas court's grant of post-conviction relief, contending that the trial court erred by not reviewing and denying Julian's amended petition under the heightened standard imposed by the PCRA. Alternatively, it asserts that Julian's petition fails under our prior post-conviction case law because A's recantation does not rise to the level that there is a substantial likelihood that a jury will render a different result on retrial. Julian cross-appeals, contending that the habeas court erred in denying post-conviction relief based on ineffective assistance of counsel, in admitting certain of the girls' out-of-court statements, and in refusing to admit expert testimony regarding N. We address each issue in turn.

I. APPLICABILITY OF THE PCRA TO JULIAN'®S AMENDED PETITION

{10 The State argues that because Julian amended his petition after the enactment of the PCRA, the habeas court erred by not reviewing Julian's amended petition under the heightened standard contained in the PCRA.

%11 Section 78-85a-108 of the PCRA provides, however, that "this chapter applies only to post-conviction relief proceedings filed on or after July 1, 1996." Utah Code Ann. § 78-85a-108 (1999). Julian's December 1995 petition for post-conviction relief will constitute the same proceeding until its final resolution on appeal. See Boucofski v. Jacobsen, 36 Utah 165, 172, 104 P. 117, 120 (1909) (stating that "[a] case is pending from the time of its commencement until its final determination on appeal"). Julian's amendment of the original petition is part of the original proceeding; it does not constitute a separate one. See Black's Law Dictionary 1204 (6th ed.1990) (stating that a proceeding includes "all possible steps in an action from its commencement to the execution of judgment"). Consequently, section 78-85a-108 precludes application of the PCRA to Julian's amended petition.

112 Even if the PCRA were silent as to its effective date, it still would not apply to Julian's amended petition. "[Sltatutory enactments which affect substantive or vested rights generally operate only prospectively [and] the substantive law to be applied throughout an action is the law in effect at the date the action was initiated." Dep't of Social Servs. v. Higgs, 656 P.2d 998, 1000 (Utah 1982). Law is substantive if it "creates, defines and regulates the rights and duties of the parties and ... may give rise to a cause for action, as distinguished from [procedural] law which pertains to and prescribes the practice and procedure or the legal machinery by which the substantive law is determined or made effective." Petty v. Clark, 118 Utah 205, 214, 192 P.2d 589, 593-94 (1948); see also Higgs, 656 P.2d at 1000-01 (stating that statutes "which do not enlarge, eliminate, or destroy vested or contractual rights apply not only to future actions but also to accrued and pending actions as well.") Section 78-85a-102 states that the PCRA is a "substantive legal remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies." As such, it replaces prior remedies that challenge a conviction or sentence for a criminal offense and may not be applied retroactively to Julian's post-conviction relief action. See Utah Code Ann. § 78-85a-102(1) (entitled "Replacement of Prior Remedies"). We therefore affirm the habeas court's decision not to apply the PCRA to Julian's amended petition.

II. JULIANS PETITION UNDER PRIOR POST-CONVICTION RELIEF LAW

113 Alternatively, the State argues that the trial court should have denied Julian's petition for relief under the post-conviction relief case law in effect prior to the enactment of the PCRA.

{ 14 While we have recognized that newly discovered evidence may warrant post-conviction relief, we have not addressed the standards that govern such decisions. See Hurst v. Cook, 777 P.2d 1029, 1036 (Utah 1989); Gallegos v. Turner, 17 Utah 2d 273, 275, 409 P.2d 386, 387 (Utah 1965). In its decision, the habeas court relied on the standards we use to determine whether to grant a new trial under rule 24 of the Utah Rules of Criminal Procedure. In that context, we require that newly discovered evidence (1) must be such as could not with reasonable diligence have been produced at trial, (2) must not merely be eumulative, (8) must not be used solely for impeachment purposes, and (4) must be such as to render a different result probable on retrial. See James, 819 P.2d at 793; State v. Worthen, 765 P.2d 839, 851 (Utah 1988).

115 In applying this standard to Julian's post-conviction relief claim, the habeas court followed a number of states that apply various combinations of these same four criteria to new evidence claims in both the eriminal trial and post-conviction relief settings. Seq, e.g., State v. Serna, 167 Ariz, 373, 807 P.2d 1109, 1110 (1991); Jones v. State, 591 So.2d 911, 915 (Fla.1991); Stuart v. State, 118 Idaho 865, 801 P.2d 1216, 1220 (1990); People v. Washington, 171 Ill.2d 475, 216 Ill.Dec. 773, 665 N.E.2d 1330, 1337 (1996); Powell v. State, 714 N.E.2d 624, 627 (Ind.1999); State v. Sims, 289 N.W.2d 550, 554-55 (Iowa 1976); State v. Bradley, 246 Kan. 316, 787 P.2d 706, 707 (1990); Woodruff v. State, 608 N.W.2d 881, 888 (Minn.2000); State v. Abe, 307 Mont. 233, 37 P.3d 77, 79 (2001); Callier v. Warden, 111 Nev. 976, 901 P.2d 619, 626 (1995); Hopfauf v. State, 575 N.W.2d 646, 647 (N.D.1998), overruled in part by Whiteman v. State, 643 N.W.2d 704 (N.D.2002); Brennan v. Vose, 764 A.2d 168, 173 (R.I.2001). We agree with these jurisdictions that the requirements that newly discovered evidence not be available at trial, not be merely cumulative, and not be used solely for impeachment purposes are equally applicable in the rule 24 and post-conviction relief settings.

116 With regard to the evidentiary impact that newly discovered evidence must have, we have stated that "[iJn order to sustain the granting of [post-conviction relief], something more is required than that the evidence might have justified the granting of a new trial had it been promptly disclosed.'' Ward v. Turner, 12 Utah 2d 310, 313, 366 P.2d 72, 74 (1961). Indeed,

in order to justify the [post-conviction] release of a convicted person ... the evidence of his innocence must be stronger than would be necessary in the first instance in support of a motion for a new trial, for special writs are applied for after the defendant's conviction has been affirmed or denied on appeal, and in a sense they invade the usual rules for the finality of judgments.

Id. Nothing in our pre-PRCA case law, however, suggests that newly discovered evidence must rise to the heightened standard required by the PRCA that "viewed with all the other evidence, the newly discovered material evidence demonstrates that no reasonable trier of fact could have found the petitioner guilty of the offense or subject to the sentence received." Utah Code Ann. § 78-35a-104(1)(e)(iv). This is an extremely heavy burden, one that we have generally reserved for the review of insufficiency of the evidence claims. See State v. Kerekes, 622 P.2d 1161, 1168 (Utah 1980) (stating that when petitioning this court to reverse on insufficiency of evidence grounds, appellant bears heavy burden of establishing "that the evidence is so inconclusive or insubstantial that reasonable minds must have entertained a reasonable doubt that [he] committed the crime" (emphasis added)). We have recognized that this high showing is necessary in those cases because "it is not within the prerogative of this Court to substitute its judgment for that of the fact-finder,'' State v. Lamm, 606 P.2d 229, 231 (Utah 1980); therefore, we do not "weigh conflicting evidence, the credibility of witnesses, or the weight to be given appellant's testimony," State v. Logan, 563 P.2d 811, 813-14 (Utah 1977). These restrictions do not exist in the post-conviction relief setting because there, the habeas court is a fact-finder charged with considering "both the substance of the proffered testimony and the testimony's probable weight.'' State v. Hoffhine, 2001 UT 4, ¶ 28, 20 P.3d 265 (quotations omitted).

117 Consequently, our pre-PCRA case law requires that newly discovered evidence demonstrate more than merely rendering a different result probable at retrial, but less than insuring that no reasonable trier of fact could have found the petitioner guilty of the offense. See Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356, 1376 n. 22 (1994) (suggesting a standard "higher than a probability but lower than beyond a reasonable doubt"). This intermediate burden has been articulated by the court of appeals as "when there is a substantial likelihood that had certain evidence been available at the time of trial, a different verdict would have resulted.'' Stewart v. State, 830 P.2d 306, 309 (Utah Ct.App.1992); Matthews v. Galetka, 958 P.2d 949, 949 (Utah Ct.App.1998), cert. denied, Matthews v. Warden, 982 P.2d 88 (Utah 1998) (affirming dismissal of petition for extraordinary relief); Casida v. DeLand, 866 P.2d 599, 599 (Utah Ct.App.1993) (affirming habeas court's denial of post-conviction relief). We believe the phrase "substantial likelihood" adequately describes this intermediate burden, and we will therefore use it to refer to instances where the evidence must be more compelling than merely rendering a different result probable on retrial but need not rise to the level of insuring that no reasonable trier of fact could have found the petitioner guilty. In summary, we hold that in order to merit post-conviction relief under our case law in effect prior to the enactment of the PCRA, newly discovered evidence (1) must be such that it could not with reasonable diligence have been produced at trial, (2) must not be merely cumulative, (8) must not be used solely for impeachment purposes, and (4) must render a different result substantially likely at retrial.

118 In granting Julian post-conviction relief, the habeas court did not apply these criteria as outlined. Although the ha-beas court did rule that the newly discovered evidence was not cumulative and that it was not available at trial, it did not consider whether the evidence's sole purpose was impeachment. Nor did it decide whether the evidence would make a different result substantially likely at trial, erroneously applying, instead, the rule 24 new trial standard. We therefore reverse the habeas court's granting of post-conviction relief to Julian and remand, directing it to determine whether (1) the new evidence in this case creates the substantial likelihood of a different result on trial and (2) the recantation evidence is solely for the purpose of impeachment.

119 We now address several issues likely to arise on remand. See James, 819 P.2d at 795.

A. Impeachment Evidence

€20 The State argues that Julian is not entitled to post-conviction relief because A's recantation is impeachment evidence as to N's trial testimony. We note, without deciding the issue, however, that the rule enunciated above and applied in the rule 24 arena precludes relief where the "only use [of newly discovered evidence] is impeachment." Worthen, 765 P.2d at 851. The same evidence often has more than one use. This rule merely precludes the granting of relief based on evidence which has as its only purpose the impeachment of another witness. If the trial court determines that the sole purpose of A's recantation is to impeach N's testimony, it should deny Julian's petition. If however, on remand, the habeas court determines that A's recantation, while having some impeachment effect on N's testimony, can also be used in an attempt to negate an essential element of the State's case or for some other non-impeachment purpose (a very conceivable finding given that Julian was convicted based on the combined weight of both girls' testimony and that A exhibited the only possible physical evidence of the crime), it should not deny the petition on this ground.

B. Substantial Likelihood of Recantation Testimony Rendering a Different Result on Retrial

1 21 The State also argues that Julian is not entitled to post-conviction relief because the fact that N has not recanted her testimony renders it impossible for Julian to show the substantial likelihood of a different result on retrial. It cites a number of newly discovered evidence cases where courts have denied relief because recantation testimony was offset by the testimony of other victims or eyewitnesses who had not recanted. See MT., Sr. v. State, 677 So.2d 1228 (1995); People v. Davenport, 283 A.D.2d Til, 650 N.Y.S.2d 418, 420 (N.Y.App.Div.1996). Under our case law, however, the fact that one or more witnesses have not recanted does not automatically mean that there is not a substantial likelihood of a different result on retrial. In determining whether there is a substantial likelihood, the habeas court should "consider both the substance of the proffered testimony and the testimony's probable weight" (quotations omitted). Hoff-hime, 2001 UT 4 at I 28, 20 P.8d 265; see also State v. Loose, 2000 UT 11, 118, 994 P.2d 1237 (stating that in recantation cases part of the determination regarding probable weight includes the likelihood that a jury would find the new evidence credible).

»

III. JULIANS ASSIGNMENTS OF ERROR

«[ 22 Julian contends that the habeas court committed error in denying post-conviction relief based on ineffective assistance of counsel, in admitting certain of the girls' out-of-court statements, and in refusing to allow expert testimony regarding N. He concedes that these issues would be moot if we ruled in his favor. Because we have remanded to the trial court for a determination on whether he merits post-conviction relief under the pre-PCRA law as outlined in this opinion, we do not address these contentions. Julian may raise them if there is a subsequent appeal.

CONCLUSION

1 23 The trial court did not err in failing to apply the PCRA to Julian's new evidence claims. We remand to the trial court to determine (1) whether Julian's newly discovered evidence can be used for a purpose other than impeachment and (2) whether the newly discovered evidence renders a different result at retrial substantially likely. If the trial court answers these questions in the affirmative, it should grant Julian's petition for post-conviction relief, set aside his convie-tions, and order a retrial.

1 24 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice RUSSON, and Justice WILKINS concur in Justice HOWE'S opinion.

      . Originally, the habeas court filed a "Ruling on Petitioner's Motion for New Trial." However, after the State filed an objection, the habeas court filed an "Order on Amended Petition for Extraordinary Relief Under URCP 65 C."


source: Caselaw Access Project

author: WILKINS, Justice:

license: Public Domain

text:
    2002 UT 60
    DAVIS COUNTY SOLID WASTE MANAGEMENT and Energy Recovery Special Service District, Plaintiff and Appellee, v. CITY OF BOUNTIFUL, Defendant and Appellant.
    No. 20010318.
    Supreme Court of Utah.
    July 2, 2002.
    Russell L. Mahan, John C. Ynchausti, Bountiful, for defendant.

      Larry S8. Jenkins, Sheri A. Mower, Salt Lake City, for plaintiff.
   WILKINS, Justice:

{1 This appeal requires us to interpret a section of the Utah Code that has since been superseded, Utah Code Ann. § 10-2415 (1986). Specifically, we must determine whether, under the statute, annexation occurred (1) when an annexation resolution was passed, or (2) when the resolution and plat were filed with the county recorder's office. The district court concluded that the statute provided for annexation upon filing. We affirm.

FACTUAL AND PROCEDURAL - BACKGROUND

12 The facts are undisputed. Bountiful City passed an annexation resolution on August 29, 1984, annexing an area of land in Davis County. However, the annexation resolution and an accompanying boundary de-seription were not filed with the Davis County Recorder until November 9, 1984. Before the resolution and boundary description were filed, the Davis County Solid Waste Management and Energy Recovery Service District ("Service District"), a special service district under Utah law, see Utah Code Ann. § 11-23-1 to -30 (1986), was created by the Davis County Commission on September 24, 1984. The Service District was created to provide waste management services in Davis County, specifically to households in unincorporated areas and households in municipalities that wished to be part of the special service district. Bountiful City opted not to be part of the Service District.

13 Pursuant to state law, the Service District is entitled to impose and collect a usage fee for the services or facilities it provides. Utah Code Ann. § 11-28-19 (1986) (amended 1988, 1990, and 2001, and renumbered as § 17A-2-1820). The Service District adopted, by resolution, a monthly household usage fee for those households serviced within the district. This fee took effect on July 1, 1995. The resolution was later amended on April 3, 1996, and further changes became effective on July 1, 1996, to include the imposition of a commercial use fee, also by resolution. Following a 1997 audit, the Service District concluded that Bountiful City had not remunerated it for fees to which the Service District considered itself entitled. The Service District made verbal and written demands for fees allegedly accrued since July 1, 1995, but Bountiful City refused to pay.

1 4 Consequently, the Service District sued Bountiful City seeking, among other things, a declaratory judgment that the geographical area in question was, and still is, actually part of the Service District, and not exelu-sively part of Bountiful City. The Service District insists that annexation of the territory did not occur when the resolution was passed because annexation could not have occurred until the annexation resolution and boundary description were filed with the county recorder. As a result, according to the Service District, because the Service District was created before the annexation resolution was filed on November 9, 1984, the territory was, and still is, part of the Service District.

5 Both parties moved for partial summary judgment. The district court granted partial summary judgment in favor of the Service District, concluding that, pursuant to section 10-4-415, annexation could not have occurred until the appropriate documents were filed with the county recorder, and therefore the disputed area became part of the Service District as of September 24, 1984. Eventually, the parties entered into a settlement agreement, settling some issues in dispute, but leaving open Bountiful City's right to appeal the district court's decision regarding when the disputed territory was annexed. Bountiful City appeals this ruling.

ISSUE PRESENTED

T 6 The only issue on appeal is whether, in granting summary judgment, the district court. correctly interpreted section 10-2-415 as it read in 1984 when the annexation resolution was passed and later recorded. The statute in question, Utah Code Ann. § 10-2-415 (1986), was enacted in 1979, see 1979 Utah Laws ch. 25 § 16, and amended in 1983, see 1983 Utah Laws ch. 69 § 1. It read as follows in 1984;

If: (1) an annexation proposed in the policy declaration, in the judgment of the municipality, meets the standards set forth in this chapter; and (2) no protest has been filed by written application by an affected entity within five days following the public hearing, the members of the governing body may by two-thirds vote adopt a resolution or ordinance of annexation in accordance with the terms of the policy declaration adopted by the governing body, and the territory shall then and there be annexed. If an annexation proposed in the policy declaration has been protested within the allowable time by application to the local boundary commission, the governing body is subject to the decisions of that commission unless overturned by an appeal to the district court. After receiving notification of approval of the proposed action from the commission or after complying with the terms of a conditional approval, the governing body may by two-thirds vote adopt a resolution or ordinance of annexation. If the territory is annexed, a copy of the duly certified transparent reproducible plat or map shall at onee be filed in the office of the county recorder, together with a certified copy of the resolution or ordinance declaring the annexation. On filing the maps or plats, the annexation shall be deemed and held to be part of the annexing municipality, and the inhabitants thereof shall enjoy the privileges of the annexing municipality.

Utah Code Ann. § 10-2415 (1986).

117 Bountiful City argues annexation of the geographical area in question occurred on August 29, 1984, when the city adopted the annexation resolution. Therefore, they reason, when the Service District was created on September 24, 1984, the Service District did not include the disputed territory because that area was already part of Bountiful City, having been annexed on August 29. Bountiful City contends that under the plain language of the statute, the territory was "then and there" annexed when the Bountiful City Council passed the annexation resolution, which Bountiful City deems the determinative legislative act. The recording of the annexation plat, according to the city, was merely a ministerial step. Bountiful City also insists that the court should attempt to harmonize the apparent contradictory language in the statute, but that if the statute cannot be harmonized, the annexation resolution must be given primacy over the ministerial act of recording.

18 The Service District claims that the statute required the annexation resolution, together with the required plat, to be filed for annexation to be complete. Therefore, according to the Service District, the unincorporated territory, including the disputed territory, became part of the Service District on September 24, 1984, because the district was created before the resolution and plat were filed with the Davis County Recorder on November 9, 1984. The Service District insists that under the plain language of the statute, annexation could not have occurred until the resolution and plat were filed. The Service District further contends that Utah case law supports its position, to which Bountiful City counters that the case law relied upon by the Service District is inapposite because it deals with statutes in effect before the statute at issue was enacted.

STANDARD OF REVIEW

¶ 9 We review the district court's grant of summary judgment for correctness. Summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c); see also, e.g., Kearns-Tribune Corp. v. Salt Lake County Comm'n, 2001 UT 55, ¶ 7, 28 P.3d 686. In reviewing a grant of summary judgment, we give the court's legal decisions no deference, reviewing for correctness. Kearns-Tribune Corp., 2001 UT 55 at ¶ 7, 28 P.3d 686. Specifically, a district court's interpretation of a statutory provision is a question of law that we review for correctness. State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, ¶ 8, 44 P.3d 680.

ANALYSIS

¶ 10 When we interpret statutes, our primary goal is to give effect to the legislature's intent. E.g., Day v. Meek, 1999 UT 28, ¶ 6, 976 P.2d 1202. To determine the legislature's intent, we look first to the statute's plain language. Id. We analyze the language of a statutory provision in light of other provisions within the same statute or act, and we attempt to harmonize the provisions in accordance with the legislative intent so as to give meaning to each provision. See id. One could claim that the interpretations argued by both Bountiful City and the Service District are reasonable, and therefore the statute is ambiguous. However, in considering the structure of this statute, and in order to give effect to each of the three sections of the statute as explained below, we conclude that only one interpretation, that annexation occurs upon filing, is reasonable.

1 11 Given the structure of the statute, we conclude that the legislature required a two-step annexation process. The first step of the process found in section 10-2415 specifies two alternate procedures imposed on the governing bodies of municipalities that must be followed to adopt an annexation resolution or ordinance. This first step differs depending on whether the annexation is protested. Second, regardless of whether or not the annexation was protested, the statute requires the resolution or ordinance declaring the annexation to be filed, together with the required plats or maps. Clearly the legislature intended filing to occur regardless of whether the annexation was protested.

¶ 12 Thus, our reading divides the statute into the following three sections:

[I.] If: (1) an annexation proposed in the policy declaration, in the judgment of the municipality, meets the standards set forth in this chapter; and (2) no protest has been filed by written application by an affected entity within five days following the public hearing, the members of the governing body may by two-thirds vote adopt a resolution or ordinance of annexation in accordance with the terms of the policy declaration adopted by the governing body, and the territory shall then and there be annexed.
[IL] If an annexation proposed in the policy declaration has been protested within the allowable time by application to the local boundary commission, the governing body is subject to the decisions of that commission unless overturned by an appeal to the district court. After receiving notification of approval of the proposed action from the commission or after complying with the terms of a conditional approval, the governing body may by two-thirds vote adopt a resolution or ordinance of annexation.
[III] If the territory is annexed, a copy of the duly certified transparent reproducible plat or map shall at onee be filed in the office of the county recorder, together with a certified copy of the resolution or ordinance declaring the annex ation. On filing the maps or plats, the annexation shall be deemed and held to be part of the annexing municipality, and the inhabitants thereof shall enjoy the privileges of the annexing municipality.

Utah Code Ann. § 10-2415 (1986). In order to give effect to the third section, the filing section, the statute must be construed so that annexation occurs upon filing. To construe the statute otherwise, so that annexation occurs upon passage of the annexation resolution or ordinance, would render the filing requirement virtually meaningless.

113 First, the statutory language mandates immediate filing and indicates that filing is necessary before the annexation process is complete. Under the statute, the first step of annexation oceurs upon adoption of a resolution or ordinance of annexation. If annexation is not protested, a two-thirds vote from the local governing body is necessary to adopt an annexation resolution. Likewise, even if annexation is protested and a boundary commission must approve the annexation, the local governing body must still resolve to annex by a two-thirds vote. Therefore, regardless of whether a proposed annexation was protested, in order for a geographical area to be annexed, the local governing body must, by two-thirds vote, adopt a resolution or ordinance of annexation.

1 14 Then, once the local governing body- and the boundary commission, if necessary-has approved the annexation, the second step of annexation requires filing with the county recorder. The language explicitly requires that "a copy of the duly certified transparent reproducible plat or map shall at once be filed in the office of the county recorder, together with a certified copy of the resolution or ordinance declaring the annexation." § 10-2415 (1986) (emphasis added). The legislature mandated that the resolution and plats or maps be filed immediately following the passage of the resolution.

{15 Second, specific statutory language states that filing is necessary before the "privileges" of annexation can be enjoyed, and further language states that annexation "shall be deemed and held to be part of the annexing municipality" only after filing. § 10-2-415 (1986). Under the statute, whatever privileges or benefits were to be had from annexation could not be taken advantage of until filing. Indeed, the statutory language indicates that "the inhabitants [of the annexation] shall enjoy the privileges of the annexing municipality [upon filing]." § 10-2-415 (1986). The plain language also indicates that not until "filing [of] the maps or plats [shall] the annexation ... be deemed and held to be part of the annexing municipality." § 10-2-415 (1986). These two clauses, suggesting that the annexed area was not "deemed and held to [have been] part of the annexing municipality," and that privileges of the annexation were not to be enjoyed until filing occurred, persuade us that the legislature did not intend annexation to be final until filing.

1 16 Third, interpreting the statute so that annexation occurs upon filing gives effect to the concept of public notice. The statute encourages immediate filing in order to place the public on notice that the territory had been annexed under the statutory scheme. Thus, Bountiful City had to file the resolution and the required plats or maps in order for the public to be on notice that the area in dispute had been incorporated into Bountiful City. If we were to interpret the statute so that annexation occurred upon passage of the resolution, the public would be unaware that the land had been annexed until the proper documents were filed, unless they were present at the meeting. Interpreting the statute to make annexation effective upon filing gives effect to this notion of public notice.

1 17 Bountiful City argues that to interpret the statute so that annexation occurs upon filing does not give effect to the clause in the first section that "the territory shall then and there be annexed" upon passage of an annexation resolution by the governing body. However, we interpret this "then and there" language to mean that annexation, as it pertains to the governing body, has occurred upon passage of an annexation resolution or ordinance, but annexation as it pertains to the public has not. In other words, as applied to the governing body that passed the annexation resolution, the territory is then and there annexed; but as to the public, the territory is not yet annexed until filing. The property is annexed as to the governing body because the governing body is then required to continue to follow the annexation statute and file the resolution or ordinance with the required plats: or maps. Thus, in order to disconnect a territory from a municipality, the statutory process must be followed. See Utah Code Ann. §§ 10-2-501 to -509 (1986) (setting forth the process by which territory within a municipality could be disconnected from the municipality). The governing body cannot simply fail to file the required doeu-ments to then prevent annexation. Thus, as to the governing 'body, the territory is "then and there" annexed upon passage of the annexation resolution, and the annexation is binding upon it. The annexation is not binding on the public, however, until the required documents are filed, thereby placing the public on notice of the annexation.

T18 This holding, that annexation occurred upon filing, is consistent with other parts of chapter 2, title 10 of the Utah Code in effect in 1984 that also required filing before incorporation, disconnection, and consolidation of municipalities-actions that also impact municipal boundaries-were deemed complete. See Utah Code Ann. § 10-2-109 (1986) (explaining that towns containing more than 100 but less than 800 people may incorporate by filing a petition with the board of county commissioners, and requiring that the petition include the "legal de-seription and the boundaries of the territory" and be filed with the county recorder before the incorporation "shall be complete"); Utah Code Ann. § 10-2-508 (1986) ("On filing of the articles of amendment required by § 10-2-507 with the county recorder and lHeuten-ant governor, disconnection shall be complete."); Utah Code Ann. § 10-2-611 (1986) ("On filing the articles of consolidation with the lieutenant governor, the incorporation of the new municipality shall be complete and the original municipalities involved in the consolidation shall be deemed to be disincor-porated.").

{19 Finally, Bountiful City claims that annexation should occur upon passage of the annexation resolution because passage of the annexation resolution was the determinative legislative act and filing is merely a ministerial function. We disagree with this reasoning. The determination of municipal boundaries is indeed a legislative function. "More accurately, [however,] the determination of municipal boundaries is a function of the state legislature, as opposed to a local legislative body." Kearns-Tribune Corp., 2001 UT 55 at T21, 28 P.3d 686. "This is because local governmental bodies, as political subdivisions of the state, have no inherent control over their own boundaries as they derive their powers from the State." Id. (citations omitted). Thus, it is not the alleged municipal legislative act that is determinative. Rather, when the state legislature enacted the statutory framework that controlled the annexation process in 1984, the legislature delegated, to a certain extent, the authority over annexation, see, eg., Sandy City v. City of South Jordan, 652 P.2d 1816, 1318-19 (Utah 1982), and it is the interpretation of the statute delegating the annexation process to local municipalities that controls this case.

CONCLUSION

1 20 The district court was correct to conclude that under the statute, Utah Code Ann. § 10-2415 (1986), annexation occurred upon filing. The decision of the district court is affirmed.

121 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice RUSSON concur in Justice WILKINS opinion.


author: RUSSON, Justice.

text:
    2002 UT 62
    Mark BAKOWSKI, Plaintiff, v. MOUNTAIN STATES STEEL, INC., Defendant, Third-Party Plaintiff, Appellant, and Cross-Appellee, v. Voest-Alpine Services & Technologies Corp., Third-Party Defendant, Appellee, and Cross-Appellant.
    No. 20000608.
    Supreme Court of Utah.
    July 9, 2002.

      Mark Bakowski, pro se.
    Donald L. Dalton, Salt Lake City, for Mountain States.
    Terry M. Plant, H. Justin Hitt, Jason M. Kerr, Salt Lake City, for Voest-Alpine.
   RUSSON, Justice.

T1 Third-party plaintiff Mountain States Steel, Inc. ("Mountain States"), appeals from an order granting summary judgment to third-party defendant Voest-Alpine Services & Technologies Corporation ("Voest-Al-pine"). Voest-Alpine cross-appeals the denial of its first motion for summary judgment and the trial court's refusal to award Voest-Alpine additional attorney fees. We affirm.

BACKGROUND

2 On January 19, 1994, Voest-Alpine entered into an agreement to lease a commercial building from Mountain States, said lease to commence on March 1, 1994, and to terminate twelve months later unless terminated sooner or extended pursuant to any provision of the lease agreement. The lease agreement obligated Mountain States to complete by March 1, 1994, fifteen designated improvements essential to Voest-Alpine's tenancy. Further, the lease agreement required Voest-Alpine to obtain and keep in force during the term of the lease an insurance policy insuring both Mountain States and Voest-Alpine against any lability arising out of the ownership, use, or occupancy of the leased building.

€ 3 The agreement provided that if Mountain States failed to complete the improvements to the premises on time as agreed, Voest-Alpine had the option to perform the work itself or to assist in order to keep the Mountain States improvements on time, and if Mountain States could not deliver the premises on March 1, 1994, Voest-Alpine would not be obligated to pay rent until the premises were delivered.

T4 The agreement also provided that if Voest-Alpine failed to procure and maintain the required insurance, Mountain States had the option to procure and maintain such insurance at the expense of Voest-Alpine or, in the alternative, to declare Voest-Alpine's failure to procure insurance a material breach of the lease.

15 In a subparagraph entitled "Waiver of Subrogation," the lease agreement provided that Mountain States and Voest-Alpine waived any and all rights of recovery against each other for loss or damage where such loss or damage was insured against "under any insurance policy in force at the time of such loss or damage." It further provided that upon obtaining the required policy of insurance, notice would be given to the insurance carrier of the "waiver of subrogation" and endorsements to the policy recognizing the same would be procured.

16 March 1, 1994, came and went, and Mountain States had not completed the required improvements, thus precluding Voest-Alpine from taking possession of the leased property at that time, and Voest-Alpine had not procured the required insurance. Voest-Alpine finally took possession of the premises on April 6, 1994.

T7 Meanwhile, on March 4, 1994, an accident on the subject premises seriously injured two of Voest-Alpine's employees, Mark Bakowski ("Bakowski") and Alfonse Ramirez ("Ramirez"), resulting in liability claims against Mountain States. Voest-Alpine had directed those employees to assist Mountain States in completing the required improvements on the lease premises for Voest-Al-pine's occupancy. The accident occurred while Bakowski and Ramirez were working in a "man-basket" suspended by a cable about forty feet above a concrete floor. The cable snapped, and the men plummeted to the floor, sustaining severe and permanently disabling injuries.

Bakowski and Ramirez made claims against Mountain States. Mountain States tendered the defense of these claims to Voest-Alpine under the lease agreement that obligated Voest-Alpine to provide insurance for Mountain States. Voest-Alpine refused to defend Mountain States, denying any liability and any obligation to indemnify Mountain States.

T9 Mountain States, through its own insurers, settled with Ramirez for $1,182,500 in exchange for a release of any claims Ramirez could assert against Mountain States arising from the accident. However, Bakowski filed this action against Mountain States to recover for his injuries resulting from the man-basket incident. Mountain States answered the complaint and filed a third-party action against Voest-Alpine, alleging breach of contract and indemnification because of its failure to procure insurance protecting Mountain States against such claims as agreed in the lease agreement. After mediating Ba-kowski's claims, Mountain States, through its own insurers, settled with Bakowski for $503,714, but Mountain States' third-party claim against Voest-Alpine remained pending before the trial court.

{10 Initially, both Mountain States and Voest-Alpine moved for summary judgment. The trial court granted Mountain States' summary judgment motion and denied Voest-Alpine's summary judgment motion, concluding that the lease commenced on March 1, 1994, and that any duties under the lease to procure insurance commenced on that date. Subsequently, both parties again moved for summary judgment. On these motions, the trial court granted summary judgment to Voest-Alpine, concluding that the "waiver of subrogation" provision contained in the lease agreement barred Mountain States' claims.

T 11 Subsequently, pursuant to a provision in the lease agreement, Voest-Alpine moved for attorney fees as the prevailing party. Voest-Alpine sought an award of $30,206.45 for fees paid to its Salt Lake attorneys and $23,637.50 paid to its Pittsburgh, Pennsylvania, attorneys. The trial court granted Voest-Alpine's motion for attorney fees in part, concluding that only $30,206.45 was reasonable, and ordered Voest-Alpine's counsel to prepare a proposed judgment awarding the fees. Preparing the proposed judgment, counsel discovered that Voest-Alpine actually paid $38,380 to its Salt Lake counsel, and because of an arithmetic error, Voest-Alpine undervalued the attorney fees it claimed. Thereupon, counsel prepared both a proposed findings of fact and conclusions of law and a proposed judgment that awarded Voest-Alpine $38,380. The trial court signed the proposed award but crossed out the increased amount and replaced it with the original amount of $30,206.45, consistent with its previous determinations.

112 Mountain States appeals, contending that the trial court erred in granting Voest-Alpine summary judgment because the waiver of subrogation provision contained in the lease agreement did not bar Mountain States' claim. Specifically, Mountain States contends that the waiver of subrogation provision is conditional, applying in this case only if Mountain States' insurers were notified that the lease contained the waiver of subro-gation provision and recognized it in an endorsement to Mountain States' policy, and Mountain States contends that the waiver is inapplicable because these required conditions were unsatisfied.

13 Voest-Alpine cross-appeals, asserting that the trial court erred in denying its first motion for summary judgment by concluding that the lease term commenced on March 1, 1994, instead of April 6, 1994, when Voest-Alpine took possession of the leased premises. Specifically, Voest-Alpine contends that because the lease did not actually commence until Voest-Alpine took possession on April 6, 1994, it was not required to procure insurance until that date, and Voest-Alpine is therefore not contractually liable to Mountain States for the settlement amounts Mountain States paid to Bakowski and Ramirez. Additionally, Voest-Alpine argues that the trial court abused its discretion in reducing the attorney fee award contained in the proposed judgment when the proposed judgment was supported by an affidavit.

STANDARD OF REVIEW

114 Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c); see also Ault v. Holden, 2002 UT 38, 1 15, 44 P.3d 781. Whether the trial court properly granted summary judgment is a question of law that we review for correctness, according no deference to the trial court's legal conclusions. Holmes Dev., LLC v. Cook, 2002 UT 38, I 21, 48 P.3d 895. In making that determination, " 'we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party'" Ault, 2002 UT 83 at T 15, 44 P.8d 781 (quoting DCM Imv. Corp. v. Pinecrest Inv. Co., 2001 UT 91, 16, 34 P.3d 785).

ANALYSIS

I. DATE LEASE COMMENCED

115 The first issue on appeal is whether the trial court erred in holding that the lease agreement executed by Voest-Al-pine and Mountain States commenced on March 1, 1994. According to the lease agreement, Voest-Alpine was required to "obtain and keep in force during the term of this lease" an insurance policy that insured both Mountain States and Voest-Alpine against any liability arising out of the ownership, use, or occupancy of the leased premises, which the trial court concluded would have covered the injuries of Bakowski and Ramirez. (Emphasis added.) If the lease term did not commence on or before March 4, 1994, the date of the man-basket incident that injured Bakowski and Ramirez, then Voest-Alpine would have no obligation to Mountain States for the settlement amounts paid to Bakowski and Ramirez because Voest-Alpine's contractual obligation to purchase liability insurance would not have been in effect on that date. Voest-Alpine contends that the lease term did not commence until Mountain States actually delivered possession of the premises. The parties do not dispute that Mountain States did not deliver possession of the premises until April 6, 1994, after Bakowski and Ramirez were injured. Voest-Alpine further contends that it would be inequitable for the lease term to commence before Mountain States delivered possession to Voest-Alpine because Voest-Al-pine would be required to insure land that it did not possess.

{116 The date on which the lease term commenced is a matter of contract interpretation. When interpreting a contract, a court first looks to the contract's four corners to determine the parties' intentions, which are controlling. Cent. Fla. Invs., Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 12, 40 P.3d 599; see also Winegar v. Froerer Corp., 813 P.2d 104, 108 (Utah 1991). If the language within the four corners of the contract is unambiguous, then a court does not resort to extrinsic evidence of the contract's meaning, and a court determines the parties' intentions from the plain meaning of the contractual language as a matter of law. Cent. Fla. Invs., 2002 UT 3 at ¶ 12, 40 P.3d 599; Zions First Nat'l Bank v. Nat'l Am. Title Ins. Co., 749 P.2d 651, 653 (Utah 1988). Unless extrinsic evidence regarding the interpretation of a contract was received by the trial court, we review a trial court's plain language contract interpretation for correctness. Gibbs M. Smith, Inc. v. United States Fid. & Guar. Co., 949 P.2d 337, 340 (Utah 1997); Copper State Leasing Co. v. Blacker Appliance & Furniture Co., 770 P.2d 88, 90 (Utah 1988); see also Nova Cas. Co. v. Able Constr., Inc., 1999 UT 69, ¶ 6, 983 P.2d 575. Moreover, a court will look to extrinsic evidence only when the contract language is ambiguous. Cent. Fla. Invs., 2002 UT 3 at ¶ 12, 40 P.3d 599; Winegar, 813 P.2d at 108. "A contract provision is ambiguous if it is capable of more than one reasonable interpretation because of 'uncertain meanings of terms, missing terms, or other facial deficiencies'" Winegar, 813 P.2d at 108 (quoting Faulkner v. Fornsworth, 665 P.2d 1292, 1293 (Utah 1983)).

{17 In the instant case, the contract language with respect to when the lease began is clear and unambiguous. Paragraph 2 of the lease agreement provides:

21. Term.
The term of this lease shall be for a period commencing on the ist day of March, 1994, and terminating twelve (12) months thereafter, unless sooner terminated or extended pursuant to any provision hereof.

According to the plain language of paragraph 2.1, the lease term commenced on March 1, 1994, and was to terminate twelve months later unless extended by the lease agreement itself. In the event that the premises were not ready for Voest-Alpine's possession on March 1, 1994, another provision of the lease provides Voest-Alpine a remedy. Paragraph 2.8 states in pertinent part:

2.3. Delay in Commencement.
The parties acknowledge that time is of the essence of this lease, particularly with respect to completion of improvements and commencement of occupaney. [Mountain States] agrees to make the improvements . set forth in Exhibit "C" and its attachments pursuant to the schedule for completion set forth therein .... If [Mountain States] fails to comply in any respect with the Completion Schedule, [Voest-Alpine] may, at its sole option, perform or cause to be performed any work or service and purchase or acquire any materials necessary to keep the [required improvements] on schedule. ... If for any reason, [Mountain States] cannot deliver possession of the premises to [Voest-Alpine] on March 1, 1994, [Voest-Alpine] shall not be obligated to pay rent ... until possession is delivered. Possession cannot be delivered until the completion of item numbers 2, 3, 6, 8, 9, 10, 11, and 15 of Attachment 1 to Exhibit "C".

(Emphasis added.)

118 This paragraph does not extend or alter the commencement date of the lease. Rather, paragraph 2.3 suspends only Voest-Alpine's duty to pay rent until possession is delivered in the event of delay. While the caption to paragraph 28 reads "Delay in Commencement," the words are meaningless inasmuch as paragraph 15.5 unequivocally states that the "captions are not a part of this lease."

119 In fact, it is reasonable that the duty to procure insurance commenced on March 1, 1994; On that date, Voest-Alpine had the option to either complete the improvements itself or assist Mountain States in completing the improvements in the event that Mountain States did not finish the improvements by the lease commencement date. If the parties intended that delay of possession would delay the commencement date of the lease instead of delaying only the payment of rent, the parties could have clearly drafted the contract to manifest that intent. We will not make a better contract for the parties than they have made for themselves,. Rio Algom Corp. v. Jimeo Ltd., 618 P.2d 497, 505 (Utah 1980). Nor will we avoid the contract's plain language to achieve an "equitable" result. See Utah Coal & Lumber Rest., Inc. v. Outdoor Endeavors Unlimited, 2001 UT 100, 1112, 40 P.8d 581 (stating that "equitable relief should not be used to 'assist one in extricating himself from cireumstances which he has created" (quoting Battistone v. Am. Land & Dev. Co., 607 P.2d 887, 889 (Utah 1980))).

120 Therefore, the trial court correctly concluded that the lease term commenced on March 1, 1994. Consequently, paragraph 6.1 of the lease required Voest-Alpine to procure insurance that would have insured Mountain States for claims arising out of the ownership, use, or occupancy of the leased premises.

II. WAIVER OF SUBROGATION

{121 The next issue on appeal is whether the trial court erred in granting Voest-Alpine summary judgment when it concluded that the waiver of subrogation clause of paragraph 6.4 of the lease agreement bars Mountain States "from bringing this action to recover the sums it" paid to Bakowski and Ramirez. Specifically, the trial court concluded that while Voest-Alpine was contractually obligated to obtain insurance that would have covered the injuries suffered by Bakowski and Ramirez, Mountain States waived the subrogation rights of its insurers by agreeing to paragraph 6.4 of the lease agreement. Paragraph 6.4 of the lease agreement provides:

Warwer of Subrogation. [Voest-Alpine] and [Mountain States] each waive any and all rights of recovery against the other, or against the officers, employees, agents and representatives of the other, for loss of or damage to such waiving party or its property or the property of others under its control where such loss or damage is insured against under any insurance policy in force at the time of such loss or damage. [Voest-Alpine] and [Mountain States] shall, upon obtaining the policies of insurance required hereunder, give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this lease, and shall obtain endorsements to the respective policies recognizing the waiver.

The court further concluded that Mountain States waived its insurers' subrogation rights regardless of whether notice was ever given to those insurers because "[the notice provision of the waiver of subrogation clause does not create any conditions precedent to the applicability of the waiver of subrogation clause."

$22 Subrogation is a doctrine conceived in equity that " 'allows a person or entity [that] pays the loss or satisfies the claim of another under a legally cognizable obligation or interest to step into the shoes of the other person and assert that person's rights'" State Farm Mut. Auto. Ins. Co. v. Northwestern Nat'l Ins. Co., 912 P.2d 983, 985 (Utah 1996) (quoting Educators Mut. Ins. Ass'n v. Allied Prop. & Cas. Ins. Co., 890 P.2d 1029, 1030 (Utah 1995)). In Utah, by statute an insurer can bring a subrogation action in the name of its insured. Utah Code Ann. § 31A-21-108 (2001). The insurer sue-ceeds to the insured's cause of action against a responsible third party. Id.; see also State Farm Mut. Auto. Ins., 12 P.2d at 985; Educators Mut. Ins. Ass'n, 890 P.2d at 10831. Although generally governed by equitable principles, the "doctrine can be modified by contract." Hill v. State Farm Mut. Auto. Ins. Co., 765 P.2d 864, 866 (Utah 1988).

€23 An insurer's subrogation right to recover from a responsible third party the amount the insurer paid to or on behalf of its insured derives from the insurance contract between the insurer and the insured, not from any contract or relationship between the insurer and the third party. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. John Zink Co., 972 S.W.2d 839, 843-44 (Tex.App.1998); 44 Am.Jur.2d Insurance § 1795 (1982). In asserting any purported subrogation right against the third party, the insurer can be "subrogated to only such rights as the insured possesses," 44 Am. Jur.2d Insurance § 1795; see also E.H. Ashley & Co. v. Wells Fargo Alarm Servs., 907 F.2d 1274, 1277 (1st Cir.1990); Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 972 S.W.2d at 843-44, because the insurer, as subrogee, "steps into the shoes" of the insured, State Farm Mut. Auto. Ins. Co., 912 P.2d at 985. Because the insurer can succeed only to those rights or causes of action that the insured possesses against the third party, the insurer is subject to any viable defenses the third party can assert against the insured, Fashion Place Inv., Ltd. v. Salt Lake County, 776 P.2d 941, 945 (Utah Ct.App.1989); 44 Am.Jur.2d Insurance § 1795, including a release from liability or a waiver of a cognizable cause of action, Ind. Ins. Co. v. Erhlich, 880 F.Supp. 513, 517 (W.D.Mich.1994); 44 Am.Jur.2d Insurance § 1810. Accordingly, an insured can generally waive an insurer's subrogation rights against a particular third party through a pre-loss agreement with that third party in which the insured agrees to exculpate the third party from any liability for which the insurer may seek subrogation. Ind. Ins. Co., 880 F.Supp. at 516-19; Richmond Steel, Inc. v. Legal & Gen. Assurance Soc., Ltd., 821 F.Supp. 793, 799-802 (D.P.R.1993); Emery Waterhouse Co. v. Lea, 467 A.2d 986, 994 (Me.1983); Great N. Oil Co. v. St. Paul Fire & Marine Ins. Co., 291 Minn. 97, 189 N.W.2d 404, 406-07 (1971); Dolphine Mfg., Inc. v. Tehaar, 404 N.W.2d 295, 297 (Minn.Ct.App.1987); Cont'l Ins. Co. v. Boraie, 288 N.J.Super. 347, 672 A.2d 274, 277-78 (Ct. Law Div.1995); Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 972 S.W.2d at 843-44; Interstate Fire Ins. Co. v. First Tape, Inc., 817 S.W.2d 142, 145 (Tex.App.1991); Touchet Valley Grain Growers, Inc. v. Opp & Seibold Gen. Constr., Inc., 119 Wash.2d 334, 831 P.2d 724, 728 (1992) (en banc); Millican of Wash., Inc. v. Wienker Carpet Serv., Inc., 44 Wash.App. 409, 722 P.2d 861, 863-64 (1986); Lee R. Russ & Thomas F. Segalla, 16 Couch on Insurance 3d § 224:76 (2000) [hereinafter Couch ]; see also Harlington Realty Corp. v. S.L.G. Discount Corp., 162 A.D.2d 176, 556 N.Y.S.2d 308, 309 (App.Div.1990) (denying waiver of subrogation because waiver was conditional and condition failed). As explained in Couch:

Because an essential element of subrogation is that the insured have a viable claim against a third party, the insured's enforceable pre-loss release of any right to hold a particular third party responsible for damages in a given cireumstance has the effect of preventing the insurer's sub-rogation rights from ever arising upon its payment of that loss to the insured. Accordingly, an insured may defeat an insurance company's rights of subrogation by entering into an agreement of release with the [third party] before or after the policy is issued, but prior to loss.

Couch § 224:76 (footnotes omitted).

1 24 The rule allows contracting parties to retain their autonomy in making and executing contracts, including agreements releasing each other from liability; it also allows insurers to protect themselves from such waivers of subrogation: Insurers can protect themselves by (1) inserting an exclusion into their policies that permits the insurer to deny coverage if an insured waives the insurer's subrogation rights, (2) raising premiums to offset outlays incurred from the loss of their subrogation rights, (8) investigating whether a potential insured has already waived any subrogation rights, (4) requiring insureds to warrant at the time a policy is issued that the insured has not, and will not, waive the insurers' subrogation rights, and (5) obtaining reinsurance to cover any waiver of subrogation rights.

T25 Inasmuch as an insured can waive the subrogation rights of its insurer in a pre-loss agreement, we now turn to whether Mountain States, as insured, waived the subrogation rights of its insurers in paragraph 6.4. To determine whether the trial court correctly concluded that Mountain States waived the subrogation rights of its insurers, we review the trial court's plain language contract interpretation for correctness. Gibbs M. Smith, Inc. v. United States Fid. & Guar. Co., 949 P.2d 387, 340 (Utah 1997); see also Nova Cas. Co. v. Able Constr., Inc., 1999 UT 69, 1 6, 983 P.2d 575.

126 Paragraph 6.4 of the lease agreement provides:

Waiwer of Subrogation. [Voest-Alpine] and [Mountain States] each waive any and all rights of recovery against the other, or against the officers, employees, agents and representatives of the other, for loss of or damage to such waiving party or its property or the property of others under its control where such loss or damage is insured against under any insurance policy in force at the time of such loss or damage. [Voest-Alpine]l and [Mountain States] shall, upon obtaining the policies of insurance required hereunder, give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this lease, and shall obtain endorsements to the respective policies recognizing the waiver.

Mountain States contends that this paragraph does not waive the subrogation rights of its insurers because (1) the waiver of subrogation was conditional and the conditions precedent were not met, and (2) paragraph 6.4 applies only to insurance required by the lease.

127 First, Mountain States asserts that the first sentence of paragraph 6.4 does not independently effectuate a waiver of subrogation, but is inextricably connected to the second sentence, which "ensures" a waiver of subrogation. However, Mountain States continues, the second sentence conditions the applicability of the waiver on notice to the insurance carrier that the lease agreement waives subrogation and on the insurer's recognizing the waiver in endorsements to the relevant insurance policies. It is undisputed that Mountain States' insurers did not endorse the waiver.

128 However, the first sentence of paragraph 6.4 independently effectuates a waiver of subrogation. That sentence unequivocally provides that Mountain States and Voest-Alpine mutually "waive any and all rights of recovery against the other ... for loss of or damage to such waiving party ... where such loss or damage is insured against under any insurance policy in force at the time of such loss or damage." (Emphasis added.) According to the plain language, Mountain States waived all causes of action against Voest-Alpine to recover for damages that were paid under any insurance policy. See Richmond Steel, Inc., 821 F.Supp. at 800. Because a subrogee insurer can succeed only to the rights of its insured and because all defenses available to a third party against the insured can be used against the subrogee insurer, it necessarily follows that in this case Mountain States' insurers are also precluded from pursuing a subrogation action in Mountain States' name to recover for damages against Voest-Alpine that were paid by Mountain States' insurers. See id. It is therefore irrelevant that the first sentence does not mention that the waiver applies to insurers also.

1 29 As for the second sentence, it does not summarily invalidate the waiver if notice was not afforded to Mountain States' insurers or if the insurers did not endorse the waiver. Indeed, this sentence requires that notice be afforded to insurers and that those insurers recognize the waiver in endorsements to the respective policies, but paragraph 6.4 does not condition the validity of the waiver of subrogation upon the provision of notice or upon the procurement of the required endorsements. In other words, the waiver is independent of the lease's notice and endorsement requirements.

30 Second, Mountain States argues that the waiver of subrogation applies only to insurance required by the lease. However, according to its plain language, the first sentence of paragraph 6.4 applies to any insurance, regardless of whether that insurance is required by the lease. Mountain States explicitly waived all of its and its insurer's "rights of recovery" against Voest-Alpine if the damage or loss from which such rights derive is covered by "any insurance policy in force at the time of such loss or damage." (Emphasis added.) The term "any insurance policy" is expressly and intrinsically unlimited and therefore necessarily includes the policies that paid Bakowski and Ramirez on behalf of Mountain States.

131 Moreover, Mountain States' insurance is arguably "required by the lease." Mountain States had the option to purchase insurance at Voest-Alpine's expense if Voest-Alpine failed to procure the required insurance. Because Mountain States used its insurance to pay for the injuries as a substitute for insurance that it asserts Voest-Alpine was required to purchase under paragraph 6.1, it appears that Mountain States exercised the option irrespective of whether the insurance was purchased before or after March 1, 1994, when the lease commenced. Therefore, because an insurance policy covered these injuries, Mountain States waived its and its insurers' rights to recover against Voest-Alpine.

132 In sum, paragraph 6.4 validly waived the subrogation rights of Mountain States' insurers. Thus, the trial court correctly granted summary judgment to Voest-Alpine on the subrogation claim.

III. ATTORNEY FEES

¶ 83 The final issue on appeal is whether the trial court abused its discretion in awarding Voest-Alpine $30,206.45 in attorney fees instead of $38,880. The trial court has broad discretion in determining what constitutes a reasonable attorney fee once it has been determined that a party is legally entitled to a fee award, and we will not reverse a trial court's determination of whether a fee is reasonable absent an abuse of discretion. R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 20, 40 P.3d 1119. In addition, we review a trial court's calculation of reasonable attorney fees for an abuse of discretion. Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988).

134 In Utah, "attorney fees are generally not recoverable 'unless authorized by statute or contract'" Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 69, 44 P.3d 663 (quoting Faust v. KAI Techs, Inc., 2000 UT 82, ¶ 17, 15 P.3d 1266); see also Ault v. Holden, 2002 UT 83, ¶ 47, 44 P.3d 781. In this case, paragraph 15.18 of the lease agreement provides, "If either party brings an action to enforce the terms hereof or declare rights hereunder, the prevailing party shall be entitled to its reasonable attorney fees."

185 In this case, after the trial court granted Voest-Alpine's motion for summary judgment, Voest-Alpine moved for attorney fees in the amount of $30,206.45 for its Salt Lake counsel and $23,637.50 for its Pitts, burgh counsel.. In a signed memorandum decision dated September 11, 2000, the trial court awarded attorney fees for Voest-Al-pine's Salt Lake counsel only and explained:

This Court has carefully reviewed both affidavits submitted for attorney fees. [Voest-Alpine's] claim [to attorney fees for its Salt Lake counsel is based upon! a reasonable expenditure of time ... on a case of this complexity. The hourly rates assessed are well within the fees normally charged in this area for this type of litigation. The total bill [charged by Voest-Alpine's Salt Lake counsel] of $30,206.45[ ] represents a reasonable fee incurred in the defense of the third[-Iparty action maintained by [Mountain States]... .

In connection therewith, the trial court ordered Voest-Alpine's counsel to prepare "appropriate findings and a judgment." While preparing the judgment as directed, Voest-Alpine's counsel discovered that Voest-Al-pine's original motion for attorney fees "inadvertently" omitted $8,178.55 due to an alleged arithmetic error and a change in billing systems. To correct the error, Voest-Alpine submitted to the trial court proposed findings of fact and conclusions of law stating that Voest-Alpine actually incurred a total of $38,380 in attorney fees defending this litigation, which were supported by affidavits, and Voest-Alpine submitted a proposed judgment awarding Voest-Alpine attorney fees in that amount. Before signing the proposed documents, the trial court corrected both documents, awarding Voest-Alpine only $30,206.45 in conformity with the trial court's original reasonableness determination.

'I 36 On appeal, Voest-Alpine contends that the trial court abused its discretion by failing to award Voest-Alpine the augmented attorney fee of $38,880 when this increased award was supported by affidavits in the record, this amount constituted a reasonable fee, and the trial court failed to explain why it refused to award the additional $8,178.55.

137 The trial court did not abuse its discretion in awarding only $30,206.45. Before Voest-Alpine submitted the proposed judgment awarding Voest-Alpine the increased amount, the trial court determined, with explanation, that $30,206.45 was reasonable and ordered Voest-Alpine's counsel to prepare a judgment awarding Voest-Alpine attorney fees in conformity with that ruling. See Utah R. Jud. Admin. 4-504(1) (providing that party must "file with the court a proposed order, judgment, or decree in conformity with the ruling." (emphasis added)). By unilaterally submitting a proposed award that increased the award from the trial court's ruling, Voest-Alpine attempted to obtain an unauthorized attorney fee award in an amount that the trial court never determined was reasonable. See id. Such attempt to increase a fee award is at best unorthodox, at worst furtive. The unilateral alteration verges on an attempt to cireumvent the trial court's orders and determinations. The trial court did not abuse its discretion by correcting the proposed findings of fact and conclusions of law and the proposed judgment to conform to the court's original award of $30,206.45, thereby maintaining its own discretion, control, and authority over attorney fee awards.

138 Moreover, a trial court is not required to adopt the prevailing party's assertion of what constitutes a reasonable attorney fee, even if the fee sought is supported by an affidavit. In Dixie State Bank, we explained that a "trial court is allowed to reduce the amount asserted by one party in determining a reasonable fee" and that the trial court is not required to accept self-interested evidence regarding the reasonableness of an asserted fee. 764 P.2d at 989.

139 Further, the party moving for attorney fees in reliance on its own imprecise and erroneous calculations must carry the burden of following the proper procedural course of filing an amended motion for attorney fees to redress its mistake or be responsible for and suffer the consequences of the error. In this case, Voest-Alpine inappropriately assumed that the trial court would tacitly acquiesce in the proposed augmented attorney fees award without first ruling on the reasonableness of the increased award simply because the proposed findings of fact and conclusions of law and the proposed judgment were accompanied by an affidavit supporting the award. Instead, Voest-Alpine should have filed an amended motion for attorney fees or a motion to augment the attorney fee award, let the trial court decide whether $38,380 was a reasonable fee, and then-should the trial court increase the award-prepare a proposed judgment in conformity with the court's revised decision. Seq, eg., ProMax Dev. Corp. v. Raile, 2000 UT 4, I 16, 998 P.2d 254; see also N.AKR., Inc. v. Walker, 2001 UT 98, 11 2-7, 37 P.3d 1068; Utah R. Civ. P. T(b)(1); Utah R. Jud. Admin. 4-504(1). Therefore, the trial court did not abuse its discretion in refusing to award Voest-Alpine an additional $8,173.55 in attorney fees.

CONCLUSION

140 The trial court correctly concluded that the lease term commenced on March 1, 1994, and that the waiver of subrogation in the lease precluded Mountain States' claims. Additionally, the trial court did not abuse its discretion by refusing to award Voest-Alpine additional attorney fees. We therefore affirm.

€ 41 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice WILKINS concur in Justice RUSSON's opinion.

      . Mountain States' own insurers, having settled and paid Bakowski and Ramirez, pursue this matter under their subrogation rights in Mountain States' name.

      . On appeal, neither party raises the status of Bakowski and Ramirez for purposes of the Workers' Compensation Act, and we therefore do not address it in this opinion.

      . This does not abrogate our previous holdings that a post-injury "settlement between an injured party and a tort-feasor who has knowledge of the subrogation rights of the injured party's insurer does not destroy the subrogation claim of the injured party's insurer." Educators Mut. Ins. Ass'n v. Allied Prop. & Cas. Ins. Co., 890 P.2d 1029, 1031 (Utah 1995).


author: DURHAM, Chief Justice:

text:
    2002 UT 65
    Kenneth Alan BANKS, Susan Banks Baker, and Bransford Michael Banks, and John Does 1 through 50, Plaintiffs, Counterclaim Defendants, and Appellees, v. Nancy A. MEANS and John Does I through V, Defendants, Counterclaim Plaintiffs, and Appellant.
    No. 20001071.
    Supreme Court of Utah.
    July 19, 2002.
    James H. Faust, Salt Lake City, for plaintiffs.
    J. Jay Bullock, Clinton J. Bullock, Karen Bullock Kreeck, Salt Lake City, for defendant.
   DURHAM, Chief Justice:

INTRODUCTION

{1 Decedent's children, Kenneth Alan Banks, Susan Banks Baker, and Bransford Michael Banks brought an action against decedent's sister, Nancy Means ("Ms.Means") seeking enforcement of a 1992 trust that was purportedly modified by a 1999 amendment. Under the terms of the 1999 amendment, Ms. Means would become the sole beneficiary of the trust, while the Banks children would become contingent beneficiaries. The trial court granted summary judgment in favor of the Banks children. Ms. Means appealed, arguing that the trial court erred by (1) granting the Banks children's motion for summary judgment, (2) denying Ms. Mean's cross-motion for summary judgment, and (8) admitting the deposition testimony of attorney Joseph L. Platt We affirm the trial court's grant of summary judgment and hold that the 1999 amendment did not effect a revocation of the trust as required by the trust language. Therefore, the terms of the original trust document govern the disposition of the trust estate and the remaining issues are moot.

BACKGROUND

12 On April 15, 1992, the decedent, Betty A. Banks ("Ms.Banks"), executed a document entitled the "Betty A. Banks Family Protection Trust," which was prepared by her attorney, Joseph L. Platt ("Mr.Platt"), As required by the terms of the trust, Ms. Banks, as settlor, transferred certain property into the trust and served as trustee until her death on August 24, 1999.

1 3 The trust provides that upon the death of Ms. Banks, the Banks children were to share equally in the proceeds of the trust estate and serve as joint trustees. Article I of the trust, "PURPOSES AND BIRTH DATES," declares "This Trust is established for the primary benefit of the Undersigned during the Undersigned's lifetime, for the Undersigned's family thereafter." The document then names Ms. Banks' family as Kenneth Alan Banks, Susan Banks Baker, and Bransford Michael Banks. Article IV, "DISPOSITION ON THE DEATH OF THE UNDERSIGNED," designates the Banks children as joint beneficiaries of the trust estate upon Ms. Banks' death. Article VI, "TRUSTEE PROVISIONS," names the Banks children as joint successor trustees.

T4 The trust agreement provides that the trust is revocable, and that Ms. Banks, as settlor, can amend certain portions of the trust, subject to the provisions of the trust language. Article III provides:

AMENDMENT, REVOCATION AND ADDITIONS TO TRUST
3.1 Rights of the Undersigned. As long as the Undersigned is alive, the Undersigned reserves the right to amend, modify or revoke this Trust in whole or in part, including the principal, and the present or past undisbursed income from such principal. Such revocation or amendment of this Trust may be in whole or in part by written instrument. Amendment, modification or revocation of this instrument shall be effective only when such change is delivered in writing to the then acting Trustee. On the revocation of this instrument in its entirety, the Trustee shall deliver to the Undersigned, as the Undersigned may direct in the instrument of revocation, all of the Trust property.
3.2 Interests of the Beneficiaries. The interests of the beneficiaries are presently vested interests subject to divestment which shall continue until this Trust is revoked or terminated other than by death. As long as this Trust subsists, the Trust properties and all the rights and privileges hereunder shall be controlled and exercised by the Trustee named herein in their fiduciary capacity.

11 5 In August 1999, Ms. Banks executed an amendment to the trust. The amendment consists of three replacement pages inserted into the trust document. It does not change article I of the trust, which states that the trust's purpose is to benefit Ms. Banks during her lifetime and her family thereafter, and names the Banks children as her family. The amendment does, however, change the beneficiaries and the successor trustees. The amendment changes article IV, "DISPOSITION ON THE DEATH OF THE UNDERSIGNED," to allocate 100% of the trust estate to Ms. Banks' older sister, Ms. Means, on the death of Ms. Banks, with the Banks children listed as alternate beneficiaries should Ms. Means predecease Ms. Banks. In addition, article VI of the amendment, "TRUSTEE PROVISIONS," changes the successor trustee to Ms. Means, with the Banks children to serve as joint successor trustees if Ms. Means predeceases Ms. Banks.

T6 After Ms. Banks died in August, 1999, the parties disputed whether the 1999 amendment or the original trust agreement governed the disposition of the trust. On October 14, 1999, the Banks children filed a complaint against Ms. Means seeking, among other things, a finding that they were the rightful trustees and beneficiaries of the trust, and were therefore entitled to the trust proceeds. Ms. Means counterclaimed, asserting that the 1999 amendment governed the disposition of the trust and that she was the sole beneficiary. After a series of motions and cross-motions, the trial court granted the Banks children's motion for summary judgment, and this appeal followed.

STANDARD OF REVIEW

¶ 7 Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c); Gerbich v. Numed, Inc., 1999 UT 37, ¶ 10, 977 P.2d 1205. When reviewing the trial court's ruling in a motion for summary judgment, we consider all facts and inferences to be drawn therefrom in the light most favorable to the nonmoving party. Peterson v. Sunrider Corp., 2002 UT 48, ¶ 13, 446 Utah Adv. Rep. 40, 48 P.3d 918. We review the trial court's grant of summary judgment for correctness, according no deference to that court's legal conclusions. Oxendine v. Overturf, 1999 UT 4, ¶ 7, 973 P.2d 417; State v. Pena, 869 P.2d 932, 936 (Utah 1994). In addition, we may affirm a grant of summary judgment on any ground available to the trial court, even if it was not relied upon below. Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158; Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993).

ANALYSIS

18 Ms. Means argues that the trial court erred when it (1) granted the Banks children's motion for summary judgment, (2) denied Ms. Means' motion for summary judgment, and (8) determined that the attorney-client privilege did not protect Mr. Platt's deposition statements. When the trial court granted summary judgment to the Banks children, it found that their children's interest in the trust was vested subject to divestiture only through a revocation of the trust, that the trust was never revoked, and that the Banks children were therefore the sole beneficiaries of the trust and entitled to receive disbursement of the trust corpus as set forth in the original trust document.

L THE TERMS OF THE ORIGINAL TRUST AGREEMENT

19 It is well settled that "[a] trust is a form of ownership in which the legal title to property is vested in a trustee, who has equitable duties to hold and manage it for the benefit of the beneficiaries.'' Continental Bank & Trust Co. v. Country Club Mobile Estates, Ltd., 632 P.2d 869, 872 (Utah 1981)(citing Restatement (Second) of Trusts § 2 (1959)). "[Olnee the settlor has created the trust he is no longer the owner of the trust property and has only such ability to deal with it as is expressly reserved to him in the trust instrument." Id. (citing Boone v. Davis, 64 Miss. 133, 8 So. 202 (1886)). Thus, a settlor has the power to modify or revoke a trust only if and to the extent that such power is explicitly reserved by the terms of the trust. Continental Bank, 632 P.2d at 872; see also Kline v. Utah Dep't. of Health, 776 P.2d 57, 61 (Utah Ct.App.1989)(citing Restatement (Second) of Trusts §§ 330-331 (1959)); accord Clayton v. Behle, 565 P.2d 1132, 1133 (Utah 1977). Furthermore, "[the creation of a trust involves the transfer of property interests in the trust subject-matter to the beneficiaries. These interests cannot be taken from [the beneficiaries] except in accordance with a provision of the trust instrument." George G. Bogert & George T. Bogert, Trusts & Trustees § 998 (2d ed. reyv.1988). Thus, our analysis begins with an examination of the original trust language to see what powers Ms. Banks reserved for herself as the trustee and what beneficial interests she created.

A. Revocation

10 Article III, entitled "AMENDMENT, REVOCATION AND ADDITIONS TO TRUST," clearly reserves the settlor's right to amend, modify or revoke the trust. Section 3.1 states "Rights of the Undersigned.... [The Undersigned reserves the right to amend, modify or revoke this Trust in whole or in part...." The trust specifies that "revocation or amendment of this Trust may be in whole or in part by written instrument. Amendment, modification or revocation of this instrument shall be effective only when such change is delivered in writing to the then acting Trustee." However, the trust indicates that in the case of complete revocation, "the Trustee shall deliver to the Undersigned, as the Undersigned may direct in the instrument of revocation, all of the Trust property." Thus, the trust specifies that for Ms. Banks to completely revoke the trust, all the property must be transferred back to Ms. Banks, after which she could presumably create a new trust or dispose of the property as she saw fit.

111 It is clear from the trust language that Ms. Banks reserved for herself the power to amend, modify, or revoke the trust in whole or in part. Any such changes were to be specified in writing and delivered to her, but in the case of a complete revocation, all the property in the trust was also to be delivered to Ms. Banks. Revocation is therefore a specific provision of the trust language and is not the same as an amendment or modification.

B. Beneficiary Interests

112 Next, we examine the trust agreement to see what interests Ms. Banks created for the trust beneficiaries. Section 3.2 reads, "Interests of the Beneficiaries. The interests of the beneficiaries are presently vested interests subject to divestment which shall continue until this Trust is revoked or terminated other than by death." By the plain language of the trust, the beneficiaries have "vested interests". that continue until the interests are "revoked or terminated." Here, Ms. Banks reserved the power to revoke, modify, or amend the trust in whole or in part in section 3.1, but limited that power in section 3.2 with regard to the beneficiaries. Thus, a complete revocation was required to divest the beneficiaries of their vested interests.

113 Ms. Means relies on In re Estate of Groesbeck, 935 P.2d 1255 (Utah 1997) for the proposition that the language in section 3.2 merely proves that the trust is not illusory and does not restrict Ms. Banks' rights to divest the Banks children of their vested interests. Her reliance is misplaced. In Groesbeck we held that a revocable trust can be created, without being deemed illusory, as long as title to the property passes to the trustee and vested interests are created in the beneficiaries, even if these interests are subject to divestiture. Id. at 1257-58 (citing Horn v. First Sec. Bank of Utah, N.A., 548 P.2d 1265, 1267 (Utah 1976). That is, a reservation of the power to revoke does not make a trust invalid. Id. at 1257. We further observed that vested beneficiary interests are "subject to being divested by the exercise of the reserved power to amend or revoke the indenture in trust." Id. at 1258. Thus, we concluded that the trust was valid, even though the Groesbecks had reserved the right to revoke the trust and created vested beneficiary interests that were subject to divestiture via the specific provisions of the trust itself. Id. at 1258. Groesbeck, therefore, does not require us to disregard the requirements of the trust language.

T14 Ms. Banks reserved the right to amend, modify, or revoke the trust, specified how such changes were to be accomplished, and created vested beneficiary interests that could be divested only though a complete revocation of the trust. Our next step, therefore, is to look to the 1999 amendment to see whether it complied with the terms of the trust.

IIL THE 1999 AMENDMENT

115 The 1999 amendment contains two primary changes. First, it changes article IV, "DISPOSITION ON THE DEATH OF THE UNDERSIGNED," to allocate 100% of the trust estate to Ms. Means on the death of Ms. Banks. Second, article VI, "TRUSTEE PROVISIONS," changes Ms. Banks' successor trustee from the Banks children to Ms. Means, unless Ms. Means predeceases Ms. Banks. Thus, the 1999 amendment sought to change the beneficiary status of the Banks children, thereby divesting them of their vested interests in the trust. As discussed earlier, the Banks children had vested interests in the trust which could only be divested according to the terms of the original trust document. Therefore, the 1999 amendment falls within the purview of article III, section 8.2 of the trust, which provides that beneficiary interests are only subject to divestiture via a revocation of the trust, and section 8.1, which requires that upon revocation the trust property must be delivered to Ms. Banks.

{16 Neither of these requirements were met. Ms. Banks did not divest the Banks children of their vested interests in the trust because she did not completely revoke the trust in the 1999 amendment. In other words, the 1999 amendment did not effect a revocation of the trust that would have properly divested the Banks children of their vested interests under the terms of the trust itself. As we have previously stated, "(elven a revocable trust clothes beneficiaries ... with a legally enforceable right to insist that the terms of the trust be adhered to." Continental Bank & Trust Co. v. Country Club Mobile Estates, Ltd., 682 P.2d 869, 872 (Utah 1981).

CONCLUSION

[ 17 We affirm the district court's grant of summary judgment to the Banks children and find that the Betty A. Banks Family Protection Trust dated April 15, 1992, governs the disposition of the estate of Betty A. Banks.

1 18 Associate Chief Justice DURRANT, Justice HOWE, Justice RUSSON, and Justice WILKINS concur in Chief Justice DURHAMS opinion.

      . These statements were relevant to the Banks children's claim of undue influence or lack of capacity to amend the trust; because of our disposition of the other questions on appeal, we do not reach this issue.

      . Ms. Banks was the settlor of the trust, the ''Undersigned" in the trust document, and the trustee of the trust once it was created.

      . A "vested" interest is something "[flhat has become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute.... [AJn interest may be vested, even where it does not carry a right to immediate possession, if it does confer a fixed right of taking possession in the future." Black's Law Dictionary 1557 (7th ed.1999).

      . The Groesbeck trust language was remarkably similar to the trust language at issue here: "The interest of the beneficiaries is a present interest which shall continue until this Trust is revoked or terminated other than by death." Id. at 1258. In that case, however, we were not called upon to determine whether a revocation had taken place that would have divested the beneficiaries of their interests. Id.

      . Also notable is what the 1999 amendment did not do. It did not change the language in article I, stating that the purpose of the trust was for Ms. Banks and her family thereafter, or the specific identifications by name and birthdate of the Banks children as her family. Accepting Ms. Means' interpretation of the 1999 amendment would thus render some language null and void, and contravene the stated purpose of the Betty A. Banks Family Protection Trust.