author: BILLINGS, Associate Presiding Judge:

text:
    2002 UT App 361
    Enoch Richard SMITH, as personal representative of the Estate of Enoch Smith Jr., Plaintiff and Appellee, v. D.A. OSGUTHORPE, an individual; and D.A. Osguthorpe Family Partnership, Defendants and Appellants.
    No. 20010530-CA.
    Court of Appeals of Utah.
    Oct. 31, 2002.

      David W. Scofield, Parsons Davies King-horn & Peters, Salt Lake City, for Appellants.
    ■Hardin A. Whitney, Moyle & Draper, and Robert G. Wing, Prince Yeates & Geldzahler, Salt Lake City, for Appellee.
    Before Judges JACKSON, BILLINGS, and THORNE.
   OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 D.A. Osguthorpe and the D.A. Osgu-thorpe Family Partnership (collectively the Osguthorpes) appeal the- district court’s grant of Enoch Richard Smith’s motions for summary judgment and denial of the Osgu-thorpes’ motions for summary judgment, to dismiss, and to amend. We affirm in part, and reverse and remand in part.

BACKGROUND

¶ 2 Prior to 1966, Enoch Smith Jr. (Smith) and D.A. Osguthorpe (Osguthorpe) were partners in a cattle and sheep business (the partnership). In November 1966, Smith and Osguthorpe entered into an agreement (the dissolution agreement) “to settle all of the rights between them in the partnership businesses and affairs.”

¶ 3 Under the dissolution agreement, Smith agreed to sell Osguthorpe his interest in the partnership assets, subject to a reservation by Smith of a share of proceeds derived from the sale or lease of property (the disputed property), which is the subject of this appeal. In return, Osguthorpe agreed to pay Smith $50,000 and to assume partnership obligations.

¶ 4 Smith and Osguthorpe signed the dissolution agreement. Additionally, Osgu-thorpe’s wife signed under a clause providing that “I ... agree that any interest that I may have in and to the [disputed property] shall be subject to the provisions of said paragraph 1(g)” of the dissolution agreement. In January 1967, the dissolution agreement was recorded in the Summit County Recorder’s Office.

¶ 5 Sometime after entering into the dissolution agreement, Osguthorpe conveyed part of the disputed property to the D.A. Osgu-thorpe Family Partnership (the family partnership). The family partnership included Osguthorpe’s son Stephen.

¶ 6 On August 14, 1996, Osguthorpe and the family partnership entered into a twenty-eight-year agreement with Wolf Mountain Resorts, L.C. (Wolf Mountain) titled “Lease Agreement” (the lease). Under the lease, Wolf Mountain agreed to annually pay the Osguthorpes $100,000 to “lease[ ] ... specific portions” of the Osguthorpes’ property, including the disputed property, “for use as a commercial recreation area, including the installation, maintenance and operation of two ski lifts, snow making and clearing of ski trails and such other related facilities, structures and roads as may be required.” The lease also required Wolf Mountain to permit the Osguthorpes “to improve and to use” the property provided the Osguthorpes did “not interfere with ski lifts and similar structures and runs of’ Wolf Mountain.

¶ 7 Sometime in 1997, American Skiing Company (the Canyons) succeeded to Wolf Mountain’s interest in the lease. On July 28, 1997, the Canyons, Osguthorpe, the family partnership, and Stephen, as an individual, amended the lease. This first amendment granted the Canyons the right to construct a ski trail, and the right to repair and construct additional roads and relocate and upgrade lifts subject to the approval of Stephen and the Canyons’ director. The amendment required the Canyons to “include the Osgu-thorpes in their master planning process.” The amendment also increased the annual rent to $150,000.

¶8 On August 10, 1998, the lease was amended a second time. This second amendment gave the Canyons the right to have alpine skiing operations and to construct another road subject to the approval of Stephen and the Canyons’ director. The Osguthorpes retained the right to use and improve all of the property for their sheep and cattle ranching operations, so long as the same did not damage the Canyons’ facilities or unreasonably interfere with the Canyons’ winter use of the property. The amendment increased the annual payment to $200,000.

¶ 9 In November 1998, Enoch Richard Smith, as representative of Enoch Smith Jr.’s estate, brought a breach of contract action against the Osguthorpes, seeking a share of the lease payments. Smith filed a motion for partial summary judgment, contending the dissolution agreement entitled him to a share of the lease payments. The Osguthorpes filed a cross-motion for summary judgment, contending the dissolution agreement was unenforceable. Following a hearing, the district court granted Smith’s motion for partial summary judgment.

¶ 10 Thereafter, the Osguthorpes’ counsel withdrew and newly associated counsel filed a motion to reconsider the grant of partial summary judgment to Smith, asserting the dissolution agreement was unenforceable for want of consideration and under the statute of frauds. The Osguthorpes’ new counsel also filed a second motion to amend their answer to assert, inter alia, fraud defenses and counterclaims. The district court denied the Osguthorpes’ motion to reconsider, ruling that the dissolution agreement was integrated and satisfied the statute of frauds. The district court did not address the Osgu-thorpes’ motion to amend.

¶ 11 Smith filed a second motion for summary judgment seeking damages of one-half of the lease payments in excess of $1.60 per acre. In response, the Osguthorpes asserted the lease payments were mainly for services rendered by Osguthorpe and Stephen, thus a material issue of fact existed as to the allocation of payments due Smith. The district court granted Smith’s requested damages, concluding the lease payments were entirely for use of the disputed property not for services.

¶ 12 The Osguthorpes then filed a motion to dismiss for failure to join Stephen and the Canyons as indispensable parties. The district court refused to grant or deny the motion. Instead, the court ruled that although the Canyons and Stephen did not have an interest in Smith’s action generally, they had an interest with respect to its ruling that the lease payments were not for services. The court therefore invited the Canyons and Stephen to file memoranda in opposition to Smith’s second motion for summary judgment.

¶ 13 The Osguthorpes now appeal the grant of Smith’s motions for summary judgment and the denial of their motions for summary judgment, to dismiss, and to amend their answer.

ISSUES AND STANDARDS OF REVIEW

¶ 14 The Osguthorpes argue the district court erred in granting Smith’s motions for summary judgment.

Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In determining whether the [district] court correctly found that there was no genuine issue of material fact, we accept the facts and inferences in the light most favorable to the [nonmoving] party. In deciding whether the [district] court correctly granted judgment as a matter of law, we give no deference to the [district] court’s view of the law; we review it for correctness.

SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., 2001 UT 54, ¶ 9, 28 P.3d 669 (second alteration in original) (quotations and citations omitted).

¶ 15 The Osguthorpes also argue the district court erred in not ordering join-der of Stephen and the Canyons. We review the district court’s “rule 19 determination under an abuse of discretion standard.” Grand County v. Rogers, 2002 UT 25, ¶ 27, 44 P.3d 734. However, the district court’s “interpretation of ... rule [19] is a question of law that we review for correctness.” Brown v. Glover, 2000 UT 89, ¶ 15, 16 P.3d 540.

ANALYSIS

I. Is the Dissolution Agreement Enforceable?

¶ 16 The Osguthorpes raise a number of issues in contending the district court erred in enforcing the dissolution agreement. We consider each issue but conclude the district court did not err in concluding the dissolution agreement is enforceable.

A. Consideration of Parol Evidence in Determining the Dissolution Agreement is Integrated

¶ 17 The parol evidence rule “operates in the absence of fraud to exclude [prior and] contemporaneous conversations, statements, or representations offered for the purpose of varying or adding to the terms of an integrated contract.” Union Bank v. Swenson, 707 P.2d 663, 665 (Utah 1985) (emphasis omitted). “An agreement is integrated where the parties thereto adopt a writing or writings as the final and complete expression of the agreement.” Eie v. St. Benedict’s Hosp., 638 P.2d 1190, 1194 (Utah 1981) (quotations and citation omitted).

¶ 18 “[A] court must first determine whether the writing was intended by the parties to be an integration. In resolving this preliminary question of fact, parol evidence, indeed any relevant evidence, is admissible.” Union Bank, 707 P.2d at 665 (emphasis added). However, to preserve the integrity of written contracts, we apply “a rebuttable presumption that a writing which on its face appears to be an integrated agreement is what it appears to be.” Id.; see also Terry’s Sales, Inc. v. Vander Veur II, 618 P.2d 29, 32 (Utah 1980) (“Where parties have various claims and obligations to each other, and have had a discussion about resolving their disputes which results in a written agreement signed by them, it is generally to be assumed that their disputes were merged into the written agreement”)- Further, a district court is not precluded from ruling that an agreement is integrated in granting a motion for summary judgment. If the “contract terms are complete, clear, and unambiguous!;, they can] be interpreted by the judge on a motion for summary judgment.” Webb v. R.O.A. Gen., Inc., 804 P.2d 547, 551 (Utah Ct.App.1991) (quotations and citation omitted). We cannot say the district court erred in determining from the unambiguous terms of the dissolution agreement that it is integrated.

¶ 19 The dissolution agreement provides that the parties “now desire to settle all of the rights between them.” (Emphasis added.) Further, the agreement requires Osgu-thorpe to pay $50,000 to Smith within thirty days of the date of the agreement and “upon payment in full” requires Smith to execute and deliver assignments, deeds, and bills of sale necessary to convey his interest in the partnership businesses. Each party also agrees to “release and discharge” the other from all claims arising out of the partnership. We conclude the unambiguous language establishes that the dissolution agreement is integrated.

B. Consideration for the Dissolution Agreement

¶20 Next, the Osguthorpes argue that although in the dissolution agreement Smith purports to convey his interest in the disputed property, Smith had nothing to convey as Osguthorpe was at all times the owner of the property. Thus, they argue Smith’s promise to sell subject to a reservation when he had no interest to sell does not “suffice for consideration.”

¶ 21 The dissolution agreement provides:

Except as hereinafter reserved to [Smith], [Smith] agrees to sell to [Osgu-thorpe] all of [Smith’s] right, title, interest and estate in and to all partnership assets, and [Osguthorpe] agrees to purchase from [Smith] all of his said right, title, interest and estate in and to all partnership assets upon the following terms and conditions, to-wit:
1. The partnership assets and properties covered hereby shall include:
(g) In addition to the above described property, [Smith] agrees to sell to [Osgu-thorpe], his interest in the following described real property located in Summit County, Utah, subject, however, to the reservation of interests therein by [Smith] as hereinafter specifically set forth:
[property description in metes and bounds].

(Emphasis added.)

¶22 The district court concluded the disputed property was a partnership asset based upon this declaration. We agree. Subparagraph (l)(g) falls under the paragraph providing that Osguthorpe “agrees to purchase ... all partnership assets upon the following terms and conditions,” and paragraph (1) providing that “[t]he partnership assets and properties covered hereby shall include,” and then listing the partnership properties. (Emphasis added.) In subpara-graph (l)(g), Smith agrees to sell “his interest in the following described real property.” (Emphasis added.) Smith and Osguthorpe were agreeing that certain properties were partnership properties to the exclusion other properties. of

¶23 The Osguthorpes argue the declaration alone is insufficient as a matter of law to establish that Smith had an interest in the disputed property because Smith was required to prove a conveyance, separate from the dissolution agreement, by Osguthorpe to Smith or their partnership that complied with the statute of frauds.

¶ 24 To satisfy the statute of frauds, “[a]ll that is required is that the interest be granted or declared by a writing subscribed by the party to be charged.” Guinand v. Walton, 22 Utah 2d 196, 450 P.2d 467, 469 (1969) (concluding letter stating partner was entitled to ten percent interest in partnership assets, consisting of leaseholds and interest in lands, satisfied statute of frauds) (emphasis added). The district court ruled that because the dissolution agreement declared the disputed property to be partnership property and it was signed by Osguthorpe, the party to be charged, the statute of frauds was satisfied. We agree "with the district court that the dissolution agreement suffices to show that Smith had an interest in the property and therefore the dissolution agreement is supported by consideration.

II. Is the Reservation of a Share of the Lease Payments an Unreasonable Restraint on Alienation?

¶ 25 The Osguthorpes argue Smith’s reservation of an interest in the sale and lease payments is void as an unreasonable restraint on alienation. Smith responds the reservation of a share of the lease payments is not a restraint on alienation but is merely an agreed upon method of splitting up the profits when the disputed property is leased. The reservation provides in relevant part:

In' the event, however, that [Osguthorpe] or his successor or successors in interest, during the lifetime of the survivor of [Smith] and [Osguthorpe], plus twenty-one (21) years, in a good faith transaction, shall sell the property, or any part thereof at a price exceeding Twenty Dollars ($20.00) per acre, plus the depreciated' cost of any fencing that [Osguthorpe] may have caused to be done on the property, then [Smith] shall share equally with [Osguthorpe] in the sales price paid over Twenty Dollars ■ ($20.00) per acre, plus said depreciated fencing cost, and if, during said period of time he, or his successor or successors in interest in the property shall lease all or any part of the property, for any period of time commencing during said retained interest period, at a price in excess of $1.60 per acre per year, [Smith] shall share equally in the excess rental over the $1.60 per acre per year.

¶26 In Redd v. Western Savings & Loan Co., 646 P.2d 761 (Utah 1982), the Utah Supreme Court recognized two types of restraints on alienation, direct and indirect. See id. at 764 (citing Restatement of Property § 404 (1944)). A direct restraint

“is an attempt by an otherwise effective conveyance or contract to cause a later conveyance (a) to be void; or (b) to impose contractual liability on the one who makes the later conveyance when such liability results from a breach of an agreement not to convey; or (c) to terminate or subject to termination all or a part of the property interest conveyed.”

Id. at 762 n. 1 (quoting Restatement of Property § 404). Traditionally, direct restraints have been held to be void. See Page v. Page, 15 Utah 2d 432, 394 P.2d 612, 613 (1964). We agree with the district court that the reservation of a share of the lease payments is not a direct restraint.

¶ 27 “An indirect restraint on alienation arises when an attempt is made to accomplish some purpose other than the restraint of alienability, but with the incidental result that the instrument, if valid, would restrain practical alienability.” Redd, 646 P.2d at 764 (quotations and citation omitted); see also Restatement (Third) of Prop.: Servi-tudes § 3.5 (1998) (“An otherwise valid servitude is valid even if it indirectly restrains alienation by limiting the use that can be made of the property, by reducing the amount realizable by the owner on sale or other transfer of the property, or by otherwise reducing the value of the property”). In Redd, the supreme court noted that an indirect restraint will “generally [be] upheld and enforced ... if it is found reasonably necessary to protect a justifiable or legitimate interest of the parties.” 646 P.2d at 764.

¶ 28 The pivotal issue in the present case is whether the provision that Osguthorpe share the lease payments with Smith restrains practical alienability and thus is an indirect restraint on alienation. Utah appellate courts have not considered this issue. However, Holiday Out in America at St. Lucie, Inc. v. Bowes, 285 So.2d 63 (Fla.Dist.Ct.App.1973), is instructive. In that case, purchasers of condominium units brought an action to void, as an unreasonable restraint, a condominium declaration provision that gave the developer the exclusive right to rent the condominium units to the general public when the same were not occupied by the owners. See id. at 64. The provision required the developer to remit fifty percent of the rent to the owners to help pay for the units. See id. The Florida Court of Appeals concluded there was no restraint on alienation. See id. The court explained, “that the property may be less desirable (and hence less valuable) than would be the case if not subject to the rental restrictions ... simply does not constitute a restraint on alienation.” Id.

¶ 29 Even if we were to hold the rent sharing provision in the present case is an indirect restraint, we would conclude it can be enforced. Significantly, Redd was decided before section 3.5 of the Restatement (Third) of Property was adopted. Section 3.5 drops the requirement that an indirect restraint be reasonable, requiring only a rational justification for the restraint. See Restatement (Third) of Prop.: Servitudes § 3.5 cmt. a. We conclude under either the Redd reasonableness test or the more modern rational justification test, the reservation is not invalid.

¶ 30 Kerley v. Nu-West, Inc., 158 Ariz. 344, 762 P.2d 631 (App.1988), is helpful. In that case, two landowners sold fifteen acres of their interest in a subdivision to a developer, subject to a reservation of ten percent of the gross sales price from the first sale of each improved parcel, and subject to a provision requiring the developer to develop and sell the land. See id. at 632-33. The reservation was a covenant running with the land and was binding on successive owners until the amount due on the first sale was paid. See id. at 633. The sellers and developer also agreed the sellers could repurchase the land that had not been developed or resold. See id. In considering whether the restraint was reasonable, the Arizona Court of Appeals considered whether:

“1. the one imposing the restraint has some interest in the land which he is seeking to protect by the enforcement of the restraint; 2. the restraint is limited in duration; 3. the enforcement of the restraint accomplishes a worthwhile purpose;
4. the type of conveyances prohibited are ones not likely to be employed to any substantial degree by the one restrained;
5. the number of persons to whom alienation is prohibited is small; 6. the one upon whom the restraint is imposed is a charity.”

Id. at 634 (quoting Restatement of Property § 406 cmt. i (1944)).

¶ 31 In upholding the restraint, the Arizona Court of Appeals noted the sellers retained an interest in the adjoining land. See id. at 635. The court then emphasized the “whole purpose of the agreement was to develop and sell land — the very antithesis of the purpose of those practices that gave rise to statutes and decisions [traditionally] forbidding quarter sales and unreasonable restraints on alienation.” Id. The court further emphasized the developer knew when he bargained for the agreement that he had to project his profit or loss plus the ten percent reservation on the price of the property. See id. The court also emphasized that although “[a]s written, the obligation to pay money [was] unlimited as to time ... [t]he law ... implie[d] that it [would] be carried out within a reasonable time.” Id. Thus, although the power to trigger the obligation to pay the ten percent was within the developer’s control, if the sellers took no legal action to see that the spirit of the agreement was enforced, “laches [might] foreclose [their] right to receive the ten percent payment” upon resale. Id. at 636.

¶ 32 In the present case, Enoch Richard Smith alleges his father’s justification for the reservation was to allow him to participate in the disputed property’s future increase in value. Further, the record shows the reservation did not prevent alienation twice — to the family partnership and to the Canyons. In fact, the Osguthorpes leased the property for twenty-eight years and it has been improved. Thus, we conclude the reservation of a share of the lease payments is enforceable.

III. Does the Dissolution Agreement Entitle Smith to Share in the Lease Payments Although the Osguthorpes Use Portions of the Disputed Property for Grazing?

¶ 33 The Osguthorpes assert the dissolution agreement provides that they do not have to share the lease payments with Smith so long as they use the disputed property for grazing in connection with their sheep and cattle operations.

¶ 34 The dissolution agreement provides:

So long as [Osguthorpe] shall use said real property as grazing lands in connection with his operation of a sheep or cattle business, [Osguthorpe] shall have the right to the possession and use of the property without compensation to [Smith], but he shall pay the taxes and any expense of maintaining the property. In the event, however, that [Osguthorpe] or his successor or successors in interest ... shall lease all or any part of the property, for any period of time commencing during said retained interest period, at a price in excess of $1.60 per acre per year, [Smith] shall share equally in the excess rental over the $1.60 per acre per year.

(Emphasis added.)

¶ 35 The Osguthorpes allege that Smith’s counsel assured Osguthorpe that the dissolution agreement would only require him to share lease payments if he ceased using the property for grazing. We agree with the district court that the Osguthorpes’ allegation is contrary to the unambiguous plain language of the agreement and that Smith is entitled to share in the lease payments even though the Osguthorpes continue to use part of the disputed property for grazing.

IV. Does the Dissolution Agreement Entitle Smith to Share in the Lease Payments?

¶ 36 The Osguthorpes argue that because the lease does not grant the Canyons an exclusive right of possession, Smith is not entitled to share in the lease payments under the dissolution agreement. They maintain the lease grants a nonexclusive easement because they retain the right to possess, improve, and control the property.

¶37 The dissolution agreement provides that Smith is entitled to share in lease payments if the Osguthorpes lease “any part” of the disputed property. The district court ruled the lease was for a leasehold interest. The court emphasized that the lease is titled “Lease Agreement” and identifies the Osgu-thorpes as the lessors and the Canyons as the lessee. The court further emphasized that the lease requires the Canyons to pay “rent.” Thus, the court ruled the dissolution agreement requires the Osguthorpes to share the lease payments. The Osguthorpes argue the district court elevated form over substance in focusing on the nomenclature “lease.”

¶ 38 “A lease conveys an interest in land and transfers possession.” Keller v. Southwood N. Med. Pavilion, Inc., 959 P.2d 102, 107 (Utah 1998) (quotations and citation omitted). While a leasehold transfers exclusive possession, see id., an easement is also an interest in land of another, although for a particular purpose, see Warburton v. Virginia Beach Fed. Sav. & Loan Ass’n, 899 P.2d 779, 781 (Utah Ct.App.1995); see also Crane v. Crane, 683 P.2d 1062, 1066 (Utah 1984) (recognizing commercial easements in gross as alienable property interests). We conclude the district court properly considered the lease language, although it is not determinative. We further conclude the dissolution agreement allows Smith to share in the lease payments, even if the Canyons’ interest is an easement, as the dissolution agreement entitles Smith to share in the lease payments if the Osguthorpes lease “any part” of the disputed property and the agreement is silent as to exclusive possession.

V. Do Issues of Material Fact in Regard to Allocation of the Lease Payments Preclude Summary Judgment on Damages?

¶ 39 The Osguthorpes maintain the district court erred in ruling that the entire payment due under the lease and the amendments is for use of the disputed property because the lease parties’ deposition testimony and affidavits establish that the majority of the lease payment is for Stephen Osguthorpe’s (Stephen) personal services.

¶40 The district court ruled the lease and the amendments are integrated. However, it is unclear from the district court’s ruling whether the court considered the parol evidence offered by the Osgu-thorpes in so ruling. The court also ruled that any “side oral agreement” for services by Stephen violated the statute of frauds.

¶ 41 In first determining whether the lease and the amendments are integrated, the district court was required to consider “parol evidence, indeed any relevant evidence,” Union Bank v. Swenson, 707 P.2d 663, 665 (Utah 1985) (emphasis added), “showing] the circumstances under which [they were] made and the purpose for which the instruments] [were] executed.” Eie v. St. Benedict’s Hosp., 638 P.2d 1190, 1194, (Utah 1981) (quotations and citation omitted). However, to preserve the integrity of written contracts, our courts “presumfe] that a writing which on its face appears to be an integrated agreement is what it appears to be.” Union Bank, 707 P.2d at 664; see also Terry’s Sales, Inc. v. Vander Veur II, 618 P.2d 29, 32 (Utah 1980) (“Where parties have various claims and obligations to each other, and have had a discussion about resolving their disputes which results in a written agreement signed by them, it is generally to be assumed that their disputes were merged into the written agreement.”). Further, a district court is not precluded from ruling that a contract is integrated in granting a motion for summary judgment. If the “contract terms are complete, clear, and unambiguous [, they can] be interpreted by the judge on a motion for summary judgment.” Webb v. R.O.A. Gen., Inc., 804 P.2d 547, 551 (Utah Ct.App.1991) (quotations and citation omitted).

¶ 42 The initial lease makes no reference to services, nor does it include any language that even ambiguously alludes to services. The first amendment provides that Stephen is to approve construction of certain roads and trails and the Canyons “will include the Osguthorpes in their master planning process.” It also provides the lease parties are to “work together in good faith” and “maintain open communications.”

¶43 The Osguthorpes offered affidavits and deposition testimony that Osguthorpe and Stephen met with the Canyons after it succeeded to Wolf Mountain’s interest in the lease. The Osguthorpes and the Canyons allegedly orally agreed that Stephen would assist the Canyons with obtaining permits and with the development of the disputed property. The Osguthorpes also offered two checks from the Canyons for the annual lease payment. The 1999 check listed Stephen as the payee.

¶ 44 In his deposition, Blaise Carrig (Car-rig), the Canyons’ director, testified that because of time constraints and the parties’ relationship, the first amendment was brief and does not include a detailed description of the personal services. Carrig further testified that use of the property was worthless without the Osguthorpes’ support in obtaining permits and “consultation to make the whole operation and planning ... work.” Carrig also testified that the lease amendment language that the Canyons and the Osguthorpes agree to “work together in good faith” and “maintain open communications” establishes that part of the lease payment is for services.

¶ 45 We cannot determine from the record whether the district court considered the offered parol evidence to determine as a threshold matter whether the lease and the amendments are an integrated agreement. See Colonial Leasing Co. of New England, Inc. v. Larsen Bros. Constr. Co., 731 P.2d 483, 486 (Utah 1986) (“Because the parol evidence rule applies only if the writing was intended by the parties to represent the full and complete agreement of the parties, the [district] court must first determine whether the writing was intended to be an integrated agreement.”). We also cannot say as we did with the dissolution agreement that the terms of the informal lease and amendments are “complete, clear, and unambiguous.” We conclude the parol evidence offered by the Osguthorpes was relevant to whether the lease and the amendments constitute an integrated agreement. We also conclude that if the district court determines after considering this parol evidence that the lease and the amendments are not an integrated agreement, then there is a material issue of fact as to damages. We therefore remand for the court to consider the parol evidence or to make clear that it considered the parol evidence in ruling that the lease and the amendments are integrated. If the court did not consider the parol evidence, the court must consider such evidence to determine whether the lease and the amendments are an integrated agreement to pay exclusively for the use of the disputed property or whether the lease parties also have an agreement for services and the appropriate allocation of damages.

¶ 46 On remand the district court should make clear it considered the parol evidence in ruling the lease and the amendments are integrated or it should take evidence to determine if the lease and the amendments are integrated. The district court should determine based on the lease and the amendment terms, testimony of the parties to the lease and the amendments, and the circumstances surrounding their execution if they are integrated. Even if the evidence offered on remand “is uncontroverted, [the district] court is free to disregard such [evidence] if it finds the evidence ‘self-serving and not credible.’ ” Glauser Storage, L.L.C., v. Smedley, 2001 UT App 141, ¶ 24, 27 P.3d 565. Thus, we note that even if the parties’ testimony is uncontroverted, the court may determine under the circumstances the lease and the amendments are integrated, cf. Webb, 804 P.2d at 551, and that the lease payments are for use of the disputed property not for services. If the court determines the lease and the amendments are not integrated, then summary judgment would not be appropriate as there would be disputed issues of fact. The court then must ultimately hear testimony to determine if there is a valid, enforceable agreement — e.g., which is not barred by the statute of frauds and which is not unenforceable for lack of definiteness — to apply part of the annual lease payments as payment for personal services. If such an agreement exists, the court should also determine what portion of the lease payments is for use of the disputed property, determine what portion is for services, and establish damages based thereon.

VI. Did the District Court Err by not Ordering Joinder of Stephen and the Canyons?

¶ 47 In essence, the Osguthorpes argue the district court erred by inviting, rather than ordering, joinder of Stephen and the Canyons because they are indispensable parties. Under Rule 19 of the Utah Rules of Civil Procedure, a party must be joined if that party is necessary and it is feasible to join that party. See Utah R. Civ. P. 19. “The underlying purpose of rule 19 requiring joinder 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.” ’ ” Grand County v. Rogers, 2002 UT 25, ¶ 28, 44 P.3d 734 (quoting Landes v. Capital City Bank, 795 P.2d 1127, 1130 (Utah 1990)) (other citation omitted).

¶ 48 “Under rule 19, the [district] court must first determine whether a party is necessary.” Id. at ¶ 29. 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 (I) 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.”

Id. at ¶ 28 (quoting Utah R. Civ. P. 19(a)). If the court concludes a party is necessary, “the court must next consider whether joinder of the necessary party is feasible.” Id. at ¶ 29. If joinder is feasible, the necessary party “ ‘shall be joined.’ ” Id. (quoting Utah R. Civ. P. 19(a)).

¶ 49. The district court concluded that although Stephen and the Canyons did not have an interest in Smith’s action generally, they did have an interest in the court’s ruling that the lease payments were for use of the disputed property not for personal services. The court then invited Stephen and the Canyons to file memoranda in opposition to Smith’s motion for summary judgment in regard to damages. Stephen filed a memorandum in opposition and an affidavit. The Canyons declined to do the same.

¶ 50 In their opening brief, the Osgu-thorpes fail to discuss specific facts showing how Stephen or the Canyons, “based on the criteria set forth in rule 19(a), [are] necessary parties] to this action.” Green v. Louder, 2001 UT 62, ¶ 44, 29 P.3d 638. Nor do they explain why the authorities they cite compel this court to reverse the district court.

¶ 51 “Without more, delay is not a proper reason to deny joinder under [r]ule 19.” Le-Pet, Inc. v. Mower, 872 P.2d 470, 473 (Utah Ct.App.1994). However, in this case, Stephen was a party to the litigation as a member of the family partnership; yet, Osgu-thorpe and the family partnership did not seek joinder until after Smith’s motion for summary judgment on damages had been granted. We also disagree that Stephen’s ability to protect his interest is impaired. In his affidavit, he attested that Osguthorpe allocates the lease payments. There is no evidence that he has not received any payment due him, although the record includes a letter to the Canyons indicating Stephen will no longer perform services.

¶ 52 Further, rule 19 allows joinder where there is a “substantial risk” of inconsistent obligations. Utah R. Civ. P. 19(a). Here, according to Stephen’s affidavit, Osguthorpe allocates the lease payments. Arguably, Stephen’s interest and the Canyons’ interest in the district court’s ruling in regard to the lease payments are identical — they both share a concern that services are a significant part of the lease payments. Although the Canyons is not bound by the district court’s decision, it seems likely that an action by the Canyons against Stephen for services would be unsuccessful. Cf Boczon v. Northwestern Elevator Co., 652 F.Supp. 1482, 1486 (E.D.Wis.1987) (recognizing “[n]o substantial risk of incurring inconsistent obligations exists where there is only a risk of a frivolous lawsuit, or where the absent party has no cause of action against parties already named” (citation omitted)). Thus, we cannot say the district court erred in not ordering joinder of Stephen and the Canyons in the first proceeding. However, we note the issues presented in regard to the integration of the lease and damages on remand may well require a different result.

CONCLUSION

¶ 53 We conclude the dissolution agreement is integrated and enforceable. We further conclude Smith is entitled to share in the lease payments even though the Osgu-thorpes still use the disputed property for grazing and the Canyons’ possession of the same may not be exclusive. However, the district court was required to consider extrinsic evidence in determining as a threshold matter whether the lease and the amendments are integrated. We therefore reverse in part and remand for consideration of this evidence and for proceedings consistent with this opinion.

¶ 54 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and WILLIAM A. THORNE JR., Judge.

      . Enoch Richard Smith filed this action as the representative of the estate of his father, Enoch Smith Jr., who died on November 11, 1996. For convenience we refer to the two as Smith.

      . The Osguthorpes additionally argue the district court exceeded its discretion in failing to grant their second motion to amend. However, they fail to explain why the district court exceeded its discretion. They instead appear to ask this court to order the district court to allow amendment on remand. As Smith correctly notes, the Osgu-thorpes have the option to seek amendment on remand. See Call v. West Jordan City, 727 P.2d 180, 181 (Utah 1986) (noting pleadings may be amended after remand “within the sound discretion of the [district] court so long as they do not cover issues specifically foreclosed by the appellate court”).

      . It is unclear whether the district court considered the parol evidence offered by the Osgu-thorpes in determining that the dissolution agreement is integrated. However, even if we were to conclude that the parol evidence was admissible to determine if the dissolution agreement is integrated and the court erred in not considering it, we conclude any error was harmless. The parol evidence does not establish that the dissolution agreement is not integrated.
      In his affidavits, Osguthorpe attested that in 1966, he and Smith orally agreed to dissolve the partnership. Thereafter, he tendered $50,000 to Smith who accepted the payment. A few weeks later, Smith’s attorney contacted Osguthorpe to sign the dissolution agreement, which Osgu-thorpe reviewed. Osguthorpe also attested that the $50,000 lie paid Smith was equal to or greater than the then current market value of Smith’s partnership interest and Osguthorpe received no consideration for signing the dissolution agreement. This testimony is not persuasive on the issue of integration.

      . The Osguthorpes argue the district court erred in refusing to consider parol evidence offered to support their contention that Smith's promise to sell the disputed property was illusory. Smith responds that because the dissolution agreement unambiguously declares that the disputed property was partnership property and Smith had an interest in such property, parol evidence is inadmissible. The Utah Supreme Court has recognized that parol evidence is admissible to show lack or want of consideration, see Union Bank v. Swenson, 707 P.2d 663, 665 (Utah 1985), and failure of consideration, see Nielsen v. MFT Leasing, 656 P.2d 454, 456 (Utah 1982). But see Last Chance Ranch, Co. v. Erickson, 82 Utah 475, 25 P.2d 952, 958 (1933) ("[I]f the consideration stated appears as a clear and unambiguous statement of part of the agreement, representing an actual contractual term and something more than a mere formal requisite, such a term of the contract must be regarded in the same light as any other material term of the contract and extrinsic evidence to vaiy or contradict it is inadmissible[.]" (Quotations and citation omitted.)). In his affidavit, Osguthorpe attested that he never transferred nor intended to transfer ownership of the disputed property to Smith or the partnership, nor is there any signed, delivered, or recorded deed doing the same. However, Utah’s Partnership Act acknowledges that property may be conveyed to a partnership without transferring title. See Utah Code Ann. §§ 48-1-5, 48-1-7" (1998). Additionally, the dissolution agreement was recorded. We thus conclude that even considering the extrinsic evidence, there is no material issue of fact that precludes summary judgment. Our conclusion is further supported by the fact that Osguthorpe’s wife signed the dissolution agreement under the clause providing, “I ... agree that any interest that I may have in and to the [disputed’property] shall be subject to the provisions of said paragraph 1(g)."

      . The Osguthorpes also argue Smith's promise to sell some undefined “interest” in the property fails for lack of specificity under the statute of frauds. "[A] real property interest may be transferred through [a deed or] other documents and memoranda revealing an intent to transfer an interest in real property.” Warburton v. Virginia Beach Fed. Sav. & Loan Ass’n, 899 P.2d 779, 781 (Utah Ct.App.1995). Given that Smith promised to sell his entire interest in the partnership property, we conclude the statute of frauds is satisfied.

      . The Osguthorpes rely on LaFond v. Rumler, 226 Mich.App. 447, 574 N.W.2d 40 (1997); White v. White, 105 N.J.Super. 184, 251 A.2d 470 (Ch. Div.1969); Dunlop v. Dunlop, 144 Va. 297, 132 S.E. 351 (1926); and Girard v. Myers, 39 Wash.App. 577, 694 P.2d 678 (1985). However, these cases address distinguishable provisions requiring grantees to share in proceeds upon the sale of property, traditionally referred to as "quarter sales.” The "quarter sale” provision in the dissolution agreement is not at issue in the present case.
      Moreover, although quarter sales traditionally have been considered void as unreasonable restraints on alienation, see, e.g., United States v. 397.51 Acres of Land, 692 F.2d 688, 691-92 (10th Cir.1982), the more modern view, according to the Restatement (Third) of Property, is that quarter sales are valid indirect restraints on alienation even though they reduce "the amount realizable by the owner on sale or other transfer of property, or by otherwise reducing the value of the property.” Restatement (Third) of Prop.: Servitudes § 3.5 (1998). This is because "modern financing practices have led to acceptance of arrangements in which land buyers agree to share future appreciation with both sellers and lenders. Under [section 3.5 of the Restatement (Third) of Property], these arrangements are not invalid if there is some rational justification for requiring the grantee to share the proceeds with another.” Id. § 3.5 cmt. c.

      . The Osguthorpes also argue the lease grants only a license to the Canyons. A license "is the permission or authority to engage in a particular act or series of acts upon the land of another without possessing an interest therein.” Keller v. Southwood N. Med. Pavilion, Inc., 959 P.2d 102, 107 (Utah 1998) (quotations and citation omitted). The lease grants the Canyons the right to specific portions of the disputed property and it does so for twenty-eight years at a fixed annual rent. Although the Osguthorpes retain the right to improve the disputed property, they could not, under the original lease or first amendment, interfere with the Canyons' operations and cannot, under the second amendment, unreasonably interfere with the Canyons’ winter operations. Thus, the district court appropriately acknowledged tire Canyons has possession rights under the lease. Moreover, the lease allows the Canyons to malte certain improvements to the property and the Canyons has in fact constructed and maintained ski lifts, roads, trails, and facilities on the property. Given that the Canyons has tire right to run its operations with limited interference and to construct roads and trails, the tenancy term, and the fixed annual rent under the lease, we conclude the lease involves more than "permission or authority to engage in a particular act or series of acts upon the land." Id.


source: Caselaw Access Project

author: ORME, Judge:

license: Public Domain

text:
    2002 UT App 357
    OGDEN CITY, Plaintiff and Appellee, v. Wesley STITES, Defendant and Appellant.
    No. 20000571-CA.
    Court of Appeals of Utah.
    Oct. 31, 2002.

      Ted K. Godfrey, Ogden, for Appellant.
    Michael S. Junk, Assistant Ogden City Attorney, for Appellee.
    Before Judges BILLINGS, DAVIS, and ORME.
   MEMORANDUM DECISION

ORME, Judge:

¶ 1 On August 16, 2000, Ted K. Godfrey was appointed to represent Defendant in his appeal from his conviction for carrying a concealed dangerous weapon in violation of Utah Code Ann. § 76-10-504(1) (1999), a class B misdemeanor, and from his conviction of driving on suspension or revocation in violation of Utah Code Ann. § 53-3-227(1) (1999), a class C misdemeanor. Godfrey first attempted to withdraw in conjunction with the filing of an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Wells, 2002 UT App 304, 13 P.3d 1056 (per curiam). Due to its substantive and procedural defects, the brief was stricken by this court on December 31, 2001. Accordingly, we also denied, without prejudice, Godfrey’s request to withdraw as counsel. This court then ordered Godfrey to submit either an adequate Anders brief or a regular appellant’s brief within thirty days. After multiple requests for extensions of time, Godfrey submitted an appellant’s brief on April 8, 2002.

¶ 2 Defendant’s case has now been assigned to the above-identified panel for disposition on the merits. In the course of our review, we have become concerned about the quality of representation Defendant has received on appeal. Godfrey’s long-delayed appellant’s brief purports to address Defen--dant’s Fourth Amendment claims with one and one-half double-spaced pages of argument and two case citations. More importantly, although these Fourth Amendment claims were not preserved for appeal, God-frey’s brief entirely fails to address plain error, a discussion that is necessary any time a party seeks appellate review of a claim that is “raised for the first time on appeal.” State v. Helmick, 2000 UT 70, ¶ 8, 9 P.3d 164. See Utah R.App. P. 24(a)(5)(B) (“The brief of the appellant shall contain ... a statement of grounds for seeking review of an issue not preserved in the trial court.”). We think nearly a hundred days is more than enough time to prepare Defendant’s substitute brief in a professional manner. While the workload of a public defender may explain the need for extensions of time, it does not excuse the wholly inadequate brief ultimately filed.

¶ 3 Accordingly, Godfrey is discharged as Defendant’s counsel in this appeal. The case is temporarily remanded to the trial court for the prompt appointment of new counsel for Defendant, which counsel shall have recognized expertise in criminal appellate practice and a caseload and work ethic that will permit immediate and sustained attention to this matter. Such counsel shall be directed to review the record and confer with Defendant and file a new brief on behalf of Defendant in this case. Said brief shall be filed within sixty days of the date such counsel is appointed. During the limited remand, this court otherwise retains jurisdiction over the appeal.

¶ 4 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and JAMES Z. DAVIS, Judge.

      . Although Defendant’s handwritten notice of appeal indicated he wanted to appeal both the "driving on restriction” conviction and the concealed weapon conviction, Godfrey’s briefs addressed only the concealed weapon conviction.

      . We observe that Defendant, who was apparently indigent, proceeded to his jury trial without counsel and was sentenced to ten days in the Weber County Jail on his concealed weapon conviction. Although a minute entry concerning his arraignment suggests that Defendant waived his right to counsel, absent a transcript of that hearing we have no ability to gauge whether Defendant’s waiver was knowing and voluntary. We encourage new counsel to review the transcript of Defendant’s arraignment to ensure that his apparent waiver was appropriate.


author: THORNE, Judge:

text:
    2002 UT App 363
    STATE of Utah, Plaintiff and Appellee, v. Jeffery Ray CHATWIN, Defendant and Appellant.
    No. 20010060-CA.
    Court of Appeals of Utah.
    Nov. 7, 2002.
    Rehearing Denied Dec. 4, 2002.

      Heather Johnson and John D. O’Connell Jr., Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Jeffrey S. Gray, Assistant Attorney General, Salt Lake City, for Appellee.
    Before JACKSON, P.J., and DAVIS, and THORNE, JJ.
   OPINION

THORNE, Judge:

¶ 1 Defendant Jeffery Ray Chatwin appeals from his conviction of aggravated assault, a third degree felony, following a jury trial. We reverse and remand for a new trial.

BACKGROUND

¶ 2 In June of 2000, after being charged with aggravated assault following a reported domestic disturbance, Chatwin pleaded not guilty. The trial court then set a November 21, 2000 trial date. On the morning of November 21, a jury venire was assembled and the trial court conducted voir dire. Following voir dire, the court directed the parties to select the jury.

¶ 3 After the normal process of jury selection was completed, the trial court excused the selected panel to address a concern raised by Chatwin’s counsel. During the exercise of peremptory challenges, Chatwin’s counsel observed that the Prosecutor had struck the sole minority who had been included in the venire. Chatwin’s counsel raised this as a concern to the trial court, and, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the trial court directed the prosecutor to explain his reasons for excusing the minority venire person.

¶ 4 The prosecutor, after briefly challenging whether Chatwin had established a prima facie case of discrimination, explained that he had struck the potential juror not on the basis of race, but because he felt

that this jury would be better able to deliberate the evidence that I anticipated presenting to it if [the jury was] balanced between men and women. I therefore made efforts to take men off of the jury. That may not make a great deal of sense, but that was the game plan. [The venire person] was a man, I took him because he was a man....

Hearing this, Chatwiris counsel then informed the trial court Batson had been extended to prohibit the use of gender, - as well as race, as a reason for exercising a peremptory challenge. See J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). The trial court, however, discounted counsel’s statement, explaining:

Well, I am not prepared to state that the challenge was inappropriate. It appears to me that there’s been a justification for exercising the challenge.... And moreover I’m not persuaded that in a case of this nature, specifically a spousal-abuse type of case, that selecting jurors, be they male or female which the Prosecutor or Defense for that matter decides might be more inclined to adhere to the Prosecution’s theory of the case or the Defense’s theory, for instance, that that was an inappropriate way or manner or justification for a challenge.

Thus, the trial court denied Chatwin’s challenge to the prosecutor’s strike and seated the jury as selected. Chatwin was then tried and convicted of aggravated assault, and subsequently sentenced to spend not more than five years in the Utah State Prison. The trial court, however, suspended this sentence and placed Chatwin on probation for one year. Chatwin now appeals.

ISSUE AND STANDARD OF REVIEW

¶ 5 Chatwin argues that the prosecution’s stated reason for striking the potential juror was not neutral and constituted illegal discrimination. Thus, he continues, the trial court erred in countenancing the prosecutor’s behavior. Absent a showing of clear error, we will not overturn a trial court’s determination concerning the discriminatory intent embodied in a party’s explanation for the exercise of a peremptory challenge. See State v. Cannon, 2002 UT App 18, ¶ 5, 41 P.3d 1153.

ANALYSIS

¶ 6 “[T]he Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges,” J.E.B., 511 U.S. at 128, 114 S.Ct. at 1421, and “intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.” Id. at 130-31, 114 S.Ct. at 1422; accord State v. Shepherd, 1999 UT App 305, ¶ 28, 989 P.2d 503; see also State v. Colwell, 2000 UT 8, ¶ 14-22, 994 P.2d 177. Accordingly, if a party’s reasons for the exercise of a peremptory challenge are discriminatory on their face, the trial court has a duty to disallow that challenge and failure to do so constitutes clear error that will result in our reversing an otherwise error-free conviction, and remanding the case for a new trial. See J.E.B., 511 U.S. at 145-46, 114 S.Ct. at 1430; Cannon, 2002 UT App 18 at ¶¶ 11-13, 41 P.3d 1153.

¶ 7 To limit the possibility of discrimination creeping into our jury selection process, we have developed a body of law that establishes a well-defined path that must be followed once the opponent to a peremptory strike establishes a prima facie case of unlawful discrimination regarding that strike (or series of strikes). See, e.g., Colwell, 2000 UT 8 at ¶ 17, 994 P.2d 177; Cannon, 2002 UT App 18 at ¶¶ 6-13, 41 P.3d 1153; Shepherd, 1999 UT App 305 at ¶¶ 28-29, 989 P.2d 503. Under our jurisprudence, once the pri-ma facie case has been established, the proponent of a peremptory strike must provide the trial court with a neutral explanation. See Colwell, 2000 UT 8 at ¶¶ 17,19, 994 P.2d 177; Cannon, 2002 UT App 18 at ¶¶ 6-13, 41 P.3d 1153; Shepherd, 1999 UT App 305 at ¶28, 989 P.2d 503. And while the United States Supreme Court has determined that this explanation need be neither genuinely persuasive nor even entirely plausible, see Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (per cu-riam), in Utah the reasons given for striking a potential juror must be, at the very least, facially neutral, reasonably clear and specific, related to the case being tried, and legitimate. See Cannon, 2002 UT App 18 at ¶ 9, 41 P.3d 1153. Finally, should the strike’s proponent tender a neutral explanation, the trial court must then look beyond the explanation, if possible, to determine whether the strike was purposefully discriminatory. See id. at ¶ 13

¶ 8 Here, in response to the argument mounted by Chatwin on appeal, the State asserts that at trial Chatwin failed to carry his burden of establishing a prima facie case of discrimination. Thus, the State continues, the trial court erred in requiring the Prosecutor to explain his reason for striking the potential juror. However, we conclude that because Chatwin raised this issue in the context of Batson and under the Federal Equal Protection Clause, this issue is controlled by the rule established in Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). In Hernandez, the State of New York offered an argument similar to the argument offered by the State in the instant case. See id. at 359, 111 S.Ct. at 1866. There, after the defendant had raised an objection to the prosecutor’s use of peremptory challenges to exclude potential Latino jurors from the panel, the prosecutor offered his reasons for the challenges “without any prompting or inquiry from the trial court.” Id.

¶ 9 On appeal, the Supreme Court was not concerned with the effect of the prosecutor’s decision to offer an explanation or the trial court’s acquiescence with the prosecutor’s decision. See id. Instead, the Court determined that “[ojnce a prosecutor has offered [an] explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot.” Id. While we see no reason this rule should not apply equally to cases involving alleged gender discrimination, in the instant case, Chatwin’s initial challenge focused on the excused juror’s minority status; thus, the Hernandez rule is clearly applicable.

¶ 10 Therefore, because the prosecutor offered an explanation for his peremptory challenge and the trial court ruled on the ultimate question, we conclude that any discussion concerning Chatwin’s attempt to establish a prima facie case is moot. Accordingly, we focus our analysis on the Prosecutor’s explanation and, if necessary, the trial court’s conclusions concerning the Prosecutor’s explanation.

¶ 11 Chatwin argues that the explanation proffered by the Prosecutor in defense of his peremptory challenge clearly violated both the spirit and the letter of the Equal Protection Clause as highlighted by J.E.B. See J.E.B., 511 U.S. at 145,114 S.Ct. at 1430. In response, the State arg-ues that Chatwin has misinterpreted the scope of J.E.B. and that the Prosecutor’s strike was neither gender-based nor did it violate the principles articulated in J.E.B. In making this argument, the State offers three alternative explanations. We address each in turn.

¶ 12 At oral argument the State asserted that because this case involves gender and not race, the explanation of the Prosecutor and the decision of the trial court are subject to a less rigorous standard of review. Compare Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 2113, 132 L.Ed.2d 158 (1995) (“[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.”), with Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982) (stating that state action involving gender classification must serve an important governmental objective and be substantially related to the achievement of that objective). However, not only was this argument made for the first time at oral argument and unsupported by any relevant case law, our review of the relevant case law suggests that it is wholly inapplicable. See Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 109, 122 S.Ct. 511, 513-14, 151 L.Ed.2d 489 (2001) (per curiam) (stating “application of our [heightened] scrutiny standard should be addressed in the first instance by the lower courts” (quotations and citation omitted)).

¶ 13 Rather, we conclude that the plain language of J.E.B. itself provides the proper analytical framework for examining any possible equal protection violations during jury selection. In J.E.B., the Court stated that “[w]hen persons are excluded from participation in our democratic processes solely because of [either] race or gender, [the] promise of equity dims, and the integrity of our judicial system is jeopardized.” 511 U.S. at 146, 114 S.Ct. at 1430. Moreover, the Court categorically stated that “[flailing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself.” Id. at 145, 114 S.Ct. at 1430 (emphasis added). Thus, contrary to the State’s suggestion at oral argument, possible gender discrimination in the jury selection process is subject to the same examination as possible racial discrimination. See id. at 154-55, 114 S.Ct. at 1435 (Rehnquist, C.J., dissenting) (arguing that the court erred in failing to apply intermediate scrutiny).

¶ 14 Accordingly, J.E.B. mandates that whether the perceived discrimination involves race or gender, the responsible party must provide a facially neutral explanation for the strike or the peremptory challenge violates equal protection. See id. at 145, 114 S.Ct. at 1430. Should the record support a finding that the prosecutor provided the trial court, with a facially neutral explanation, regardless of whether the challenger’s objection is based upon race or gender, we then review the trial court’s findings for clear error. See Cannon, 2002 UT App 18 at ¶ 5, 41 P.3d 1153. Therefore, contrary to the State’s position at oral argument, we examine the record to first determine whether the prosecutor’s explanation was neutral on its face, and then, if necessary, we proceed to examine the trial court’s findings and conclusions.

¶ 15 The State next argues that rather than eliminating gender as an acceptable reason for a peremptory challenge, J.E.B. merely forbids the use of gender stereotypes in peremptory challenges. We disagree.

¶ 16 In J.E.B, the respondent, the State of Alabama, filed a paternity suit against the petitioner and used its peremptory challenges solely for the purpose of removing male jurors from the jury pool. See J.E.B., 511 U.S. at 129, 114 S.Ct. at 1422. The petitioner appealed on equal protection grounds and the Supreme Court stated unequivocally that “gender, like racé, is an unconstitutional proxy for juror competence and impartiality.” Id. at 129, 114 S.Ct. at 1421. .

¶ 17 In arriving at this conclusion, the Court noted that “[b]eeause [gender] stereotypes have wreaked injustice in so many other spheres of our country’s public life, active discrimination by litigants on the basis of gender during the jury selection invites cynicism respecting the jury’s neutrality and its obligation to adhere to the law.” Id. at 140, 114 S.Ct. at 1427 (quotations and citation omitted). Thus, the Court continued, gender-related peremptory challenges are extremely suspect “in cases, where gender-related issues are prominent, such as cases involving rape, sexual harassment, or paternity.” Id. The Court’s concern, therefore, focused not simply on stereotypes, but on any .use of gender in the jury selection process. After reviewing J.E.B., we conclude that the Supreme Court’s discussion of stereotypes merely highlighted the fallacious reasoning that often underlies gender discrimination and it was not intended to permit so-called “non-stereotypical discrimination” as suggested by the State. Accordingly, the State’s position concerning the central holding of J.E.B. is without merit and we conclude that gender is an impermissible reason for a party to strike a potential juror.

¶ 18 The State’s final argument is that rather than evidencing an intent to discriminate on the basis of gender, the Prosecutor’s explanation was merely an attempt to balance the composition of the jury to reflect the views of both men and women. Moreover, the State continues, such a rationale does not violate the precepts of J.E.B. In making this argument, the State seizes upon certain language contained in J.E.B. for support. See id. at 141-42, 114 S.Ct. at 1428. However, our reading of this language, and its surrounding sections, suggests that the Court was merely explaining its rationale for prohibiting the use of gender in the exercise of peremptory challenges, not creating an exception. See id. In addition to noting that “gender, like race, is an unconstitutional proxy for juror competence and impartiality,” id. at 129,114 S.Ct. at 1421, the Court stated that

[a]ll persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination. Striking individual jurors on the assumption that they hold particular views simply because of their gender is “practically a brand upon them, affixed by the law, an assertion of their inferiority.”

Id. at 141-42, 114 S.Ct. at 1428 (emphasis added) (footnote omitted) (quoting Strauder v. West Virginia, 100 U.S. 303, 306, 25 L.Ed. 664 (1880)). Finally, the Court concluded that

the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man. As with race, the “core guarantee of equal protection, ensuring citizens that their State will not discriminate ..., would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ [gender].”

Id. at 146, 114 S.Ct. at 1430 (alterations in original) (emphasis added) (quoting Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723). From this language, we conclude that a proponent of a peremptory challenge violates equal protection when that proponent relies upon either race or gender when explaining the reasons underlying a peremptory challenge.

¶ 19 Here, contrary to the State’s argument, the Prosecutor’s explanation for the challenge to the potential juror was clearly gender-based. While the State suggests that the Prosecutor’s intent was to seat “a jury composed of a fair cross-section of the community,” not to remove jurors based on gender, the Constitution does not guarantee either the State or a defendant a jury comprised of any specific gender balance or composition. See id. at 128, 114 S.Ct. at 1421; Cf. Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975) (articulating a similar principle as applied to the racial composition of a jury). Rather, the Constitution guarantees only that every defendant will be tried by a jury whose members are selected pursuant to “nondiscriminatory criteria.” Batson, 476 U.S. at 85-86, 106 S.Ct. at 1717. In attempting to create gender balance in the jury, the Prosecutor, by necessity, was forced to dismiss at least one potential juror on the basis of gender. Thus, the Prosecutor’s criteria was discriminatory and in violation of the potential juror’s equal protection rights.

¶ 20 Ordinarily, following our examination of the reasons proffered to explain a peremptory challenge, our focus would shift to examining the trial court’s conclusions. See Colwell, 2000 UT 8 at ¶20, 994 P.2d 177. However, because it is clear that the prosecutor failed to provide a facially neutral explanation for his peremptory strike of the potential juror, and instead provided a reason that violated equal protection guarantees, we conclude as a matter of law that the trial court clearly erred in allowing the prosecutor to strike the potential juror. ■ Contrary to the trial court’s belief, there are no circumstances under which a party is permitted to publicly rely upon an impermissible classification to make decisions concerning the composition of a jury. To hold otherwise would undermine the purpose outlined in both Batson and J.E.B.: to protect the integrity of the jury system and to ensure that potential jurors are not purposefully excluded through impermissible classifications, whether or not a party believes that it may factor into its eventual success or failure. See Ex Parte State of Alabama, 659 So.2d 169,174 (Ala.1995).

CONCLUSION

¶ 21 We therefore reverse Chatwin’s conviction and remand for a new trial.

¶ 22 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JAMES Z. DAVIS, Judge.

      . We acknowledge that, unlike the situation presented in Hernandez, here the prosecutor attempted to argue that Chatwin had failed to establish a prima facie case prior to providing the required explanation. See Hernandez v. New York, 500 U.S. 352, 356, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). We do not, however, see this as material to our analysis.

      . The State, in its brief, points to a number of cases from outside this jurisdiction to support its argument. However, after reviewing these cases, we conclude that they offer little or no assistance to the State’s cause. Rather, as identified by the State, each of these cases deals with the so called "dual motivation” analysis, which has been adopted by a number of jurisdictions to avoid reversal when a party provides a clearly discriminatory rationale for exercising a peremptory challenge, but also provides at least one neutral explanation. See, e.g., United States v. Tokars, 95 F.3d 1520, 1533-34 (11th Cir.1996); People v. Hudson, 195 Ill.2d 117, 253 Ill.Dec. 712, 745 N.E.2d 1246, 1256-58 (2001). Because the Prosecutor in the instant case offered no neutral explanation to support his peremptory strike, we do not believe these cases offer any assistance to our analysis. Moreover, we have not adopted the "dual motivation” analysis and we conclude that this case does not present the proper case for its consideration.


text:
    2002 UT App 371
    Marcos L. LORENZO, Petitioner, v. WORKFORCE APPEALS BOARD, Division of Workforce Services, Respondent.
    No. 20020084-CA.
    Court of Appeals of Utah.
    Nov. 7, 2002.

      L. Kathleen Ferro, Utah Legal Services, Salt Lake City, for Petitioner.
    H. Craig Bunker, Department of Workforce Services, Salt Lake City, for Respondent.
    Before BILLINGS, Associate P.J., BENCH, and GREENWOOD, JJ.
   OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 Petitioner Marcos Lorenzo appeals from a Workforce Appeals Board (the Board) decision affirming the Department of Work Force Services’ (the Department) assessment of a civil penalty against him for unemployment insurance fraud. We reverse.

BACKGROUND

¶ 2 On January 29, 1999, Petitioner filed a claim for unemployment insurance benefits. Petitioner was working part-time. The Department determined Petitioner was eligible for benefits, effective January 24, 1999, and awarded Petitioner a weekly benefit of $297. Thereafter, Petitioner reported earnings each week until August 14, 1999. Based on Petitioner’s reports, the Department paid weekly benefits to Petitioner.

¶ 3 On January 17, 2000, the Department requested earnings information from Petitioner’s employers. On February 28, 2000, the Department received earnings reports from these employers. The reports indicated that Petitioner had earned more each week than he had reported to the Department.

¶ 4 Based on the reports, and after further investigation, the Department determined that Petitioner failed to accurately report earnings and therefore knowingly withheld information to receive benefits to which he was not entitled in violation of the Employment Security Act. See Utah Code Ann. § 35A-4-101 to -508 (2001). On July 13, 2001, the Department issued a Decision of Eligibility for Unemployment Insurance Benefits and Notice of Overpayment (the notice). The notice provided that based upon his actual earnings, Petitioner was ineligible for benefits for the weeks between January 24, 1999 and August 14, 1999. Pursuant to the Employment Security Act, the Department assessed an “overpayment” of $5,893, for the benefits Petitioner actually received, and a civil penalty of $5,893, for the amount of benefits Petitioner received as a direct-result of his fraud. The Department also disqualified Petitioner from receiving benefits for forty-nine additional weeks.

¶5 Petitioner appealed the Department’s decision to the Department’s appeals section. At a hearing before the Administrative Law Judge (ALJ), Petitioner moved to dismiss the civil penalty, contending the Department failed to seek the penalty within the one-year statute of limitation for an action upon a statute for a penalty to the state. See Utah Code Ann. § 78-12-29(3) (Supp.2002). Thereafter, the ALJ denied Petitioner’s motion to dismiss.

¶ 6 Petitioner appealed the ALJ’s decision to the Board, again, contending the Department failed to bring an action for the civil penalty within the statute of limitation in Utah Code Ann. § 78-12-29(3) and contending the ALJ erred in determining the Employment Security Act provided a different limitation for the penalty assessment. The Board affirmed the ALJ’s decision and Petitioner filed this petition for review.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Petitioner argues the Board erred in concluding that section 78-12-29(3) does not bar the assessment of a civil penalty and in concluding that the Employment Security Act grants the Department continuous jurisdiction to assess the civil penalty. “The standard we apply when an agency interprets ... [a] non-agency specific legislative aet[ ] is ... ‘a correction of error standard, giving no deference to the agency’s decision.’ ” King v. Industrial Comm’n of Utah, 850 P.2d 1281, 1285 (Utah Ct.App.1993) (citation omitted). Further, because we must interpret the interplay among sections of the Employment Security Act and the relevant sections do not grant the Board discretion to decide whether the act provides a different statute of limitation governing the penalty assessment, we review the Board’s conclusion for correctness. See Burgess v. Siaperas Sand & Gravel, 965 P.2d 583, 585 (Utah Ct.App.1998).

ANALYSIS

¶ 8 Petitioner maintains the general statute of limitation for an action upon a statute for a penalty to the state in section 78-12-29(3) bars the Department’s assessment of the civil penalty in this case. Section 78-12-29(3) provides, “An action may be brought within one year: ... (3) upon a statute ... for a forfeiture or penalty to the state.”

¶ 9 Both parties agree the Department’s cause of action accrued when Petitioner misrepresented his weekly earnings in 1999. See Utah Code Ann. § 35A-ri^405(5) (providing that claimant is ineligible for benefits each week claimant willfully makes false statement to obtain benefits and providing for repayment of benefits actually received and civil penalty in amount claimant received by direct reason of fraud). The parties also agree the statute of limitation was tolled by the discovery rule until February 28, 2000, when the Department received the earnings reports from Petitioner’s employers indicating Petitioner misrepresented his earnings. The Department did not commence an action until at least July 13, 2001, when it issued the notice of overpayment, which was beyond the one-year statute of limitation for an action upon a statute for a penalty to the state. See Utah Code Ann. § 78-12-29(3). Thus, we agree with Petitioner that section 78-12-29(3) bars the penalty assessment unless the Employment Security Act provides a different statute of limitation.

¶ 10 The Board concluded that section 35A-4-^406 of the Employment Security Act provides a different statute of limitation “through a grant of continuous jurisdiction” to assess civil penalties for unemployment fraud. In relevant part, section 35A-4-406 provides:

Claims for benefits — Continuing jurisdiction — Appeal—Notice of decision — Repayment of benefits fraudulently received.
(1) (a) Claims for benefits shall be made and shall be determined by the division or referred to an administrative law judge in accordance with rules adopted by the department.
(2) (a) Jurisdiction over benefits shall be continuous.
(b) Upon its own initiative or upon application of any party affected, the division may on the basis of change in conditions or because of a mistake as to facts, review a decision allowing or disallowing in whole or in part a claim for benefits.
(c) The review shall be conducted in accordance with rules adopted by the department and may result in a new decision that may award, terminate, continue, increase, or decrease benefits, or may result in a referral of the claim to an appeal tribunal.
(f) A review may not be made after one year from the date of the original determination, except in cases of fraud or claimant fault as provided in Subsection (4).
(4) (a) Any person who, by reason of his fraud, has received any sum as benefits under this chapter to which he was not entitled shall repay the sum to the division for the fund.

¶ 11 “The plain language controls the interpretation of a statute, and only if there is ambiguity do we look beyond the plain language.... ” Vigos v. Mountainland Builders, Inc., 2000 UT 2, ¶ 13, 993 P.2d 207. Further, “Unambiguous language ... may not be interpreted to contradict its plain meaning.” Zoll & Branch, P.C. v. Asay, 932 P.2d 592, 594 (Utah 1997). We also “avoid adding to or deleting from statutory language, unless absolutely necessary to make it a rational statute.” Luckau v. Board of Rev., 840 P.2d 811, 815 (Utah Ct.App.1992) (quotations and citation omitted).

¶ 12 The plain language of subsection 35A-4-406(2)(a) provides that the Department’s jurisdiction over “benefits” is continuous. The Employment Security Act defines “benefits” as “the money payments payable to an individual as provided in this chapter with respect to the individual’s unemployment.” Utah Code Ann. § 35A-4-201(3). The Department claims the term “benefits” includes civil penalties.

¶ 13 However, nowhere in section 35A-4-406, which grants continuous jurisdiction, is there any mention of civil penalties. “[Wjhere the statutory language is plain and unambiguous, we do not look beyond the language’s plain meaning to divine legislative intent.” State v. Kenison, 2000 UT App 322, ¶ 10, 14 P.3d 129 (quotations and citation omitted) (alteration in original). If the legislature intended to extend continuous jurisdiction to collection of civil penalties, it could have so “stated its intention.” Hebertson v. Bank One, Utah, 1999 UT App 342, ¶ 13, 995 P.2d 7; see also Bourgeos v. Utah Dep’t of Commerce, 2002 UT App 5, ¶ 21, 41 P.3d 461. Thus, we conclude the plain language of section 35A-4-406 grants continuous jurisdiction only to the collection of benefit overpayments received by fault or fraud and not to the collection of civil penalties.

¶ 14 The Department argues that because section 35A-4-305 links the collection of contributions, benefit overpayments, and civil penalties, we should extend continuous jurisdiction to the collection of civil penalties. We are not persuaded. The plain language of sectiojn 35A-4-406 grants continuous jurisdiction only to the collection of benefits paid as a result of fraud or fault. We therefore reverse the collection of the $5,893 penalty as the Department did not have jurisdiction to collect the penalty under sections 35A-4-406 and 78-12-29(3).

¶ 15 WE CONCUR: RUSSELL W. BENCH and PAMELA T. GREENWOOD, Judges.

      . Petitioner does not challenge the Department's imposition of the disqualification period.

      . Section 35A-4-305 provides in part:
      Collection of contributions — Unpaid contributions to bear interest.
      (1)....
      (d) The division shall assess as a penalty a service charge, in addition to any other penalties that may apply, in an amount not to exceed the service charge imposed by Section 7-15-1 for dishonored instruments if:
      (i) any amount due the division for contributions, interest, other penalties or benefit overpayments is paid by check, draft, order, or other instrument; and (ii) the instrument is dishonored or not paid by the institution against which it is drawn.
      (e) Except for benefit overpayments under Subsection 35A-4-405(5), benefit overpay-ments, contributions, interest, penalties, and assessed costs, uncollected three years after they become due, may be charged as uncollectible and removed from the records of the division if:
      (i) no assets belonging to the liable person and subject to attachment can be found; and
      (ii) in the opinion of the division there is no likelihood of collection at a future date.
      (g) Action required for the collection of sums due under this chapter is subject to the applicable limitations of actions under Title 78, Chapter 12, Limitation of Actions.
      (3) (a) If, after due notice, any employer defaults in any payment of contributions, interest, or penalties on the contributions, or any claimant defaults in any repayment of benefit overpayments and penalties on the overpay-ments, the amount due shall be collectible by civil action in the name of the division, and the employer adjudged in default shall pay the costs of the action.


author: JACKSON, Presiding Judge.

text:
    2002 UT App 372
    Suzanne DOWLING fka Suzanne Hoagland, Plaintiff and Appellant, v. Kathleen BULLEN; Trolley Corners Family Therapy Clinic, a general partnership; Canyon Rim Psychotherapy; and John Does 1 through 20, Defendants and Appellee.
    No. 20010961-CA.
    Court of Appeals of Utah.
    Nov. 7, 2002.
    Kathleen M. McConkie, Wingo & Rinehart, Salt Lake City, for Appellant.
    Phillip S. Ferguson, Christensen & Jensen PC, Salt Lake City, for Appellee.
    Before Judges JACKSON, BILLINGS, and THORNE.
   OPINION

JACKSON, Presiding Judge.

¶ 1 Appellant Suzanne Dowling appeals the trial court’s grant of summary judgment to Appellee Kathleen Bullen. We reverse and remand.

BACKGROUND

¶ 2 The operative facts of this case are undisputed, and we will recite them as contained in the trial court’s summary judgment order, dated November 19, 2001. In late 1994, Dowling’s daughters began receiving counseling from Bullen, a licenced clinical social worker. Dowling and her then husband, James, also began “individual therapy” with Bullen. In January 1996, James filed for divorce. By June 1996, Dowling’s family had completely discontinued counseling with Bullen at Bullen’s recommendation. On September 26, 1996, a divorce decree issued. At approximately the same time, James and Bullen announced their intention to marry, and Dowling received information indicating that Bullen had initiated an intimate relationship with James during the course of counseling and prior to the filing of the petition for divorce.

¶ 3 On September 25, 2000, Dowling filed suit for, inter alia, alienation of affections. Bullen filed a motion for summary judgment on grounds that the action was barred by the two-year statute of limitations in Utah Code Ann. § 78-14-4 (1996) (the Utah Health Care Malpractice Act, referred to hereinafter as “the Act”). The trial court granted Bullen’s motion for summary judgment. The court concluded that the Act applied because the behavior complained of was “related to and [arose] out of the mental health treatment Ms. Bullen provided to [Dowling] and [Dowl-ing’s] family,” thus bringing the action within the Act’s purview. Dowling appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 4 “ ‘We review the trial court’s grant or denial of a motion for summary judgment for correctness and accord no deference to the trial court’s conclusions of law.’ ” Parduhn v. Bennett, 2002 UT 93, ¶ 5, 455 Utah Adv. Rep. 61 (quoting Malibu Inv. Corp. v. Sparks, 2000 UT 30, ¶ 12, 996 P.2d 1043).

¶ 5 Dowling challenges the trial court’s conclusion that the Act’s two-year statute of limitations applies to her action for alienation of affections. She argues that the behavior complained of did not “relatfe] to or arise[] out of health care rendered or which should have been rendered by” Bullen. Utah Code Ann. § 78-14-3(15) (Supp.2002) (defining “Malpractice action[s]” covered by the Act). “ ‘The interpretation of a statute ... presents a question of law, which this court reviews for correctness.’ ” Parks v. Utah Transit Auth., 2002 UT 55,¶ 4, 53 P.3d 473 (citing State v. James, 819 P.2d 781, 796 (Utah 1991)).

ANALYSIS

¶ 6 “A trial court may properly grant summary judgment 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.’ ... In deciding whether summary judgment was appropriate, we need review only whether the trial court erred in applying the relevant law and whether a material fact was in dispute.” WebBank v. American Gen. Annuity Serv. Corp., 2002 UT 88,¶ 10, 454 Utah Adv. Rep. 48, 54 P.3d 1139 (quoting Utah R. Civ. P. 56(c); other citations omitted).

¶ 7 Dowling argues that even if no genuine issues of material fact existed, Bul-len was not entitled to judgment as a matter of law because her behavior was unrelated to the medical treatment she provided. Thus, Dowling argues, the Act’s two-year statute of limitations does not apply to her action for alienation of affections. Instead, Dowling contends the general four-year statute of limitations contained in Utah Code Ann. § 78-12-25 (1996) applies, and the trial court thus erred in awarding Bullen summary judgment.

¶ 8 Section 78-14-3(15) provides:

“Malpractice action against a health care provider” means any action against a health care provider, whether in contract, tort, breach of warranty, wrongful death, or otherwise, based upon alleged personal injuries relating to or arising out of health care rendered or which should have been rendered by the health care provider.

Utah Code Ann. § 78-14-3(15) (emphasis added). Bullen urges that the alleged injuries “aris[e] out of [the] health care” she provided, id., because without having provided counseling services Bullen never would have been in a position to develop a relationship with James.

¶ 9 However, “[s]ubsections of a statute should not be construed in a vacuum but must be read as part of the statute as a whole.” Utah County v. Orem City, 699 P.2d 707, 709 (Utah 1985). The Act’s statute of limitations does not automatically apply to any cause of action simply because a health care provider provided health care. Section 78-14-3(10) provides: “ ‘Health care’ means any act or treatment performed or furnished ... by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Utah Code Ann. § 78-14-3(10) (emphasis added). Reading this definition of health care alongside section 78-14-3(15), which requires that the injuries relate to or arise out of “health care,” Utah Code Ann. § 78-14-3(15), the Act requires that the health care in question must have been provided to the complaining patient.

¶ 10 In this case, Bullen provided individual treatment to both James and Dowling. However, the alleged alienation of affections, while arguably “relating to or arising out of health care rendered” to James, id., did not relate to or arise out of the health care rendered to Dowling. Dowling, the patient, has not complained of “any act or treatment performed or furnished ... by [Bullen] for, to, or on behalf of [Dowling] during [Dowl-ing]’s medical care, treatment, or confinement.” Utah Code Ann. § 78-14-3(10). Thus, we conclude that the Act, when read as a whole, does not apply to Dowling’s alienation of affections claim since Dowling is not “the patient[ ],” id., out of whose health care the alleged wrong arose.

¶ 11 Accordingly, the trial court erred in applying the Act’s two-year statute of limitations. We reverse the trial court’s grant of summary judgment and remand for proceedings consistent with this opinion.

¶ 12 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and WILLIAM A. THORNE JR., Judge.

      . For purposes of summary judgment, Bullen admitted all the facts outlined in Dowling's complaint.

      . Because we reverse the trial court’s ruling, we do not address Dowling's argument regarding intentional infliction of emotional distress.