text:
    2003 UT 39
    Richard K. SPRATLEY and Brett G. Pearce, Plaintiffs and Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Michael Arnold, Craig Kingman, Scott D. Kotter, and Harold E. Nixon, Defendants and Appellees.
    Nos. 20011002, 20011003.
    Supreme Court of Utah.
    Sept. 23, 2003.
    Rehearing Denied Sept. 19, 2003.

      Richard K. Spratley, Brett G. Pearce, L. Rich Humpherys, Karra J. Porter, Salt Lake City, for plaintiffs.
    Alan L. Sullivan, Seott C. Sandberg, Salt Lake City, for defendants.
   AMENDED OPINION

WILKINS, Justice:

T1 We granted this interlocutory appeal by plaintiffs Richard Spratley and Brett Pearce to review the trial court's December 7, 2001 order requiring Spratley and Pearce, attorneys who formerly represented State Farm Mutual Automobile Insurance Company ("State Farm") and its insureds, to "refrain from disclosing" certain communications and facts relating to that representation, to return to State Farm documents that Spratley and Pearce retained from the representation, and disqualifying Spratley and Pearce's chosen legal counsel, L. Rich Humpherys, and his law firm, Christensen & Jensen, from further representation of Spratley and Pearce. We affirm in part, reverse in part, and remand to the trial court for further proceedings.

FACTUAL BACKGROUND

12 The complex relationship between the parties to this case spans a number of years. Spratley began his relationship with State Farm in 1987, working as State Farm's sole in-house lawyer in Salt Lake City before transferring temporarily to State Farm's headquarters in Illinois. Beginning in the early 1990s, Spratley and Pearce worked together as Claims Litigation Counsel (CLC) for State Farm in the Salt Lake City CLC office. In this capacity Spratley and Pearce represented both State Farm and its insureds. During that representation, Sprat-ley and Pearce allege that State Farm required them to violate many of their ethical duties as attorneys and punished them when they did not. Concluding that they could not meet their ethical duties as attorneys and comply with allegedly unlawful and unethical demands placed on them by State Farm, Spratley and Pearce resigned their employment with State Farm in June 2000. Upon their departure, Spratley and Pearce retained copies of many allegedly confidential documents and materials, some of which State Farm contends were improperly appended to the complaint.

PROCEDURAL BACKGROUND

T3 Spratley and Pearce ultimately sued State Farm for (1) misrepresentation and nondisclosure; (2) tortious interference with business relations; (8) retaliation and termination in violation of public policy; (4) breach of the covenant of good faith and fair dealing; (5) breach of the employment contract; (6) wrongful discharge and employment termination; and (7) intentional infliction of emotional distress. The trial court's later dismissal of the second and sixth causes of action is not challenged on appeal. As noted above, the complaint contained appendices, some of which State Farm argues were confidential documents. Pursuant to a separate trial court order, affidavits subsequently submitted by Spratley and Pearce were filed under seal, as were the briefs to this court.

T4 At all times during the prosecution of Spratley and Pearce's claims, they have been represented by attorney L. Rich Humpherys and his firm, Christensen & Jensen. Numerous other litigants have employed Hum-pherys and his firm for representation against State Farm in their separate cases.

15 Fearing further disclosure of what it viewed as confidential communications and information, State Farm filed a motion for a preliminary injunction and protective order concurrent with a separate motion to disqualify Humpherys and his firm from representing Spratley and Pearce. The trial court's response to those motions is the subject of this appeal.

16 After briefing and oral argument by the parties, the trial court entered an order requiring Spratley and Pearce to:

(1) Refrain from disclosing (in this litigation or otherwise) confidential communications and information exchanged between Spratley or Pearce on one hand, and State Farm and/or its insureds on the other hand, relating to the provision of legal services by Spratley, Pearce or other lawyers for State Farm, or made for the purpose of facilitating such legal services;
(2) Refrain from disclosing any facts relating to Spratley or Pearce's representation of State Farm's insureds, absent express consent to disclosure by the insureds; and
(3) Return to State Farm all confidential documents[,] materials, and information that Spratley and Pearce created, maintained, or acquired as part of their employment with State Farm, and that are currently in their possession.

T7 Finding that Spratley and Pearce had divulged confidential information to Hum-pherys and his firm and that the disclosure would taint further proceedings in the case, the court also granted State Farm's motion to disqualify. Spratley, Pearce, and Hum-pherys all filed petitions for interlocutory review, which were ultimately granted by this court along with a stay of certain portions of the trial court's order.

STANDARD OF REVIEW

%8 Both the trial court's grant of a protective order under Rule 26 of the Utah Rules of Civil Procedure and the order of disqualification are reviewed for an abuse of discretion. In re Discipline of Pendleton, 2000 UT 77, ¶38, 11 P.3d 284 (protective order); Houghton v. Dep't of Health, 962 P.2d 58, 61 (Utah 1998) (disqualification). This court, however, has a special interest in the administration of the Rules of Professional Conduct and the discretion granted to the trial court in matters of disqualification is quite limited when there are no factual disputes. Houghton, 962 P.2d at 61.

ANALYSIS

1 9 Our treatment of the trial court's order hinges, in large measure, on the nature of Spratley and Pearce's duties to their former clients, State Farm and its insureds. If the order merely restates Spratley and Pearce's existing duties toward those clients, it is readily sustainable. If, on the other hand, the order prohibits disclosures by Spratley and Pearce that would not otherwise violate their ethical duties as attorneys, it represents an abuse of the trial court's discretion. Accordingly, the exposition of Spratley and Pearce's ethical duties is an appropriate starting point for our analysis.

I. SPRATLEY AND PEARCE'S DUTIES OF CONFIDENTIALITY

A. Existence of Attorney-Client Relationship

110 The duties of confidentiality that control our resolution of the instant case depend upon an attorney-client relationship between Spratley and Pearce and State Farm. Of additional concern to this court are the duties that Spratley and Pearce may have toward State Farm's insureds, whom Spratley and Pearce were hired to defend. Our holding today recognizes that attorneys like Spratley and Pearce primarily represent the insureds they are hired to defend, but may also have an attorney-client relationship giving rise to duties of confidentiality with the insurance company which hires them.

{11 In Paradigm Insurance Co. v. Langerman Law Offices, 200 Ariz. 146, 24 P.3d 593 (2001), the Arizona Supreme Court discussed the tripartite relationship between counsel, insureds, and insurers and followed the majority rule, concluding that in cases where "no question arises regarding the existence and adequacy of coverage, ... we see no reason why the lawyer cannot represent both insurer and insured." Id. at 598. This position merely recognizes the fact that the insurer has an interest in the litigation and a sufficiently strong relationship with the attorney to give rise to the duties that accompany that relationship. Recognizing the relationship is in the best interests of the insurer. This is neatly illustrated by the Paradigm case in which Paradigm was sued for non-payment of fees by a lawyer it hired to represent one of its insureds. Paradigm, arguing that the lawyer was negligent in representing its interests, counterclaimed for damages it incurred when it was forced to pay a claim with its own funds when another payment source existed of which the attorney should have been aware. Id. at 594-95. Paradigm, which had a significant stake in the litigation, rightly sought recompense for the failure of counsel to protect its interests. Recognizing an attorney-client relationship gives the insurer recourse against a negligent attorney who has caused the insurer to pay more than it otherwise might have on a claim. We follow Arizona in adopting the "dual-client" paradigm because it best protects all parties involved. Notwithstanding the propriety of this test, we recognize the potential for conflict that exists in this and any system for handling the tripartite relationship in insurance defense cases.

112 We find the Arizona court's resolution of the potential conflicts of interest appropriate to address the problem. "[In the unique situation in which the lawyer actually represents two clients, he must give primary allegiance to one (the insured) to whom the other (the insurer) owes a duty of providing not only protection, but of doing so fairly and in good faith." Id. (citing Zilisch v. State Farm Mut. Auto. Ins. Co., 196 Ariz. 2834, 995 P.2d 276, 279-80 (2000)). Thus, where no actual conflict exists or is foreseeable, an attorney will ordinarily represent both the interests of the insured and the insurer. However, where actual conflict exists or is likely to arise, the attorney's allegiance is to the insured because of an insurer's duty to provide a defense in good faith.

113 Spratley and Pearce represented State Farm's insureds for many years. They undoubtedly participated in many cases where State Farm was a dual client. Likewise, as Spratley and Pearce acknowledge in their complaint, they provided legal services for both State Farm directly and for its insureds. Thus, they owe an attorney's duties of confidentiality to State Farm and its insureds in connection with that long history of representation.

B. Duty of Confidentiality to Former Client

114 Rule 1.9 of the Utah Rules of Professional Conduct prohibits an attorney from using information relating to his prior representation of a client "to the disadvantage of the former client." Utah R. Profil Conduct 1.9(b). Exceptions exist to this rule for cireumstances allowed in Rule 1.6 or when the information becomes "generally known. Id. Because the information at issue in this case is not generally known," the exceptions in Rule 1.6 determine whether the disclosures were violations of Spratley and Pearce's duties of confidentiality toward State Farm and its insureds.

115 Of the exceptions found in Rule 1.6, only one has any potential application to the facts of this case. The applicable exception allows disclosure "to the extent the lawyer reasonably believes necessary ... [such as] ... [tlo establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." Utah R. Profl Conduct 1.6(b)(8). Thus, if Spratley and Pearce's suit represents a "claim" within the meaning of Rule 1.6, they may make disclosures if they are reasonably necessary to that claim.

16 The question of what matters qualify as claims under Rule 1.6 has not been answered by this court and has been only lightly treated by other authorities. The ABA Model Rules of Professional Conduct's comparable rule, now found therein at Rule 1.6(b)(8), is explained as follows:

With regard to paragraph (b)[(8)], [the old rule} provided that a lawyer may reveal "[elonfidences or secrets necessary to establish or collect his fee...." Paragraph enlarges the exception to include disclosure of information relating to claims by the lawyer other than for the lawyer's fee; for example, recovery of property from the client.

ABA Annotated Model Rules of Profl Conduct 68 (5th ed.20083) (emphasis added). This language clearly indicates that the rule was designed as an expansion beyond the fee disputes and defensive matters that traditionally allowed disclosure of client confidences. The ABA confirmed this intention in a Formal Ethics Opinion, which found the Model Rules did not prohibit the use of confidential information in a suit brought by former in-house counsel. ABA Comm. on Ethics and Profl Responsibility, Formal Op. 01-424. A few other authorities have approved of an expansion of the seope of the "claim or defense" exception in cases involving wrongful discharge claims by former in-house counsel.

117 In a formal ethics opinion of its own, the Oregon State Bar ruled that the "claim or defense" exception to Rule 1.6 plainly permits "disclosure to establish a wrongful discharge claim." Oregon State Bar Legal Ethics Comm., Formal 0p.1994-136 at 3. The plain language of our rule also supports such an interpretation, and representative cases from other jurisdictions illustrate that the policy embodied in Rule 1.6 is in harmony with that interpretation. Burkhart v. Semitool, Inc., 300 Mont. 480, 5 P.3d 1031 (2000); Crews v. Buckman Labs. Int'l, Inc., 78 S.W.3d 852 (Tenn.2002).

118 In both Crews and Burkhart, the respective courts relied, at least in part, on the "claim or defense" exception to Rule 1.6 to justify the disclosure of confidential client information in wrongful discharge suits. 5 P.3d at 1040-42; 78 S.W.3d at 863-64. In Crews, the court noted that "[the very purpose of recognizing an employee's action for retaliatory discharge in violation of public policy is to encourage the employee to protect the public interest," 78 S.W.3d at 860, and concluded that "the 'public interest is better served [when] in-house counsel's resolve to comply with ethical ... duties is strengthened by providing judicial recourse when an employer's demands are in direct and unequivocal conflict with those duties." " Id. at 862 (quoting GTE Prods. Corp. v. Stewart, 421 Mass. 22, 658 N.E.2d 161, 166 (1995). Burkhart relied on language from a related federal case in reaching the same conclusion as the Crews case: " "[a] lawyer ... does not forfeit his rights simply because to prove them he must utilize confidential information. Nor does the client gain the right to cheat the lawyer by imparting confidences to him.' " 5 P.8d at 1041 (quoting Doe v. A Corp., 709 F.2d 1048, 1050 (5th Cir. 1983)).

" 19 Other courts have prevented suits by former in-house counsel where no rule comparable to our Rule 1.6 existed. The case which best embodies the line of reasoning that would prevent such suits is Balla v. Gambro, Inc., 145 Ill.2d 492, 164 IIl. Dec. 892, 584 N.E.2d 104 (1991). In that case, the defendant sold dialysis machines. It received a shipment of machines that failed to meet FDA requirements, which in-house counsel advised the company not to sell. The attorney later learned of the machines' impending sale and renewed his objections, threatening to disclose the sale to the FDA. After being terminated for his threatened disclosure, counsel notified the FDA and sued Gambro for retaliatory discharge.

T 20 Refusing to allow suit, the court spent much of its opinion discussing the need for trust and candid discussion in the attorney-client relationship. 164 Ill.Dec. 892, 584 N.E.2d at 108-11. The court opined that allowing former in-house counsel to sue an employer for employment related claims would cause the employer-client to be hesitant to turn to counsel for advice. Id. 164 Ill.Dec. 892, 584 N.E.2d at 109. However, the dissent argued, inter alia, that the refusal to allow such suits inappropriately placed the cost of an employer's wrongful conduct on the attorney who has chosen to obey strong ethical rules governing his conduct. Id. 164 Ill.Dec. 892, 584 N.E.2d at 118-15. Thus, the dissent's argument echoes the concerns raised in Crews and Burkhart that forbidding suit, as a practical matter, encourages unethical conduct. Despite the countervailing considerations outlined in the opinion of the court in Balla, the plain language of Rule 1.6 and the policy considerations outlined in other cases weigh in favor of allowing disclosure, in a limited fashion, of confidential client information in a suit by former in-house counsel for wrongful discharge.

121 While adopting a literal interpretation of Rule 1.6 that permits revelations of confidential client information, we are careful to note that both former in-house counsel and trial courts must exercise great care in disclosing confidences. See eg., Burkhart, 5 P.3d at 1041-42 (suggesting lawyer make all practicable efforts to limit disclosure, including protective ordérs); Crews, 78 S.W.3d at 864 (noting limited scope of disclosure and suggesting efforts to limit the disclosure, such as protective orders). The professional judgment of the former in-house attorney and the stringent limitations available to trial courts are of paramount importance in restricting disclosures within the bounds of Rule 1.6.

$22 The trial court has numerous tools it must employ to prevent unwarranted disclosure of the confidential information, including " 'the use of sealing and protective orders, limited admissibility of evidence, orders restricting the use of testimony in successive proceedings, and, where appropriate, in camera proceedings" " Fox Searchlight Pictures, Inc. v. Paladino, 106 Cal.Rptr.2d 906, 921, 89 Cal.App.4th 294 (2001) (quoting Gen. Dynamics Corp. v. Superior Court, 7 Cal.4th 1164, 82 Cal.Rptr.2d 1, 876 P.2d 487, 504 (1994)). The liberal use of these tools, and others inherent in a trial court's authority to govern the conduct of proceedings, is a prudent and sufficient safeguard against overbroad disclosure. We note, however, that it remains the attorney's duty to minimize disclosures. While trial courts possess broad protective powers, any disclosures made by the attorney that are not reasonably necessary to the claim may still subject that attorney to professional discipline or litigation sanctions; a trial court's failure to prevent improper disclosure will not be a safe harbor for former in-house counsel who carelessly disclose more than is reasonably necessary to the claim.

II. THE TRIAL COURTS ORDER

123 Having determined that Rule 1.9, by reference to Rule 1.6, allows limited disclosure of confidential material, we now examine the trial court's order in this case. It is evident that portions of the trial court's order cannot be sustained consonant with the provisions of Rules 1.6 and 1.9.

A. Trial Court's Prohibition on Disclosures

1 24 The first part of the trial court's order, prohibiting Spratley and Pearce "from disclosing (in this litigation or otherwise) confidential communications and information exchanged between Spratley or Pearce on one hand, and State Farm and/or its insureds on the other hand" cannot stand in its current form. Because we hold that Spratley and Pearce may disclose information reasonably necessary to establish their claim against State Farm, the trial court's order must be reversed, requiring, as it does, that Spratley and Pearce refrain from any disclosures, even within the litigation.

T25 As noted in our discussion above, Spratley and Pearce may, consistent with their duties under the Rules of Professional Conduct, disclose matters relating to their representation of State Farm in a suit against State Farm, so long as those disclosures are reasonably necessary to that claim. Utah R. Profl Conduct 1.6(b)@8). Thus, within this litigation, Spratley and Pearce may disclose some material that would be precluded under the trial court's order. Disclosure, however, should proceed carefully and under the close supervision of the trial court. The trial court's utilization of the many tools at its disposal must carefully protect and limit disclosures so as to minimize the impact on the parties and the attorney-client relationship while still affording Spratley and Pearce the appropriate measure of justice.

126 Spratley and Pearce have made no claim against the insureds they represented during their employment in the CLC office and are not called upon to defend themselves against claims by those insureds. Accordingly, our pronouncements regarding the ability of Spratley and Pearce to disclose information reasonably necessary to their claim do not apply. However, information which neither discloses, nor from which is ascertainable the identities of former clients may be appropriate. Thus, statistical information or generic summaries of the alleged actions of State Farm in cases where Sprat-ley and Pearce represented its insureds might be permissible. We affirm the portion of the trial court's order that prohibited disclosures of the insured clients' confidential information without the consent of those clients.

B. Trial Court's Order to Return Documents

127 We must limit the trial court's order to Spratley and Pearce to return confidential documents and materials to State Farm to apply only to original documents and materials. Upon the termination of an attorney-client relationship, the client is entitled to possession of its original client file, but the attorney is permitted to retain copies at its own expense. Utah R. Profi Conduct 1.16(d). There is no indication in the record whether the documents retained by Spratley and Pearce are the originals from the client file, or whether Spratley and Pearce retained copies in accordance with Rule 1.16. We remand to the trial court for correct application of the order as modified.

C. Trial Court's Disqualification Order

$28 The trial court, in making its determination on the disqualification issue, employed a standard utilized by our court of appeals in past cases. That standard, explained by the case of Cade v. Zions First National Bank, 956 P.2d 1073, 1081 (Utah Ct.App.1998), would lead to disqualification if Spratley and Pearce had privileged information involving State Farm's trial strategy that was disclosed to Humpherys, and that disclosure threatened to taint the remaining proceedings in the case. Clearly the Cade test was not fashioned to apply to a factual situation like the one now before us and we must reverse the trial court's order of disqualification. We do not disapprove of the test outlined in Cade, only its application to this case.

129 Given our resolution of the trial court's order preventing disclosures in this litigation, we cannot sustain an order of disqualification against Humpherys or his firm. Spratley and Pearce must be able to seek the advice of counsel to prosecute their claim against State Farm. If chosen counsel could be disqualified because of disclosures made by the plaintiffs for the purpose of legal advice and representation, the ability to retain counsel in such matters would be illusory. Under the facts of this case we cannot sanction a result that would deprive Spratley and Pearce of the opportunity to employ counsel.

130 State Farm argues that significant authority for the disqualification it seeks is found in similar cases. It cites cases such as Hull v. Celanese Corp., 513 F.2d 568 (2d Cir.1975), for the proposition that attorneys for former in-house counsel who receive privileged and confidential communications from their client should be disqualified from representing that client. However, State Farm ignores the fact that the attorneys in Hull and other similar cases were disqualified from representing other litigants, not the former in-house counsel. See, eg., id. at 571-72.

Y31 Representing a former in-house attorney as a client and learning the substance of confidential communications does not disqualify an attorney from representing that client, but it may require disqualification of the attorney from representing other clients. State Farm has opposed other litigants represented by Humpherys and his firm, but those cases are not now before us. The disqualification in this case was inappropriate.

CONCLUSION

182 Spratley and Pearce represented State Farm and its insureds for many years and owe lawyers' duties of confidentiality to those former clients. Nevertheless, they may disclose State Farm's client confidences as reasonably necessary to make a claim against State Farm. We reverse the trial court's order insofar as it prohibits disclosures that would be reasonably necessary to Spratley and Pearce's claims against State Farm. We affirm the portion of the trial court's order that requires Spratley and Pearce to obtain the permission of any clients other than State Farm if Spratley and Pearce wish to use those clients' confidences in their suit against State Farm. Because Utah Rule of Professional Conduct 1.16(d) provides that lawyers may retain copies of a former client's file at their own expense after returning the original file to the client, we revise the trial court's order requiring return of confidential documents to State Farm to apply to original documents. We reverse the trial court's order disqualifying Humpherys and Christensen & Jensen from representing Spratley and Pearce in this case because, although Humpherys may have become privy to State Farm's confidential communications with Spratley and Pearce, the remedy of disqualification is inappropriate. Former in-house counsel must be free to employ legal counsel in cases against their former employers and an order of disqualification in this case would prevent Spratley and Pearce from receiving effective legal counsel because any attorney they hired who received enough information to prosecute the suit would be similarly disqualified. Thus, we affirm in part and reverse in part, remanding for proceedings consistent with this opinion.

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

      . The trial court's order does not appear to comply with the requirements of Rule 65A(d) and (e) of the Utah Rules of Civil Procedure for orders granting preliminary injunctions. Accordingly, we will treat the order as a protective order.

      . Spratley and Pearce argue that State Farm waived its privilege for the communications at issue in this case. Part of that argument is that the information became known at the trial court's December 3, 2001 open hearing where some of those communications were discussed. A review of the transcript of that hearing reveals that the discussion of those communications was general in nature and insufficient to render the information either "generally known" or to waive privilege. Utah R. Evid. 507(a) (noting waiver occurs when disclosing a "significant part of the matter"). Additionally, the duties of confidentiality found in the Rules of Professional Conduct are not coextensive with the rules of privilege found in the Rules of Evidence. Utah R. Profil Conduct 1.6, cmt (noting that confidentiality is protected by privilege in the law of evidence, but by "the rule of confidentiality ... in professional ethics"). Thus, privilege might be waived allowing compelled disclosure by an attorney while the duty of confidentiality is still in full force.

      . While we are not called upon to decide the application of the privilege rules to specific communications, we note that our interpretation of Rule 1.6(b)(3) is in harmony with Rule 504(d)(3) of the Utah Rules of Evidence, which exempts from privilege "communication[s] relevant to an issue of breach of duty ... by the client to the lawyer." See Utah R. Evid. 504 advisory committee's note (Rule 504 ""is intended to be consistent with the ethical obligations of confidentiality set forth in Rule 1.6 of the Utah Rules of Professional Conduct."). Likewise, the determination of privilege for discovery purposes under Utah Rules of Civil Procedure 26(b)(1) should be made in harmony with Rule 504 of the Utah Rules of Evidence, which governs the attorney-client privilege. Neither Rule 504(d)(3), which supersedes the privilege rule found at Utah Code Ann. Section 78-24-8(2), nor Rule 1.6(b)(3) contains language limiting its application merely to defensive matters and fee collection, as State Farm urges, and we remain unpersuaded of the wisdom of such a construction.


source: Caselaw Access Project

author: PARRISH, Justice:

license: Public Domain

text:
    2003 UT 40
    UTAH DEPARTMENT OF TRANSPORTATION, Plaintiff and Appellee, v. G. KAY, INC., Defendant and Appellant.
    No. 20020063.
    Supreme Court of Utah.
    Sept. 26, 2003.

      Mark L. Shurtleff, Att'y Gen., Edward O. Ogilvie, Asst. Att'y Gen., Salt Lake City, for plaintiff,
    George K. Fadel, Bountiful, for defendant.
   PARRISH, Justice:

T1 In this interlocutory appeal, we are called upon to examine whether Utah law authorizes condemnation of private property for the purpose of mitigating the environmental impacts of highway construction. Specifically, we are asked to decide whether the Utah Department of Transportation ("UDOT") was authorized to condemn property in order to create a nature preserve in connection with the construction of the Legacy Parkway Project, also known as the Legacy Highway. The trial court held that UDOT had such authority. We affirm.

FACTUAL BACKGROUND

1 2 The proposed Legacy Parkway Project consists of a fourteen-mile highway linking Interstate 215 and the Interstate 15/U.S. Highway 89 interchange in Farmington, Utah. Because construction of the highway would necessitate filling wetlands subject to federal regulation, UDOT was required to obtain a permit from the United States Army Corps of Engineers ("COE") under section 404 of the Clean Water Act. See 83 U.S.C. § 1344 (2008). In order to obtain the required permit, UDOT proposed the creation of the Legacy Nature Preserve, a 2,100-acre area set aside for the purpose of mitigating the environmental impacts of the proposed highway.

18 UDOT brought an action to condemn property owned by G. Kay, Inc. ("G.Kay"), for use in constructing the highway and nature preserve. G. Kay moved to dismiss UDOT's complaint, asserting that UDOT had no authority to condemn its property for the purpose of environmental mitigation. The trial court denied G. Kay's motion and entered an order of immediate occupancy in favor of UDOT. G. Kay filed an interlocutory appeal to this court. This court has jurisdiction pursuant to Utah Code Ann. section 78-2-2(8)().

DISCUSSION

T 4 G. Kay mounts a multi-pronged attack on UDOT's authority to condemn property for creation of the preserve. First, G. Kay contends that creation of a large scale nature preserve is not a purpose authorized by the governing statute, Utah Code Ann. section 72-56-1022. Alternatively, if the governing statute is interpreted to authorize condemnation for creation of the preserve, G. Kay asserts that the statute constitutes an impermissible delegation of legislative authority. G. Kay also argues that the statute does not authorize UDOT to condemn water rights.

15 Before addressing each of G. Kay's arguments, we note the applicable standard of review. We apply a deferential standard of review to the district court's findings of fact, repudiating them only if they are clearly erroneous. Utah R. Civ. P. 52(a). We do not defer to the district court's conclusions of law, but review them for correctness. State v. Pena, 869 P.2d 932, 935 (Utah 1994).

16 The starting point for assessing whether UDOT is authorized to condemn property for creation of a nature preserve is the language of the governing statute. UDOT relies on Utah Code Ann. section 72-5-108(1) for authority to condemn G. Kay's property. That statute permits UDOT to "acquire any real property or interests in real property necessary for temporary, present, or reasonable future state transportation purposes by gift, agreement, exchange, purchase, condemnation, or otherwise." Utah Code Ann. section 72-5-102 defines "state transportation purposes" to include, among other things, "the construction, reconstruction, relocation, improvement, maintenance, and mitigation from the effects of these activities on state highways and other transportation facilities under the control of the department" and "the mitigation of impacts from public transportation projects." Utah Code Ann. § 72-5-102(2), (12) (2001) (emphasis added).

7 The statutory provisions specifically including mitigation of impacts as a "state transportation purpose" were added by amendment effective March 9, 2001. UDOT brought its action to condemn G. Kay's property on June 20, 2001. UDOT argues that the plain language of the amended statute clearly authorizes condemnation of G. Kay's property for use in creating the Legacy Nature Preserve. We agree.

8 G. Kay urges us to consider the legislative history of the 2001 amendment, which suggests, according to G. Kay, that the provisions permitting condemnation for mitigation purposes are not broad enough to include a project such as the preserve. We find, however, that the clear statutory language unambiguously authorizes condemnation for projects dedicated to the mitigation of impacts from highway construction. Thus, we need not consider evidence of the legislature's intent beyond that reflected on the face of the statute. See Day v. Meek, 1999 UT 28, ¶ 6, 976 P.2d 1202; Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1112 (Utah 1991).

19 G. Kay next challenges UDOT's condemnation authority by asserting that UDOT was not pursuing transportation purposes when it condemned property for cere-ation of the preserve. In so arguing, G. Kay relies on evidence that UDOT had planned to create the nature preserve prior to the time that the COE required it as a prerequisite to issuance of the section 404 permit. We find this argument unpersuasive in light of the fact that UDOT did not actually seek to condemn G. Kay's property until after the COE required environmental mitigation in connection with the issuance of the permit and after the legislature had amended the statute to allow condemnation for the purpose of mitigating the environmental impacts of highway construction. Neither the statute as it existed prior to amendment nor UDOT's intent prior to the commencement of the condemnation action is relevant to the question of UDOT's statutory authority at the time of the condemnation.

110 G. Kay next complains of the COE's involvement in UDOT's decision to create and expand the size of the preserve. Specifically, G. Kay contends that the condemnation statute does not authorize UDOT to acquire land for the purpose of satisfying an agreement with federal agencies We disagree. The fact that an agency of the federal government exerted some influence in UDOT's decision regarding the creation and seope of the preserve does not invalidate UDOT's decision. Federal influence in UDOT's decision-making process would call UDOT's action into question only if it showed that UDOT was attempting to do something other than mitigate impacts of a state transportation project when it brought the action to condemn G. Kay's property for the preserve. Here, however, UDOT's interaction with the COE actually demonstrates that the proposed preserve was motivated by UDOT's desire to obtain the permit required to proceed with the project. It therefore supports, rather than undermines, the conclusion that creation of the preserve was motivated by a "transportation purpose."

111 Any role played by federal agencies in selecting the particular land to be taken is likewise irrelevant. We do not review the internal processes of, or external influences on, UDOT in arriving at its decision to condemn particular properties for transportation purposes, except for indications of bad faith.

"It may be said to be a general rule that, unless a corporation exercising the power of eminent domain acts in bad faith or is guilty of oppression, its discretion in the selection of land will not be interfered with. With the degree of necessity or the extent [to] which the property will advance the public purpose, the courts have nothing to do. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance."

Utah Dep't of Transp. v. Fuller, 608 P.2d 814, 817 (Utah 1979) (quoting Postal Tel. Cable Co. of Utah v. Or. Short Line R.R. Co., 28 Utah 474, 484-85, 65 P. 785, 789 (1901)).

112 Because we hold that the statute is broad enough to authorize condemnation of property for a mitigation project such as the preserve, we turn to G. Kay's alternative argument that the statute is an impermissible delegation of legislative power. G. Kay maintains that the statute, as we have just interpreted it, grants UDOT unfettered discretion to determine what types of projects are needed for mitigation and which lands must be condemned for mitigation purposes.

1 13 G. Kay cites Great Salt Lake Authority v. Island Ranching Co., 18 Utah 2d 276, 421 P.2d 504 (1966), for the proposition that the statute impermissibly delegates legislative power. In that case, this court struck down a legislative grant of authority to an agency because there was "uncertainty" regarding the "area over which [the agency] was to exercise its functions" and the "objectives and purposes" to be served by the agency were undefined. Id. at 277, 421 P.2d at 505. Moreover, the court found no "limitation on the power granted," and the "powers, duties and responsibilities" of the agency were not identified. Id. at 278, 421 P.2d at 505.

T 14 In contrast to the situation in Island Ranching, the authority granted to UDOT under Utah Code Ann. sections 72-5-101 to - 115 is limited to specifically defined transportation purposes statewide. To include mitigation of impacts within those transportation purposes, as the legislature did in 2001, is not to unleash UDOT from all reasonable limitations. Rather, "mitigation," as defined in the statute, is a purpose logically linked to the construction, operation, and maintenance of roads and highways. This link is a sufficient "limitation on the power granted." Accordingly, we hold that the legislature did not make an unlawful delegation of authority to UDOT when it included the mitigation of impacts as a defined transportation purpose in section 72-5-102 of the Utah Code.

{15 Finally, we address G. Kay's assertion that UDOT had no authority to acquire water rights by eminent domain. We find this argument to be without basis. The condemnation statute provides that UDOT "may acquire any real property or interests in real property necessary for temporary, present, or reasonable future state transportation purposes." Utah Code Ann. § 72-5-103(1) (2001) (emphasis added). Water rights are a type of interest in real property and thus may be condemned by UDOT for state transportation purposes. See Spears v. Warr, 2002 UT 24, ¶¶ 21-22, 44 P.3d 742 (recognizing that water rights constitute a real property interest).

16 We find no error in the district court's findings of fact, and its conclusions of law were correct. We therefore affirm the district court's denial of G. Kay's motion to dismiss and its issuance of an order of immediate occupancy in favor of UDOT.

I 17 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Judge NEHRING concur in Justice PARRISH's opinion.

118 Justice RUSSON did not participate herein; District Judge RONALD E. NEHRING sat.

      . Subsequent to the entry of the order of immediate occupancy by the trial court, a panel of the United States Court of Appeals for the Tenth Circuit enjoined any further construction activities, holding that the required environmental impact statement was defective on several grounds. Utahns for Better Transp. v. United States Dep't of Transp., 305 F.3d 1152 (10th Cir.2002). While the injunction has resulted in delay and may conceivably result in the modification, or even termination, of the Legacy Parkway Project, we review the propriety of the district court's order of immediate occupancy based on the facts existing at the time of the district court's decision.
      Utah Code Ann. section 72-5-103(1) provides that UDOT "may acquire any real property or interests in real property necessary for temporary, present, or reasonable future state transportation purposes." There is no evidence in the record, and no argument is made on appeal, to contradict the district court's findings that the Legacy Parkway Project was, at the relevant time, proceeding in a timely manner in accordance with a set schedule or timetable and that G. Kay's property was needed by or about the end of the year 2001. Moreover, we are aware of no authority suggesting that a properly issued order of occupancy may be set aside because of a change in circumstances occurring after entry of the order.

      . Indeed, the evidence on which G. Kay relies suggests that UDOT intended to acquire the land for the preserve through negotiation and purchase, rather than by condemnation. Thereafter, UDOT expanded the scope of the proposed preserve, and the legislature amended the statute to include authorization to condemn property for mitigation purposes.


author: BILLINGS, Associate Presiding Judge:

text:
    2003 UT App 316
    RUSSELL/PACKARD DEVELOPMENT, INC., a California corporation; and Lawrence M. Russell, an individual, Plaintiffs and Appellants, v. Joel M. CARSON, an individual; William Bustos, an individual; and John Thomas, an individual, Defendants and Appellees.
    No. 20020546-CA.
    Court of Appeals of Utah.
    Sept. 18, 2003.

      Heather S8. White, Michael R. Carlston, and R. Brent Stephens, Snow Christensen & Martineau, Salt Lake City, for Appellants.
    Keith W. Meade, Cohne Rappaport & Se-gal, and Craig G. Adamson, Dart Adamson, Donovan & Hansen, Salt Lake City, for Ap-pellees.
    Before Judges BILLINGS, BENCH, and THORNE.
   OPINION

BILLINGS, Associate Presiding Judge:

{1 Russell/Packard Development, Inc., and Lawrence Russell (collectively, Russell) appeal from the district court's order granting motions to dismiss in favor of Joel Carson, William Bustos, and John Thomas. We reverse and remand.

BACKGROUND

12 In 1996, Lawrence Russell was the principal shareholder and chief executive officer of Russell/Packard Development, Inc., a California corporation engaged in real estate development in California. When Mr. Russell became interested in developing residential real estate in Utah, he teamed with John Thomas (Thomas), a Utah real estate agent and a managing member of Premier Homes, LC., to organize a Utah limited liability company called PRP Development, L.C. (PRP). Thomas was the manager of PRP and hence a fiduciary of Russell and PRP. PRP began pursuing real estate development activities in Utah.

13 In 1996, Saratoga Springs Development, L.C. (Saratoga), a company owned by Lynn Wardley, was developing and marketing land for residential construction. Sarato-ga owned seventy-two undeveloped twin-home lots (the lots) in the city of Saratoga Springs, Utah. Saratoga retained the brokerage services of Wardley Better Homes and Gardens Brokerage Co. (Wardley) to market and sell the lots. Dan Cary (Cary), a Ward-ley agent, was the listing agent for the lots. Joel Carson (Carson) and William Bustos (Bustos) were also real estate agents with Wardley. Unbeknownst to Russell, Carson had a business relationship with Bustos and Bustos had previously engaged in real estate dealings with Thomas. Also unbeknownst to Russell, Thomas owed Bustos money from previous business dealings. Thomas retained Carson on behalf of PRP and Russell to locate and review real estate proposals for purchase and development by PRP. As such, Carson became a fiduciary of PRP.

T4 In the summer of 1996, Carson, Thomas, and Bustos learned of the availability of the Saratoga lots. At the urging of Carson and Bustos, Thomas approached Cary about purchasing the lots from Saratoga through PRP.

15 However, in the fall of 1996, Carson, Thomas, and Bustos, through an entity known as CMT, Inc. (CMT), made a separate offer to purchase the lots from Saratoga for $25,000 per lot. Carson told Cary that CMT was affiliated with or owned by Russell and PRP. Throughout the negotiations, Carson and Thomas, through their actions and representations to Saratoga, created the appearance that PRP was actively pursuing the purchase of the lots. Consequently, Wardley and Saratoga believed they were negotiating the purchase of the lots with PRP directly. To further disguise CMT's illegitimacy, Carson, Thomas, and Bustos misappropriated Russell's proprietary plans to develop the lots and presented them to Saratoga as their own. As a result of the same conduct, Russell erroneously believed CMT was owned by, affiliated with, or part of Saratoga.

T6 In fact, during the negotiations and execution of the PRP contract, CMT was merely a fictitious name used by Carson, Thomas, and Bustos, having no legal status in Utah or elsewhere. On November 4, 1996, CMT and Saratoga executed a real estate contract listing Cary as the agent for Saratoga and Carson as the agent for CMT. The CMT contract was signed by Saratoga's authorized agent and by "Charles Perez" on behalf of CMT. Saratoga and CMT closed on the CMT contract the same day they executed it, with Saratoga still erroneously believing it was contracting with PRP through PRP's affiliate, CMT. The title company CMT used to close the transaction received an earnest money wire in the amount of $10,000 from an entity known as Poe Investments, L.C. (Poe), whose members were Carson and Bustos. At closing, Bustos received a check for part of this $10,000 earnest money payment.

T7 After the CMT contract closed on November 4, 1996, Thomas-acting for PRP-made an offer to purchase the lots from CMT for $30,000 per lot. PRP and CMT executed a real estate contract (the PRP contract) on November 8, 1996. Thomas signed on behalf of PRP. "Charles Perez" again signed on behalf of CMT. Carson acted as the real estate agent for both PRP and CMT on the PRP contract. The terms of the PRP contract were identical to those of the CMT contract, except that the price per lot was $5,000 higher. By failing to reveal to Russell, PRP, and Saratoga that they were acting as agents and principals for CMT at the same time they were acting as agents and fiduciaries of Russell and PRP, Carson, Thomas, and Bustos successfully effectuated a "flip purchase and sale," and pocketed $360,000 in the process. Neither Russell nor Saratoga knew what had occurred. However, CMT was listed as the seller both in the PRP contract and in the chain of title on the lots.

[ 8 In spring 2000, an accountant for Sara-toga questioned CMT's true role in the 1996 transactions involving the lots. Suspecting a "flip purchase and sale" had occurred, Sar-atoga initiated discussions with Russell wherein Russell learned for the first time that CMT was not an agent for Saratoga. Subsequently, Russell conducted further investigation concerning the ownership and control of CMT and the cireumstances surrounding PRP's purchase of the lots.

T9 On November 30, 2001, Russell filed a complaint against Carson, Thomas, and Bus-tos alleging fraud, breach of fiduciary duty as to Carson and Thomas, civil conspiracy to defraud, commercial bribery, unjust enrichment, conversion and misappropriation of proprietary property, breach of principal-agent relationship as to Carson and Thomas, and intentional interference with prospective economic relations. Carson, Thomas, and Bustos filed motions to dismiss asserting a number of grounds for dismissal. On June 10, 2002, the district court dismissed Russell's claims with prejudice. Russell appeals.

ISSUE AND STANDARD OF REVIEW

Y10 Russell argues the district court erred in dismissing its claims against Carson, Thomas, and Bustos (collectively, the Appellees). "When determining whether a trial court properly granted a rule 12(b)(6) motion to dismiss, we accept the factual allegations in the complaint as true and consider them and all reasonable inferences to be drawn from them in a light most favorable to the plaintiff." Saint Benedict's Dev. Co. v. Saint Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991). "Because the propriety of a 12(b)(6) dismissal is a question of law, we give the trial court's ruling no deference and review it under a correctness standard." Russell v. Standard Corp., 898 P.2d 263, 264 (Utah 1995)' (quotations and citations omitted). We "will affirm the trial court's decision only if it appears [Russell] cannot prove any set of facts in support of [its] claims." Dansie v. Anderson Lumber Co., 878 P.2d 1155, 1156 (Utah Ct.App.1994).

ANALYSIS

I. Timeliness of Claims

A. Statutes of Limitations

111 Under Utah law, Russell's claim for fraud is subject to a three-year statute of limitations. See Utah Code Ann. § 78-12-26(8) (2002). Russell's claims for breach of fiduciary duty, civil conspiracy, unjust enrichment, conversion and misappropriation, breach of principal-agent relation, and intentional interference with prospective economic relations (collectively, the four-year claims) are subject to a four-year statute of limitations. See id. § 78-12-25(8) (2002). Russell concedes that, absent tolling, its fraud claim expired on November 7, 1999, its four-year claims expired on November 7, 2000, and thus its November 80, 2001 complaint was untimely.

B. The Discovery Rule

112 In most cases "a cause of action accrues" and the "statutes of limitations begin running upon the happening of the last event necessary to complete the cause of action." Spears v. Warr, 2002 UT 24, ¶ 33, 44 P.3d 742 (quotations and citations omitted). Moreover, "mere ignorance of the existence of a cause of action does not prevent the running of the statute of limitations." Warren v. Provo City Corp., 838 P.2d 1125, 1129 (Utah 1992) (quotations and citations omitted). Russell concedes that, absent tolling through application of the discovery rule, "the point at which [Russell] reasonably should [have] known" of its legal injuries is November 8, 1996, the day PRP and CMT executed the PRP contract. Spears, 2002 UT 24 at ¶ 32, 44 P.3d 742.

118 However, in some cases, "the discovery rule tolls the limitations period until facts forming the basis for the cause of action are discovered." Id. Utah courts apply the discovery rule

(1) in situations where the discovery rule is mandated by statute; (2) in situations where a plaintiff does not become aware of the cause of action because of the defendant's concealment or misleading conduct; and (8) in situations where the case presents exceptional cireumstances and the application of the general rule would be irrational or unjust, regardless of any showing that the defendant has prevented the discovery of the cause of action.

Id. (quoting Warren, 838 P.2d at 1129). Russell contends the limitation periods were tolled because: (1) the discovery rule applies to a claim for fraud by statutory mandate; and (2) the Appellees' concealment justifies application of the concealment prong of the discovery rule to Russell's four-year claims.

1. Fraudulent Concealment

¶ 14 In Berenda v. Langford, 914 P.2d 45 (Utah 1996), our supreme court noted that in cases not involving allegations of concealment, inquiry notice on the part of the plaintiff is enough to trigger the running of the limitations period. See id. at 51-52 (citing United Park City Mines Co. v. Greater Park City, Co., 870 P.2d 880, 889 (Utah 1998) (refusing to toll the statute of limitations where a proxy statement provided sufficient information to put shareholders on notice of the need for further inquiry)). Hence, absent concealment, the statutes of limitations on Russell's claims began running in 1996 when Russell was put on notice of CMT's involvement by the PRP contract's closing papers and the subsequently recorded deeds. See Johannessen v. Canyon Road Towers Owners Ass'n, 2002 UT App 882, 1283, 57 P.3d 1119 ("Constructive notice is imparted when documents are properly recorded." (quotations and citation omitted)).

115 "However, under our case law the rule is otherwise when a plaintiff alleges that a defendant took affirmative steps to conceal the plaintiff's cause of action...." Berenda, 914 P.2d at 51. In such a situation, the concealment prong of the discovery rule applies to toll the statute of limitations on the plaintiff's claims, regardless of inquiry or constructive notice. See Seale v. Gowans, 923 P.2d 1861, 1865 (Utah 1996). the discovery rule, 'it is the knowledge of injury' which triggers the statute, 'not notice of probable or possible injury.' " Id. (citation omitted). If the plaintiff can make "a prima facie showing of fraudulent concealment and then demonstrate that, given the defendant's actions, a reasonable plaintiff would not have discovered the claim earlier," the statute of limitations is tolled. Berenda, 914 P.2d at 51 (citing Vincent v. Salt Lake County, 583 P.2d 105, 107 (Utah 1978) (holding that the plaintiffs reasonable reliance on the defendant's misrepresentations tolled the statute of limitations until discovery of the cause of the damage) (other citations omitted)).

a. Threshold Issue

1 16 "The first step in determining whether the discovery rule applies is to examine whether [Russell] made the threshold showing that [Russell] did not know, nor should have known," of its causes of action against the Appellees prior to being put on notice of a potential fraudulent transaction by Saratoga in spring 2000. Sevy v. Security Title Co., 902 P.2d 629, 634 (Utah 1995); see also O'Neal v. Division of Family Servs., 821 P.2d 1189, 1144 (Utah 1991) (noting that "a threshold showing that [the plaintiff] did not know and could not reasonably have known of the existence of a cause of action ... seem{s] a definitional prerequisite to reliance on any version of the discovery rule").

117 The Utah Supreme Court has held that a plaintiff's actual knowledge of a cause of action prevents the plaintiff from satisfying the threshold showing. See O'Neal, 821 P.2d at 1144 (citing Brigham Young Univ. v. Paulsen Constr. Co., 744 P.2d 1370, 1374 (Utah 1987); Auerbach Co. v. Key Sec. Police, Inc., 680 P.2d 740, 748-44 (Utah 1984); Becton Dickinson & Co. v. Reese, 668 P.2d 1254, 1257 (Utah 1988); Lord v. Shaw, 665 P.2d 1288, 1290-91 (Utah 1988)). In the case before us, neither party alleges, nor does the record reflect, that Russell had or should have had actual knowledge of its claims against the Appellees at the time of the execution of the PRP contract.

[18 However, there is no dispute that the PRP contract and the deeds for the lots indicate CMT's involvement in the transactions. The Appellees argue that because CMT was named in these documents, Russell should have been aware of its injury and cannot satisfy the threshold showing.

{ 19 The case of Sevy v. Security Title Co., 902 P.2d 629 (Utah 1995), is instructive. In Sevy, the plaintiffs satisfied the threshold showing even where there were "some undisputed facts indicating] that [the plaintiffs] should have become aware of their injury at closing." Id. at 634, 6386 (quotations and citation omitted). In that case, the plaintiff was awarded damages by the district court for a title company's negligent failure to deliver stock certificates to the plaintiff at closing, pursuant to the terms of a real estate purchase contract. See id. at 631. Even though the statute of limitations would normally have run on the plaintiff's claim, the plaintiff asserted the discovery rule applied to toll the statute of limitations. See id. at 634. The plaintiff contended that he met the discovery rule's threshold showing-that he did not and should not have known of the negligence at the time of closing-because the recording of a trust deed led him to believe his security interest was perfected regardless of the defendant title company's failure to deliver the stock certificates. See id. at 636. The defendant title company argued that the plaintiff should have known of the negligence, and that his security interest was not perfected at closing when no stock certificates were forthcoming. See id. at 634. Noting that the district court's finding was a question of fact, see id. at 634, the Sevy court affirmed the district court's ruling, holding that despite evidence tending to show that the plaintiff should have known of his claim upon the defendant title company's failure to deliver the stock certificates, the plaintiff "neither knew nor should have known of [the defendant title company's] negligence until after the statute of limitations period had run." Id. at 636.

120 Similarly in our case, Russell alleges that despite the presence of CMT's name in the closing documents and the recorded deeds, Russell did not and should not have known of its claims at closing, and therefore that the threshold requirement is met for application of the discovery rule. Russell argues it is commonplace to use multiple legal entities in complex development transactions, and therefore the Appellees' use of CMT's name did not, of itself, alert Russell of any potential or actual problems. Because of the standard of review on a rule 12(b)(6) dismissal, we accept Russell's assertions that it should not have known of its claims simply because CMT was listed in the PRP contract and the deeds. Hence, we conclude Russell has satisfied the threshold showing for purposes of surviving a motion to dismiss.

b. The Concealment Prong of the Discovery Rule

121 Our supreme court has held that application of the concealment prong of the discovery rule to toll a statute of limitations requires the plaintiff to "make a prima facie showing of fraudulent concealment and then demonstrate that, given the defendant's actions, a reasonable plaintiff would not have discovered his or her claim earlier." Beren-da v. Langford, 914 P.2d 45, 58 (Utah 1996). This standard requires consideration of "the difficulty a plaintiff may have in recognizing and diligently discovering a cause of action when a defendant affirmatively and fraudulently conceals it." Id. at 54. Significantly, the Berenda court "explicitly acknowledge{[d] that weighing the reasonableness of the plaintiff's conduct in light of the defendant's steps to conceal the cause of action necessitates the type of factual findings which preclude summary judgment in all but the clearest of cases." Id. at 58. "Close calls are for juries, not judges, to make." Id. at 54 (quotations and citations omitted).

{22 To support the contention that the Appellees concealed their wrongful conduct after defrauding Russell via the "flip purchase and sale," Russell alleges in its complaint that:

[] At the time the CMT contract, signed on November 4, 1996, and the PRP contract, signed on November 8, 1996, were executed, Carson, Bustos, and Thomas set on a course of conduct through agreement to conceal from plaintiffs and Saratoga CMT's relationship to the defendants and CMT's lack of relationship to the plaintiffs and Saratoga.
[] This concealment was a necessary part of the scheme and device to permit the CMT contract to be signed by Sarato-ga on November 4, 1996, and to "flip the sale" to PRP on November 8, 1996.
[ ] This intentional concealment and failure to disclose to plaintiffs the fact that CMT was not owned by or controlled through Saratoga or, as to Saratoga, CMT was not owned by or in the control of plaintiffs, plaintiffs and Saratoga would not have permitted the flip purchase and sale through CMT while Carson and Thomas were acting as agents and fiduciaries of plaintiffs or to benefit Bustos.
[] Plaintiffs did not discover that CMT was not the agent for ... Saratoga, in connection with the sale of the lots, until spring of 2000, when an accountant working for Saratoga discovered the possibility of a flip sale and purchase which prompted discussions between Russell on the one hand, and a representative of Saratoga on the other hand.
[] At all times previous to that, defendant formulated a scheme in which plaintiffs were introduced to Saratoga by the defendants and always referred to as the builder or buyer, and Saratoga's representatives were dntroduced to plaintiffs by the defendants and always referred to as the seller or developer.
[] On information and belief, in the spring of 2000, an accountant for Saratoga questioned the ownership or control status of CMT, in connection with the ... closing of the last twelve lots [under the PRP contract].
[] This affirmative conduct and concealment of the defendants constituted a pattern during October and November 1996 during the sale and continued thereafter through spring of 2000 that CMT was known only to plaintiffs as Saratoga's agent or company owned by or under the control of Saratoga. The active concealment continued until spring of 2000 by the defendants.
[] After the conversation with Sarato-ga's representatives concerning CMI's actual status, further inquiry and investigations were made by plaintiffs concerning the ownership and control of CMT and the cireumstances of the two contracts signed in November 1996 by plaintiffs and Sarato-ga.

123 We look to pertinent case law for guidance in determining whether these allegations are sufficient to support fraudulent concealment by the Appellees and reasonable action in the face thereof by Russell.

1 24 In Hill v. Allred, 2001 UT 16, 28 P.3d 1271, the district court granted summary judgment in favor of the defendants on the basis of an expired statute of limitations. See id. at T1. On appeal, the supreme court found that the plaintiff "met her burden of making a prima facie showing of fraudulent concealment" where the plaintiff submitted affidavits from five different people to bolster her allegations that the defendants had taken affirmative steps to conceal her cause of action. Id. at 119. She also alleged two meetings in which the defendants lied to her regarding the whereabouts of her stolen money. See id. Accordingly, the supreme court reversed summary judgment and remanded for the district court to weigh the reasonableness of the plaintiff's conduct in the face of the defendant's fraudulent concealment to determine whether the concealment prong of the discovery rule applied to toll the statute of limitations on the plaintiff's claims. See id. at 19 17-22.

125 At first glance, the concealment in Hill appears more egregious than the concealment pled by Russell in this case. However, on closer examination, Carson and Thomas had fiduciary obligations to Russell with the attendant "duty to speak the truth." Chapman v. Primary Children's Hosp., 784 P.2d 1181, 1186 (Utah 1989). Therefore, material omissions such as Carson's and Thomas's failure to disclose to Russell the true involvement of CMT are similar to the defendant's lies in Hill.

26 Likewise, in Berenda v. Langford, 914 P.2d 45 (Utah 1996), the supreme court reversed a grant of summary judgment after the district court refused to apply the concealment prong of the discovery rule. See id. at 47, 50. In that case, the defendant asked our supreme court to affirm because, in the defendant's view, two letters written by the plaintiff evincing suspicion of the defendant's wrongful conduct were enough to start the statute of limitations running such that the plaintiff's claims were time-barred. See id. at 50. The supreme court reversed and remanded where the plaintiff "presented a primg facie case" of fraudulent concealment because "weighing the reasonableness of the plaintiff's conduct" in the face of fraudulent concealment to determine whether the statute of limitations was tolled is the province of juries rather than judges. Id. at 58-54.

T 27 In Chapman, our supreme court faced a "close call." 784 P.2d at 1186. There, the plaintiffs moved to dismiss without prejudice their own malpractice suit against a physician after the defendants allegedly misled and misinformed the plaintiffs about the viability of their claim. See id. at 1188. After receiving medical records containing the facts underlying their cause of action, the plaintiffs later renewed their malpractice suit, but only after the statute normally would have run. See id. at 1188-84. Balancing the misinformation the plaintiffs allegedly received against the actions of the plaintiffs in light of this misinformation, the Chapman court determined the plaintiffs were "entitled to their day in court" and reversed a grant of summary judgment. Id. at 1186. The court left for the jury the determination of whether, given the defendant's concealment, the plaintiffs "were sufficiently alerted to the possibility of medical malpractice at the time of [their daughter's] cardiac arrest to start the statute of limitations running or whether ... [the plaintiffs] should reasonably have disregarded [the misinformation] and made an independent inquiry." Id. In essence, the court left for the fact-finder the determination of whether or not to apply the discovery rule.

{28 Russell's pleadings, set out above, clearly allege that the Appellees mislead and misinformed Russell as to CMT's true nature and involvement in the sale of the lots. Under our standard of review in a grant of a rule 12(b)(6) dismissal, and in light of the foregoing authority regarding the fact-finder's role in determining the applicability of the discovery rule, we hold the district court erred in granting the Appellees' motions to dismiss.

II. Standing as to Fraud Claim

129 Alternatively, the Appellees argue the district court properly dismissed Russell's fraud claim because Russell lacks standing to bring the claim. Russell alleges in the pleadings that when PRP was dissolved in 1997, PRP assigned to Russell "all of its rights, title and interest in the [PRP] Contract." Russell argues this assignment "in-clud[ed] any claims relating to the purchase of [the] lots." The Appellees argue, inter alia, that Russell lacks standing because it could not have legally acquired a cause of action for fraud from PRP through assignment. Accordingly, we must determine whether a fraud claim is assignable in Utah.

30 We conclude that Mayer v. Rankin, 91 Utah 198, 63 P.2d 611 (1986), is controlling in this appeal. The facts and procedural posture of Mayer are strikingly similar to those we face here. In Mayer, the plaintiff brought a claim against the defendant for fraud alleging that the defendant " 'devised a scheme to defraud the plaintiff's assignors ... by selling them stock ... at false and fictitious values." " Id. at 618. Based on the defendant's misrepresentations, the plaintiff's assignors purchased the stock at a price higher than its actual trading value, providing the defendant with significant ill-gotten profits. See id. at 618-614. The defendant moved to dismiss the plaintiff's action, asserting the plaintiff lacked standing to bring the fraud claim because a cause of action for fraud was not assignable. See id. at 612, 616. The supreme court noted that although tort claims were not assignable at common law, "the rule of nonassignability no longer extends to all actions arising [in tort]" under Utah law. Id. (citing Wines v. Rio Grande W. Ry. Co., 9 Utah 228, 38 P. 1042, 1045 (1893) (holding that an action for negligent destruction of property is assignable); National Union Fire Ins. Co. v. Denver & R.G.R. Co., 44 Utah 26, 137 P. 658, 654 (1913) (same); Lawler v. Jennings, 18 Utah 35, 55 P. 60, 61 (1898) (holding that an action for money overpaid by mutual mistake is assignable); Baglin v. Earl-Eagle Min. Co., 54 Utah 572, 184 P. 190, 198 (1919) (holding that a cause of action for conversion is assignable)). The Mayer court also pointed out that the Utah Supreme Court had previously held an action to recover stock secured by fraud was an assignable claim. Id. at 616 (citing White v. Texas Co., 59 Utah 180, 202 P. 826, 830 (1921)). In light of these prior holdings, the Mayer court could find "no good reason why an action for the recovery of money secured by fraud is not likewise assignable." Id. The Mayer court held that "(while a mere naked right to recover for fraud is not assignable, ... the weight of authority and . sound legal principles [persuade us that] an assignment is upheld when it carries with it a subsisting substantial right to property independent of the right to sue for fraud." Id. at 616-17. The supreme court reversed the district court's dismissal and remanded the case with instructions to reinstate the plaintiff's fraud claim. See id. at 618.

131 We find Mayer indistinguishable from the present appeal. Just as in Mayer, Russell alleges that the Appellees fraudulent misrepresentations induced PRP to execute a real estate purchase contract in which PRP agreed to pay a higher price for the property- than that for which it was presently selling. Like the defendant in Mayer, the Appellees pocketed the ill-gotten profit at the plaintiff's expense. In both cases, the property that the plaintiffs seek to recover through their fraud claims is the money "had [by the plaintiffs] and received [fraudulently by the defendants]." Id. at 616. And like the plaintiff in Mayer, Russell brought its fraud claim in the capacity of an assignee. Thus, applying Mayer, we reverse the dismissal on the fraud claim and allow Russell to pursue its claims against the Appellees.

III. Fiduciary Duty as to Bustos

T382 Russell contends the district court erred in dismissing Russell's claims against Bustos. Bustos argues that he could not have defrauded Russell because he never made any kind of representation to PRP or Russell. Also, Bustos insists he owed PRP and Russell no duty as a fiduciary, and that he therefore had no duty to reveal his knowledge of the fraudulent scheme.

1 33 Generally, "silence ... in the absence of a duty to speak ... does not of itself constitute fraud." 37 C.J.S. Froud § 18 (1997) (footnotes and citations omitted); cf. Jensen v. IHC Hosps., Inc., 944 P.2d 327, 383 (Utah 1997) ("'The party's silence must amount to fraud."). However, "(aln exception to the [general] rule ... exists where the cireumstances impose on a person a duty to speak and he or she deliberately remains silent." 87 C.J.S. Fraud § 19 (footnote and citation omitted); see Jenson, 944 P.2d at 338. Furthermore, "[plarties who knowingly join a fiduciary in fraudulent acts, whereby the fiduciary breaches his or her fiduciary duties, are jointly and severally liable with that fiduciary." 87 Am.Jur.2d Froud and Deceit, § 306 (2001) (citing Future Group, II v. Nationsbank, 824 S.C. 89, 478 S.E.2d 45 (1996) (stating "[the gravamen of the claim [of aiding and abetting a breach of fiduciary duty] is the defendant's knowing participation in the fiduciary's breach.")); see also United Park City Mines Co. v. Greater Park City Co., 870 P.2d 880, 884-885 (Utah 1998) (reviewing a grant of summary judgment involving a cause of action for aiding and abetting a fraud by breach of fiduciary duty).

34 Russell alleges in its complaint that: (1) Bustos schemed with Thomas and Carson to purchase the lots and fraudulently resell them to PRP; (2) Bustos made overt acts and representations to induce Saratoga to sell the lots to CMT in the belief that CMT was affiliated with PRP; (8) Bustos, along with Carson and Thomas, made an offer to purchase the lots from Saratoga through CMT for $25,000 per lot; (4) Bustos converted and used Russell's proprietary development plans to further disguise CMT's illegitimacy; (5) Bustos was a member of Poe, the company that sent a $10,000 earnest money wire to the title company to close the CMT contract; (6) Bustos received money in the form of a check at the closing of the CMT contract; (7) Bustos agreed to conceal from PRP the true nature of the "flip purchase and sell" of the lots; (8) Bustos was a real estate agent for Wardley along with Cary and Carson, both of whom represented PRP; and (9) Bustos interjected himself, along with Carson and Thomas, as undisclosed agents and principals for CMT and Poe, while acting as agents and fiduciaries of PRP.

185 Based on these allegations and reasonable inferences drawn therefrom, we accept that Bustos made overt acts and representations for the purpose of inducing PRP to execute the PRP contract. We also accept that Bustos schemed with the Appel-lees to commit fraud and later agreed to conceal the fraud in furtherance of the scheme. Likewise, we accept that Bustos aided Carson and Thomas in breaching their fiduciary duties toward PRP. Accordingly, we reverse the dismissal of the fraud claim against Bustos and remand for further proceedings.

CONCLUSION

36 For the purposes of surviving a rule 12(b)(6) motion to dismiss, we conclude the concealment prong of the discovery rule applies to toll the statutes of limitations on Russell's claims such that Russell's complaint was timely. Because Utah law allows the assignment of a fraud claim, we conclude Russell has standing to bring its cause of action for fraud. Finally, we hold that Russell's allegations that Bustos committed fraud either by making false representations or by breaching fiduciary duties are sufficient to survive a motion to dismiss. In short, we are not convinced that Russell cannot prove any set of facts to support its claims, and therefore we reverse and remand for further proceedings.

37 I CONCUR: WILLIAM A. THORNE JR., Judge.

1138 I CONCUR IN THE RESULT: RUSSELL W. BENCH, Judge.

      . Russell/Packard Development, Inc., was licensed through the Utah Department of Commerce to do business in Utah as a foreign corporation.

      . CMT, Inc. was incorporated as a California corporation on December 5, 1996, after the CMT contract was signed. CMT has never been registered to do business in the state of Utah.

      . A person named "Charles Perez" is believed to have been associated with CMT, though Russell alleges it is unsure how.

      . Poe was organized in Utah on July 19, 1996, and involuntarily dissolved on August 22, 1997.

      . By this time, Russell and Thomas had dissolved PRP. In the 1997 dissolution, Russell purchased all rights, title, and interest in the PRP contract, including the right to purchase the lots pursuant to the terms of the contract.

      . The Utah Rules of Civil Procedure provide that "[the [district] court shall ... issue a brief written statement of the ground for its decision on all motions granted under ... 12(b)." Utah R. Civ. P. 52(a) (citing Utah R. Civ. P. 12(b)). While rule 52(a) allows for brevity in such supporting statements, we have specifically condemned the practice employed by the district court in this case wherein the court merely grants the motion "for the reasons set forth in the [prevailing party's] supporting memorandum [without] explain{ing] the basis for its decision." Gabriel v. Salt Lake City Corp., 2001 UT App 277, 19, 34 P.3d 234. Given the complexity of the issues in this case, we could reverse and remand based solely on the district court's failure to explain the basis of its decision. However, in the interest of expediting this case, we proceed to the merits. Nonetheless, we urge trial courts to explain the basis of their decisions when there are multiple issues before the court.

      . The Appellees continue to argue that because Russell was put on notice of its claims in spring of 2000-several months before the four-year statutes of limitations expired in summer 2000-Russell was obligated to file its complaint before the running of the statute. The Appellees reason that because Russell did not file its complaint until November 2001, Russell's claims are time-barred. To support this reasoning, the Appellees cite Atwood v. Sturm, Ruger & Co., 823 P.2d 1064 (Utah 1992) and Brigham Young Univ. v. Paulsen Construction Co., 744 P.2d 1370 (Utah 1987). However, both of these cases are factually distinguishable from this case because neither involved allegations of fraudulent concealment.
      In Afwood, the supreme court held that "[wJhile the discovery rule has often been applied to give a plaintiff the opportunity to file his action after learning certain critical facts, the discovery rule has no application here" where the plaintiff "dfid] not suggest any reason why the action could not have been filed between the spring of 1988"-when the plaintiff learned of his cause of action-'"and October 11 of that year"'"-when the statute of limitations expired on his claim. 823 P.2d at 1065. Unlike the plaintiff in Atwood, Russell has alleged fraudulent concealment as the reason Russell could not file its claims prior to summer 2000.
      In Brigham Young, the supreme court refused to apply the discovery rule to toll the statute of limitations because the plaintiff "knew of its cause of action ... three and a half years before the limitations period expired," and where "an action easily could have been filed between the date of discovery and the end of the limitation period." 744 P.2d at 1374. Again, unlike Russell, the plaintiff in Brigham Young did not allege fraudulent concealment as a justification for filing suit after the statute of limitations ostensibly expired.
      Hence, in Atwood and Brigham Young, the supreme court refused to apply the discovery rule because there were no allegations of fraud and because in both cases the plaintiffs could have filed prior to the running of the limitations period. Our reading of Utah law leads us to conclude that this rule does not apply here where Russell alleged fraudulent concealment. As we discuss in detail later in this section, we conclude that Berenda v. Langford, 914 P.2d 45 (Utah 1996), controls this case.

      . Because the certificates were never delivered, the plaintiff's security interest in the shares was not perfected and because of subsequent transfers of the stock certificates, a third party sought to foreclose on the stock and sued to have the district court declare the third party's security interest was valid, perfected, and free from claims by the plaintiff. See Sevy v. Security Title Co., 902 P.2d 629, 631 (Utah 1995).

      . Only in the context of summary judgment have Utah appellate courts addressed the issue of whether a plaintiff successfully made the prima facie showing of fraudulent concealment and then demonstrated that, in light of the defendant's actions, a reasonable plaintiff would not have discovered the cause of action sooner. In such cases, Utah appellate courts examined the pleadings and factual evidence relating to when the plaintiffs would reasonably have been on notice that further inquiry was needed and whether the plaintiff, once on notice, reasonably should have discovered the facts despite the defendants' efforts to hide them. See, eg., Hill v. Allred, 2001 UT 16, 118-20, 28 P.3d 1271; Berenda v. Langford, 914 P.2d 45, 51, 54 (Utah 1996) Warren v. Provo City Corp., 838 P.2d 1125, 1130-31 (Utah 1992); Chapman v. Primary Children's Hosp., 784 P.2d 1181, 1184 (Utah 1989). In this case, however, we are reviewing a grant of a motion to dismiss and hence our standard of review is more deferential to the plaintiff. We "must accept the factual allegations in the complaint as true and consider all reasonable inferences ... from those facts in a light most favorable to the plaintiff," Prows v. State, 822 P.2d 764, 766 (Utah 1991). We think the posture of this case weighs heavily in favor of reversal.

      . Berenda 914 P.2d 45 (Utah 1996) was decided under a statute of limitations that contained an internal discovery rule like the fraud statute in this case. See id. at 51 n. 2. Nevertheless, the court looked to case law decided under statutes of limitations without internal discovery rules because the plaintiff's allegations that the defendants fraudulently concealed the plaintiff's claims required the court in either case to "balance[ ] the reasonableness of the plaintiff in pursuing its claim against the defendant's affirmative actions to conceal." Id. at 52.

      . Because Russell's fraud claim is governed by a statute of limitations that includes an internal discovery rule, our analysis differs slightly from the foregoing concealment prong analysis. The pertinent statutory language provides that "[aln action may be brought within three years ... for relief on the ground of fraud or mistake; except that the cause of action in such case does not accrue until the discovery by the aggrieved party of the facts constituting the fraud or mistake." Utah Code Ann. § 78-12-26(3) (2002) (emphasis added). Interpreting this statute, our supreme court held that "accrual of the cause of action is not complete until discovery of the pertinent facts" constituting the fraud. HiZ, 2001 UT 16 at 116, 28 P.3d 1271 (citing Utah Code Ann. § 78-12-26(3)). Hence, despite the Appellees' arguments to the contrary, "the question is not whether the discovery rule applies [to the fraud claim,] but [rather] when [Russell] discovered [its] cause of action [for fraud] and so triggered the running of the statute." Berenda, 914 P.2d at 56. As we have discussed above, determining when the statute of limitations began running is a fact question and, accordingly, we hold the district court erred in granting the Appellees' motions to dismiss the fraud claim.

      . The Appellees argue Russell's fraud claim does not pass muster under rule 9(b) of the Utah Rules of Civil Procedure, which requires fraud be pleaded with particularity. See Utah R. Civ. P. 9(b). To support this assertion, the Appellees argue, inter alia, that Russell failed to allege that the Appellees made direct misrepresentations to Russell with regard to the transactions involving the lots. However, the question is not one of direct misrepresentations, but rather one of false representations. See Israel Pagan Estate v. Cannon, 746 P.2d 785, 792 (Utah Ct.App.1987) ("A person cannot be liable for fraud unless he made the false representations himself, authorized someone to make them for him, or participated in the misrepresentation in some way, such as through a conspiracy."); Restatement (Second) of Torts § 533 (1965) ("'The maker of a fraudulent misrepresentation is subject to liability for pecuniary loss to another who acts in justifiable reliance upon it if the misrepresentation, a/ though not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct in the transaction ...." (emphasis added)).

      . Russell alleges that Bustos did owe fiduciary duties to PRP. In the posture of this case, we agree. Bustos was a real estate agent with Wardley. Both Cary and Carson were Wardley agents at the time the PRP contract was negotiated and executed. Cary listed the lots and Carson represented PRP in its attempts to purchase the lots. Bustos communicated with both Cary and Carson regarding the lots. Bustos received money from transactions involving the lots. Arguably, Bustos was an agent for PRP because Wardley represented PRP. In fact, Russell alleges in its complaint that Bustos "act[ed] as agent[ ] and fiduciar{y] of [PRP] at the time the PRP contract was negotiated and executed." The determination of "[wlhether or not a confidential or fiduciary relationship exists depends on the facts and circumstances of each individual case." First Sec. Bank of Utah v. Banberry Dev. Corp., 786 P.2d 1326, 1332 (Utah 1990) (quotations and citations omitted).


author: DAVIS, Judge:

text:
    2003 UT App 314
    STATE of Utah, Plaintiff and Appellee, v. Anthony James VALDEZ, Defendant and Appellant.
    No. 20020892-CA.
    Court of Appeals of Utah.
    Sept. 18, 2003.

      Heather Johnson and John D. O'Connell Jr., Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney Generals Office, and Kris C. Leonard, Assistant Attorney General, Salt Lake City, for Appellee.
    Before BILLINGS, Associate P.J., and DAVIS and ORME, JJ.
   OPINION

DAVIS, Judge:

" 1 Anthony James Valdez appeals his conviction and sentence under Utah's forgery statute, Utah Code Ann. § 76-6-501 (1999), a third degree felony. We affirm.

BACKGROUND

T2 On October 29, 2001, Amber Hamlin left her vehicle at Master Muffler & Brake (the shop) in Kearns, Utah, for repairs on her vehicle's exhaust system and to replace the catalytic converter. When she returned to pick up her vehicle, she was accompanied by Appellant, Anthony James Valdez. As she spoke with the mechanic, Valdez entered the shop office. Valdez informed the shop manager that he wished to pay Hamlin's repair bill because he owed her money. Valdez presented a check, which was filled out beforehand, for the repair work. The check belonged to and had the purported signature of James Batley. The manager of the shop also wrote down the driver license number and expiration date from the license produced by Valdez. Police later found that the license belonged to another individual unconnected to this case. Valdez also signed the name James Batley to a form required by the Environmental Protection Agency whenever a catalytic converter is replaced.

T 8 Ten days later, the check was returned to the shop marked "LOST/STOLEN." The assistant manager of the shop called James Batley, who informed him that his checks were stolen, that he had not signed any of the checks before they were stolen, that he had not given anyone permission to sign his name on his checks, and that he did not know either Hamlin or Valdez.

4 Detectives later traced the check and catalytic converter form to Valdez through a fingerprint analysis where detectives found at least twelve points of comparison between a print on the catalytic converter form and Valdeg's left ring finger. The State then charged Valdez with forgery.

T5 After the State rested its case at Valdez's trial, Valdez sought a directed verdict based on an alleged lack of evidence to prove the forgery charge, and, pursuant to Utah's Shondel doctrine, see State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (1969), argued that his case should have been charged as identity fraud under Utah Code Ann. § 76-6-1102 (Supp.2008). The trial court denied Valdez's motions, but gave a lesser-included offense instruction on identity fraud. See id. Valdez was subsequently convicted and sentenced under the forgery statute. See Utah Code Ann. § 76-6-501 (1999). He now appeals the trial court's refusal to amend the forgery charge to an identity fraud charge and, based upon the Shondel doctrine, seeks to be sentenced under the more lenient identity fraud statute.

ISSUE AND STANDARD OF REVIEW

1 6 The sole issue on appeal is whether the trial court erred in determining that Utah Code Ann. § 76-6-501 (1999) and Utah Code Ann. § 76-6-1102 (Supp.2008) do not proscribe the same conduct, thereby rendering the Shondel doctrine inapplicable.

T7 "Because the determination of whether two statutes proscribe the same conduct is a matter of statutory construction, it is a question of law that we review for correctness." State v. Fedorowicz, 2002 UT 67, 49, 52 P.3d 1194, cert. denied, 587 U.S. 1128, 128 S.Ct. 859, 154 L.Ed.2d 805 (2008). "Our review under the Shondel rule focuses on the trial court's legal conclusions, which we review under a correction-of-error standard, according no particular deference to the trial court's ruling." State v. Green, 2000 UT App 83, 15, 995 P.2d 1250 (quotations and citations omitted).

ANALYSIS

T8 Valdez argues that Utah Code Ann. § 76-6-501 (1999) and Utah Code Ann. § 76-6-1102 (Supp.2008) proseribe the same conduct. Based upon this argument, Valdez argues that the Shondel doctrine is applicable and, therefore, the trial court erred by not sentencing him under section 76-6-1102 because it carries a lesser penalty than seetion 76-6-501.

T9 "The Shondel doctrine requires that when two different statutory provisions define the same offense, a defendant must be sentenced under the provision carrying the lesser penalty." State v. Green, 2000 UT App 33, ¶ 6, 995 P.2d 1250. However, "(tlhe doctrine necessarily applies only when the two statutes address 'exactly the same conduct.'" State v. Bluff 2002 UT 66, 133, 52 P.3d 1210 (quoting State v. Gomez, 722 P.2d 747, 749 (Utah 1986)), cert. denied, 537 U.S. 1172, 128 S.Ct. 999, 154 L.Ed.2d 914 (20083). "[Ilf the elements of the crime[s] are not identical and the relevant statutes require proof of some fact or element not required to establish the other, the statutes do not pro-seribe the same conduct and ... [a defendant] may be charged with the crime carrying the more severe sentence...." Green, 2000 UT App 33 at 16, 995 P.2d 1250 (third and fourth alterations in original) (quotations and citations omitted). "Accordingly, to determine if the trial court erred ... we must compare the plain language of [the two statutes in question] to resolve whether they prohibit the same conduct and whether the elements of each crime are wholly duplica-tive." State v. Fedorowicz, 2002 UT 67, ¶ 49, 52 P.3d 1194 (quotations and citations omitted), cert. denied, 587 U.S. 1128, 128 S.Ct. 859, 154 L.Ed.2d 805 (2008).

{10 Valdez was charged, convicted, and sentenced under Utah's forgery statute, seetion 76-6-501. He argues that, according to Utah's Shondel doctrine, he should have been sentenced under section 76-6-1102(8), the more lenient identity fraud statute. Valdez argues that the two statutes contain the same five basic elements: (1) the action elements; (2) the actual information used by a perpetrator; (8) acting without authorization from the person whose information is used; (4) the mental intent; and (5) acting with fraudulent intent.

111 The State argues that the statutes contain three distinct elements. First, the forgery statute requires a perpetrator to use a writing, as defined by the forgery statute, while identity fraud may be accomplished without the use of a writing. Second, forgery may be committed by using a writing that purports "to be the act of another, whether the person is existent or nonexistent," Utah Code Ann. § 76-6-501(1)(b), while identity fraud requires the use of information from a living person. Finally, the two statutes are distinguished because identity fraud requires proof of the value of services wrongfully obtained, see Utah Code Ann. § 76-6-1102(8), whereas forgery does not.

112 Based upon the plain language of these two statutes, we conclude that each statute "require[s] proof of ... element[s] not required [by] the other." Green, 2000 UT App 33 at " 6, 995 P.2d 1250 (quotations and citations omitted). 'To convict a defendant of forgery, the State is required to prove, among other elements, that the defendant used a writing in the commission of the crime. A writing includes:

(2) printing, electronic storage or transmission, or any other method of recording valuable information including forms such as:
(a) checks, tokens, stamps, seals, credit cards, badges, trademarks, money, and any other symbols of value, right, privilege, or identification;
(b </ a security, revenue stamp, or any other instrument or writing issued by a government or any ageney; or
(c) a check, an issue of stocks, bonds, or any other instrument or writing representing an interest in or claim against property, or a pecuniary interest in or claim against any person or enterprise.

Utah Code Ann. § 76-6-501(2)(a)-(c).

€13 The identity fraud statute does not require that any of the elements of a writing, as defined by section 76-6-501, be used to perpetrate an identity fraud. An individual commits identity fraud when that individual

(a) obtains personal identifying information of another person; and
(b) uses, or attempts to use, that information with fraudulent intent, including to obtain, or attempt to obtain, credit, goods, services, any other thing of value, or medical information in the name of another person.

Utah Code Ann. § 76-6-1102(2)(a)-(b).

T 14 While there may be instances where forgery may be utilized to accomplish identity fraud, of. State v. Chukes, 2008 UT App 155,118, 71 P.B3d 624 (@llustrating that, in certain instances, forgery may be a lesser included offense of identity fraud), the Shon-del rule is not implicated. Shondel is not applicable where "the relevant statutes require proof of some fact or element not required to establish the other." Green, 2000 UT App 38 at T6, 995 P.2d 1250 (quotations and citations omitted). The crime of forgery always requires the use of a writing, as defined under the forgery statute; identity fraud may be committed without ever using a writing. Valdez argues that merely using the personal identifying information of another person, as proscribed under the identity fraud statute, is the same conduct as using a writing, as defined under the forgery statute. This argument fails because "personal identifying information" of another could be used without using a "writing." Compare Utah Code Ann. § 76-6-1102(1), with Utah Code Ann. § 76-6-501(2) (the definition of "personal identifying information" under section 76-6-1102(1) does not necessarily encompass a "writing," as defined under section 76-6-501(2)).

T15 The two statutes are further distinguished because Utah's identity fraud statute requires personal identifying information to be taken from "another person," Utah Code Ann. § 76-6-1102(2)(a), while the forgery statute encompasses a "writing" that "purports to be the act of another, whether the person is existent or nonexistent." Utah Code Ann. § 76-6-501(1)(b). Valdez argues that the "another person" requirement of section 76-6-1102 could include nonexistent persons, but this reading of the statute is strained. As Valdez points out, under the Utah Criminal Code, "[plerson" is defined as "an individual, public or private corporation, government, partnership, or unineorporated association." Utah Code Ann. § 76-1-601(8) (1999). However, none of these definitions are inconsistent with the "nonexistent" person provision in section 76-6-501(1)(b). An individual who creates a nonexistent person out of whole cloth that is not "an individual, public or private corporation, government, partnership, or unincorporated association," Utah Code Ann. § 76-1-601(8), in order to commit a forgery, does not commit identity fraud.

[ 16 Finally, the identity fraud statute contains a proof of value element. The provision of section 76-6-1102(8) applicable to this case states "[ildentity fraud is ... a class A misdemeanor if the value of the credit, goods, services, or any other thing of value is less than $1,000[.]" Utah Code Ann. § 76-6-1102(8)(a). The forgery statute contains no such proof of value element, instead classifying all forgeries as "a felony of the third degree." Utah Code Ann. § 76-6-501(8). Contrary to Valdez's assertions, the proof of value element of the identity fraud statute does not apply only to sentencing. The State must still prove beyond a reasonable doubt, at trial, the value of what was attained. Therefore, we conclude that the proof of value element under the identity fraud statute further distinguishes the forgery and identity fraud statutes.

17 Because "the elements of the crime{s] are not identical and the relevant statutes require proof of some fact or element not required to establish the other, the statutes do not proseribe the same conduct." (Green, 2000 UT App 83 at T 6, 995 P.2d 1250 (quotations and citations omitted). Therefore, the Shondel doctrine is inapplicable in this case.

CONCLUSION

18 We conclude that the trial court did not err in determining that the forgery statute, Utah Code Ann. § 76-6-501 (1999), and the identity fraud statute, Utah Code Ann. § 76-6-1102 (Supp.20083), do not proseribe the same conduct. Therefore, we conclude that the trial court did not err in determining that the Shondel doctrine was inapplicable in this case. Accordingly, we affirm Valdez's conviction and sentence under the forgery statute.

T 19 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and GREGORY K. ORME, Judge.

      . Although Valdez argued at trial that identity fraud is a lesser included offense of forgery, Valdez did not waive his Shondel argument before this court because he originally moved the trial court to reduce the forgery charge to an identity fraud charge based upon Utah's Shondel doctrine, and the court gave the identity fraud instruction. See State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (1969).

      . Utah Code Ann. § 76-6-501 (1999) reads in relevant part:
      (1) A person is guilty of forgery if, with purpose to defraud anyone, or with knowledge that he is facilitating a fraud to be perpetrated by anyone, he:
      (a) alters any writing of another without his authority or utters any such altered writing; or
      (b) makes, completes, executes, authenticates, issues, transfers, publishes, or utters any writing so that the writing or the making, completion, execution, authentication, issuance, transference, publication or utterance purports to be the act of another, whether the person is existent or nonexistent, or purports to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed.
      (2) As used in this section, "writing" includes printing, electronic storage or transmission, or any other method of recording valuable information including forms such as:
      (a) checks, tokens, stamps, seals, credit cards, badges, trademarks, money, and any other symbols of value, right, privilege, or identification;
      (b) a security, revenue stamp, or any other instrument or writing issued by a government or any agency; or
      (c) a check, an issue of stocks, bonds, or any other instrument or writing representing an interest in or claim against property, or a pecuniary interest in or claim against any person or enterprise.

      . Utah Code Ann. § 76-6-1102(2), (3)(a) (Supp. 2003) provides:
      (2) A person is guilty of identity fraud when that person knowingly or intentionally:
      (a) obtains personal identifying information of another person; and
      (b) uses, or attempts to use, that information with fraudulent intent, including to obtain, or attempt to obtain, credit, goods, services, any other thing of value, or medical information in the name of another person.

      (3) Identity fraud is:
      (a) a class A misdemeanor if the value of the credit, goods, services, or any other thing of value is less than $1,000(.]