text:
    2002 UT 59
    PROGRESSIVE CASUALTY INS. CO., Plaintiff and Appellee, v. Kevin J. DALGLEISH, Rhett W. Davis, and Danielle Price, Defendants and Appellants.
    No. 20000715.
    Supreme Court of Utah.
    June 25, 2002.

      Theodore E. Kanell, Robert C. Olsen, Salt Lake City, for plaintiff.
    David N. Mortensen, Jeffery C. Peatross, Salt Lake City, for defendants.
   DURRANT, Associate Chief Justice:

T1 This appeal concerns a single-car accident in which the driver and a passenger were injured. Both individuals committed fraud in their initial claim on an automobile insurance policy issued by Progressive Casualty Insurance Company. We consider two issues. First, whether the policy's reference to Utah's "minimum statutory limits" was adequate to reduce Progressive's liability to those limits based on the fraud of the insured driver. Second, whether the passenger's fraud excused Progressive of all obligation to make payments under the policy.

[ 2 The district court held that the incorporation of the "minimum statutory limits" was insufficiently specific and therefore invalid. We conclude that because the policy included a detailed definition of the "minimum statutory limits," those limits were properly incorporated. The district court further held that because the policy allowed Progressive to deny coverage to an "insured person," as defined in the policy, who commits fraud, Progressive was not obligated to pay on the passenger's claim. We conclude that the passenger claimed not as an insured person, but as a third party. His claim was against the driver, not against Progressive. Accordingly, Progressive was not entitled to deny coverage for the accident to its insured, the driver, based on the fraud of the passenger.

BACKGROUND

13 In reviewing a grant of summary judgment, the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. Higgins v. Salt Lake County, 855 P.2d 231, 238 (Utah 1998). We state the facts accordingly.

I. THE ACCIDENT, THE INITIAL CLAIM, AND THE SECOND CLAIM

14 On August 16, 1997, Rhett W. Davis and Danielle Price were involved in a single-car rollover on Upper Corner Canyon Road located in Salt Lake County. The 1997 Land Rover they were driving was covered by an insurance policy issued by Progressive to Davis's step-father, Kevin J. Dalgleish. Davis had Dalgleish's permission to use the vehicle.

T5 Davis and Price initially claimed that Davis was driving the Land Rover at the time of the accident. On this basis, Price sought compensation for her injuries and subsequently settled with Progressive for $11,000. Over a year later, however, Price and Davis admitted that Price was actually driving when the accident occurred, and Price returned the $11,000 to Progressive. Davis then sought compensation from Progressive for the injuries he had sustained in the accident as a result of Price's negligence in driving.

II. PROGRESSIVE'S DECLARATORY JUDGMENT ACTION

16 Progressive filed a complaint on July 30, 1999, seeking a declaratory judgment that the actions of Price and Davis amounted to insurance fraud under Utah law that voided insurance coverage entirely for all claims arising from the accident. Davis responded by moving for summary judgment, arguing that the insurance policy mandated liability coverage to injured third parties, even in the event of fraud by the insured, at least up to the "minimum statutory limits. Davis further argued that the reference to "minimum statutory limits" was improperly incorporated into the policy because the insurance contract did not define "minimum statutory limits." Accordingly, Davis insisted that Progressive was required to pay up to the full liability coverage amount allowed under the policy. Progressive then filed its own summary judgment motion, arguing that either the insurance policy was completely void due to Davis's and Price's fraud, or, in the alternative, that it could deny Davis's claim due to his fraud.

T7 In a memorandum opinion issued on March 3, 2000, the district court concluded that the insurance policy did not properly incorporate the "minimum statutory limits." It therefore precluded Progressive from reducing its liability to those statutory limits. The district court later granted summary judgment in Progressive's favor on July 19, 2000, however. It reasoned that because the misrepresentations by Davis and Price constituted insurance fraud, Davis was precluded from making a claim against Price, and Progressive was excused of any obligation to make payments under the policy to Davis.

III ISSUES RAISED ON APPEAL

T8 Davis appeals the district court's July 19, 2000, decision precluding him from making a claim against Price and excusing Progressive of any obligation to make payments under the policy; Progressive cross-appeals, challenging the district court's March 3, 2000, memorandum decision, which precluded it from limiting its liability to the "minimum statutory limits." We have jurisdiction pursuant to section 78-2-2(@8)(j) of the Utah Code. Utah Code Ann. § (1996).

T9 On appeal, Davis contends that Progressive cannot avoid liability entirely because Utah's statutory no-fault insurance scheme and Utah case law mandate liability coverage. He also argues that the insurance policy mandates liability coverage despite fraud by the insured and that the district court ignored this language in its ruling. Moreover, Davis insists that he must be treated as a third party, not an insured person, because his claim is against Price, not directly against Progressive. Finally, he insists that the policy's step-down provision (ie., the provision that reduces coverage to the "minimum statutory limits" where fraud is committed by the insured) improperly incorporated coverage limits by reference and that the district court acted appropriately in holding the incorporation invalid.

1 10 Progressive counters that the district court found that both Price and Davis knowingly engaged in insurance fraud. Relying on this finding, it asserts that Davis qualifies as an insured person under the policy, and that Utah's statutory no-fault insurance scheme does not require insurance coverage for insured persons who commit fraud. Progressive further relies on a provision in the policy providing that "[wle may void this policy or deny coverage for an accident or loss if you or an insured person have knowingly concealed or misrepresented any material fact or cireumstance, or engaged in fraudulent conduct, in connection with the presentation or settlement of a claim." Alternatively, Progressive argues that the step-down provision was properly incorporated into the insurance policy because the policy sufficiently defines the "minimum statutory limits."

ANALYSIS

I. STANDARD OF REVIEW

T11 In considering an appeal from a district court's grant of summary judgment, we review the lower court's legal conclusions for correctness. Tustian v. Schriever, 2001 UT 84, T 18, 34 P.3d 755. Summary judgment is proper when the evidence "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c).

II. PRICE QUALIFIED AS AN INSURED PERSON UNDER THE TERMS OF THE INSURANCE POLICY

{12 The insurance policy states that an insured person includes "any person with respect to an accident arising out of that person's use of a covered vehicle with the express or implied permission of [the policy holder] or a relative." (Bold-faced type omitted). On appeal, Davis asserts that Price had permission to drive the Land Rover; Progressive does not challenge this assertion. We therefore presume that fact to be true and find that under the plain language of the policy, Price qualified as an insured person.

III PRICE'S FRAUD TOWARD PROGRESSIVE REDUCED HER LIABILITY COVERAGE UNDER THE INSURANCE POLICY TO THE MINIMUM STATUTORY LIMITS

113 As an insured person under the policy, Price indisputably made fraudulent misrepresentations to Progressive. Indeed, the district court found, and the parties in this appeal do not contest, that in submitting her claim to Progressive, Price falsely stated that Davis was driving at the time of the accident. Based on this fraud, Progressive contends that the insurance policy allows it to reduce liability limits to the "minimum statutory limits" and that the district court erred in concluding otherwise. Specifically, it argues that the step-down provision allowing it to reduce lability coverage to the "minimum statutory limits" in the event of fraud by an insured person was properly incorporated into the policy and should be enforced. We agree.

114 Section 31A-21-106(1)(a) of the Utah Code states that

an insurance policy may not contain any agreement or incorporate any provision not fully set forth in the policy or in an application or other document attached to and made a part of the policy at the time of its delivery, unless the policy, application, or agreement accurately reflects the terms of the incorporated agreement, provision, or attached document.

Utah Code Ann. § 31A-21-106(1)(a) (2001). In addition, we have held that a mere reference to statutory limits, without fully setting forth those limits in the contract or an attached document, "violates the plain language and purpose of section 31A-21-106." Cullum v. Farmers Ins. Exch., 857 P.2d 922, 925 (Utah 1993). Relying on this legal authority, the district court held that Progressive improperly incorporated coverage limits by reference. In so doing, however, the district court apparently overlooked a section in the insurance policy, a copy of which was submitted to the court in Progressive's summary judgment motion, that explicitly defines "minimum statutory limits." Indeed, the plain language of that policy defines the phrase "minimum statutory limits" in elaborate detail:

[The minimum policy limits for motor vehicle liability coverage required by the law of the State of Utah ... are as follows:
a. $25,000 because of liability for bodily injury to one ... person arising out of the use of a motor vehicle in any one ... accident.
b. subject to the limit for one ... person in "a" above, $50,000 because of lability for bodily injury to two ... or more persons arising out of the use of a motor vehicle in any one ... accident; and
c. $15,000 because of liability for property damage arising out of the use of a motor vehicle in any one ... accident; or
d. $65,000 because of ability for bodily injury or property damage arising out of the use of a motor vehicle in any one ... accident.

We thus conclude that the policy's step-down provision was properly incorporated into the insurance policy at issue and that Progressive's potential liability is therefore reduced to the "minimum statutory limits."

IV. DAVIS IS A THIRD-PARTY CLAIMANT

115 Progressive next asserts that Davis also qualifies as an insured person under the terms of the insurance policy because he made "use of" the Land Rover. It argues that it may therefore void insurance coverage entirely because he made the same fraudulent misrepresentations as Price. In other words, Progressive argues that as a user of the insured vehicle, Davis was entitled to coverage for any liability arising out of his use of that vehicle and that the insurance policy allows it to void coverage when fraud is committed by an insured person. To support this argument, it relies on the following provisions in the policy:

We may void coverage under this policy if you or an insured person have knowingly concealed or misrepresented any material fact or cireumstance, or engaged in fraudulent conduct, at the time application was made or at any time during the policy period.
We may void this policy or deny coverage for any accident or loss if you or an insured person have knowingly concealed or misrepresented any material fact or circumstance, or engaged in fraudulent conduct, in connection with presentation or settlement of a claim.

T16 Davis claims that while he is an insured person for purposes of a liability claim brought against him, he is not an insured person for purposes of his claim against the driver (Price). Rather, he contends that he is merely a third-party claimant. To buttress this position, he relies on Pixton v. State Farm Mutual Automobile Insurance Co., 809 P.2d 746 (Utah Ct.App.1991). In Pixton, although the contending parties were both separately insured by State Farm, the plaintiff sued State Farm as a third party to recover under the other individual's insurance policy. Id. at 747. The court of appeals held that the plaintiff's own contractual relationship with State Farm was unrelated to his third-party claim against the insurance company. Id. at 749. Davis argues his circumstance is analogous to that of the plaintiff in Pixton. We agree.

117 Certainly, a passenger like Davis may qualify as an insured person under the language in the insurance policy defining an insured person as one making "use of" a covered vehicle with permission. Any liability coverage to which Davis may be entitled, however, is unrelated to Price's coverage under that same policy. Similar to the plaintiff in Pixton, Davis's contractual relationship with Progressive is distinct from that of Price. Further, Davis is not making a direct claim on Progressive. Rather, he is claiming against Price, who may then turn to Progressive for indemnification. Consequently, from Progressive's standpoint, Davis's claim is one of a third-party claimant.

v. THE EFFECT OF DAVISS FRAUD

[ 18 Under the plain language of the insurance policy, the insured's liability coverage for injuries sustained by third parties is expressly preserved up to the "minimum statutory limits" even where Progressive opts to void the policy due to fraud by an insured person. Specifically, the insurance policy declares that avoidance of coverage due to an insured person's fraud "shall not affect coverage under Part 1 Liability to Others up to the minimum statutory limits if the accident occurs before we notify the named insured that the policy is void." (Bold-faced type omitted.) Thus, on its face, the policy appears to require some liability coverage for Price, notwithstanding her fraud, because the underlying accident occurred before Progressive attempted to void the policy.

119 In the instant action, however, both the insured person (Price) and the third-party claimant (Davis) made fraudulent misrepresentations to Progressive. Having concluded that Price's right to indemnification was reduced by her own fraud, we must therefore determine whether her right to coverage under the insurance policy is further reduced by Davis's fraud as a third-party claimant. We conclude that it is not for three reasons.

First, Davis's fraudulent statements to Progressive are unrelated to his claim against Price and do not entitle Progressive to void Price's coverage. As we explained in Beck v. Farmers Insurance Exchange, a third-party action is a dispute between the insured and the person alleging injury, and the insurance company's role is limited to defense and indemnification of the insured. 701 P.2d 795, 798 n. 2 (Utah 1985) (noting that a third-party action is "one where the insurer contracts to defend the insured against claims made by third parties against the insured and to pay any resulting liability, up to the specified dollar limit"). Any fraudulent act committed by an injured third party against an insurance company therefore has no relevance to the third-party's action against the insured.

Second, although it is repugnant for an individual to benefit from his or her fraudulent activity, see, eg., Wall v. Salt Lake City, 50 Utah 598, 607, 168 P. 766 (1917) (declaring that a "municipal corporation can no more profit by fraud ... than an individual"), there is no indication here that Davis is benefitting from his fraud. To the contrary, the funds originally obtained by Price from Progressive were returned, and Davis is now merely seeking the recovery for his injuries to which he is legitimately entitled.

122 Finally, the policy itself does not distinguish between an innocent third party and a third party who has committed fraud. It merely provides Progressive with the option of reducing the coverage available to the "minimum statutory limits" if an insured person commits fraud.

1 23 Despite our conclusion that Davis may recover against Price and that Price is indemnified up to the "minimum statutory limits" by Progressive, we note that Davis and Price are not in the same position that they would have been absent their fraud. Both individuals have exposed themselves to potential criminal charges. In addition, the coverage provided by Progressive to Price has been reduced to the "minimum statutory limits" from the coverage that would have been available absent the fraud, thereby reducing Price's capacity to pay any damages awarded to Davis.

CONCLUSION

1 24 Because the insurance policy included a specific definition of the "minimum statutory limits," we conclude that Progressive properly incorporated those limits into the policy and that it is entitled to reduce coverage to the minimum statutory amount due to Price's fraudulent misrepresentations. Moreover, because Davis's fraud against Progressive is irrelevant to his third-party claim against Price, we conclude that Progressive may be obligated to indemnify Price for Davis's injuries resulting from the accident up to the "minimum statutory limits." We therefore reverse both the district court's memorandum order and its summary judgment decision, and remand for further proceedings consistent with this opinion.

11 25 Chief Justice DURHAM, Justice HOWE, Justice RUSSON, and Justice WILKINS concur in Associate Chief Justice DURRANT's opinion.

      . Both parties acknowledged this fact at oral argument before this Court. We therefore presume it to be true.

      . The policy's stated liability limit is $50,000, whereas the "minimum statutory limit" is $25,000.

      . In reaching its decision, the district court cited the following provisions of the insurance policy:
      This policy was issued in reliance upon the information provided on your insurance application. We may void coverage under this policy if you or an insured person have knowingly concealed or misrepresented any material fact or circumstance, or engaged in fraudulent conduct, at the time application was made or at any time during the policy period.
      We may void this policy or deny coverage for any accident or loss if you or an insured person have knowingly concealed or misrepresented any material fact or circumstance, or engaged in fraudulent conduct, in connection with the presentation or settlement of a claim.
      We may void this policy for fraud or misrepresentation even after the occurrence of an accident or loss. This means that we will not be liable for any claims or damages which would otherwise be covered. However, if we void this policy, this shall not affect coverage under Part 1 Liability to Others up to the minimum statutory limits if the accident occurs before we notify the named insured that the policy is void. If we void this policy, you must reimburse us if we make a payment. (Bold-faced type omitted).

      . The step-down provision declares as follows:
      We may void this policy for fraud or misrepresentation even after the occurrence of an accident or loss. This means that we will not be lfable for any claims or damages which would otherwise be covered. However, if we void this policy, this shall not affect coverage under Part 1 Liability to Others up to the minimum statutory limits if the accident occurs before we notify the named insured that the policy is void. If we void this policy, you must reimburse us if we make a payment.
      (Bold-faced type omitted).

      . We note that there is no indication in the record that the parties brought this particular provision to the district court's attention. However, the issue regarding incorporation was raised below, and the insurance policy was submitted to the district court. It is therefore appropriate on appeal to examine the entire insurance policy in determining whether the "minimum statutory limits" were properly incorporated.


source: Caselaw Access Project

author: RUSSON, Justice:

license: Public Domain

text:
    2002 UT 57
    GRAND COUNTY, Plaintiff, Appellee, and Cross-Appellant, v. EMERY COUNTY and the City of Green River, Defendants, Appellants, and Cross-Appellees.
    No. 20010044.
    Supreme Court of Utah.
    June 25, 2002.

      W. Scott Barrett, Logan, for Grand County.
    David A. Blackwell, Castle Dale, for Emery County, Gerald H. Kinghorn, David J. Burns, Salt Lake City, for Green River.
   RUSSON, Justice:

11 Emery County and the City of Green River ("Green River") appeal the trial court's declaratory judgment in favor of Grand County declaring that section 17-2-6(2) of the Utah Code is unconstitutional under article XI, section 3 of the Utah Constitution, and appeal the trial court's failure to certify the election results approving Emery County's annexation of that portion of Green River located within Grand County ("Green River portion of Grand County") pursuant to their petition for election review. Grand County cross-appeals the trial court's grant of Emery County and Green River's petition for election review and the trial court's attendant interpretation of section 17-2-8 of the Utah Code.

BACKGROUND

2 This appeal arises out of a long-standing controversy between neighboring Grand County and Emery County and Green River, which straddles those counties' common border. The Green River portion of Grand County, with the consent and encouragement of Emery County, petitioned the relevant county legislative bodies to be annexed by Emery County, the desired result being that all of Green River would be located in Emery County instead of spread across two counties. These same parties were before this court in 1998 in connection with the same underlying controversy. In that case, Grand County v. Emery County, 969 P.2d 421 (Utah 1998), Grand County successfully challenged a previous version of section 17-2-6, the statute at issue in this appeal, in an attempt to thwart Emery County's annexation of the Green River portion of Grand County. While the underlying controversy between the counties remains the same, the statutory framework within which the battle rages has been changed by the Utah Legislature through the subsequent enactment of House Bill 49 (H.B.49"), H.B. 49, 53d Leg., Gen. Sess., 2000 Utah Laws 115, during the 2000 general session. The constitutionality of the amended statutory scheme is the central subject of this appeal.

PROCEDURAL HISTORY

T3 On August 3, 2000, Grand County filed an action seeking declaratory and injunctive relief against Emery County and Green Riyer related to Emery County's attempt to annex the Green River portion of Grand County. On September 1, 2000, Grand County moved for a preliminary injunction in an effort to prevent Emery County and Green River's annexation proposal from being submitted to the voters of Emery County and the voters of the Green River portion of Grand County. The trial court denied Grand County's motion for injunctive relief but directed any party wishing to challenge the results of the election to petition for election review at the appropriate time after the election. The annexation proposal was submitted to the relevant voters in the 2000 general election.

T4 After the election, Grand County refused to certify the election with regard to the annexation proposal. Emery County and Green River petitioned for election review on December 1, 2000, to compel certification of the voters' approval of the annexation proposal. The trial court consolidated Grand County's original action for declaratory judgment with the petition for election review.

{5 On December 14, 2000, the trial court granted Emery County and Green River's petition for election review and determined that the relevant annexation statute, sections 17-26 and -8 of the Utah Code, requires approval of an annexation proposal by a majority of the voters in the area of the city or town to be annexed and the annexing county, and that in the 2000 general election, a majority of the voters in Emery County and the Green River portion of Grand County had approved the proposal. Despite this determination, the trial court refused to certify the election results because it simultaneously held section 17-2-6(2) of the Utah Code, the statute pursuant to which the election was held, unconstitutional, and consequently, granted Grand County its requested declaratory relief. The trial court ruled that section 17-2-6(2) of the Utah Code was unconstitutional because it violated the "general law" provision of article XI, section 8 of the Utah Constitution. The parties timely appealed.

STANDARD OF REVIEW

16 The issue of "[wlhether a statute is constitutional is a question of law, which we review for correctness, giving no deference to the trial court." State v. Daniels, 2002 UT 2, ¶ 30, 40 P.3d 611; see also State v. Kell, 2002 UT 19, ¶ 50, - P.3d -; Grand County v. Emery County, 969 P.2d 421, 422 (Utah 1998). Furthermore, to the extent we are making a determination of a statute's constitutionality, the " 'statute is presumed constitutional, and we resolve any reasonable doubts in favor of constitutionality'" Utah Sch. Bds. Ass'n v. State Bd. of Educ., 2001 UT 2, ¶ 9, 17 P.3d 1125 (quotation and citation omitted); see also Daniels, 2002 UT 2 at ¶ 30, 40 P.3d 611. Additionally, because interpreting the Utah Constitution presents a question of law, we review the trial court's determination for correctness and give no deference to its legal conclusions. State v. Casey, 2002 UT 29, ¶ 19, 44 P.3d 756; Cache County v. Prop. Div. of State Tax Comm'n, 922 P.2d 758, 766 (Utah 1996).

ANALYSIS

I. CONSTITUTIONALITY OF THE ANNEXATION STATUTE

T7 On appeal, Emery County and Green. River first argue that the trial court erred in granting Grand County declaratory judgment that section 17-2-6(2) is unconstitutional. In ruling that section 17-2-6(2) is unconstitutional, the trial court concluded that section 17-2-6(2)'s requirement-that a county wishing to annex a portion of the territory from an adjoining county must first acquire a concurrent resolution passed by a two-thirds majority of both houses of the legislature approving the annexation proposal and then the governor's signature approval on such a resolution-violated the "general law" provision of article XI, section 8 of the Utah Constitution, which establishes the general procedure and voting requirement regarding county annexations and the legislature's power to delineate the conditions of the annexation process. See Utah Const. art. XI, § 8.

T8 Emery County and Green River maintain that section 17-2-6(2), H.B. 49, which amended section 17-2-6, and House Coneur-rent Resolution 6, H. Con. Res. 6, 58d Leg., Gien. Sess., 2000 Utah Laws 1660-61-the resolution passed by the legislature approving the annexation proposal-either are not "special laws," or in the case of the concurrent resolution, is not a "law" at all, and therefore, they do not violate article XI, seetion 8.

T9 Article XI, section 3 of the Utah Constitution provides:

No territory shall be stricken from any county unless a majority of the voters living in such territory, as well as of the county to which it is to be annexed, shall vote therefor, and then only under such conditions as may be prescribed by general law.

Utah Const. art. XI, § 8.

T10 This provision sets forth the basic requirements and framework for annexation and delegates to the legislature the authority to dictate the conditions under which annexation may occur. However, the legislature's power to set those conditions is limited by the provision in that the legislature may pre-seribe such conditions only "by general law." Id.

111 Pursuant to this constitutional provision, the legislature enacted title 17, chapter 2 of the Utah Code. Specifically, section 17-2-6 prescribes the conditions under which one county can annex a portion of the territory of an adjoining county. This section of the statute sets forth two different annexation methods.

[ 12 The first annexation method (the "traditional method") allows for a majority of the voters in an area of a county to petition their county legislative body to allow the area in which they live to be annexed by an adjoining county. Utah Code Ann. § 17-2-6(1)(a). The county legislative body, upon receiving such a petition in accordance with the provisions of the statute, must submit the annexation proposal to the voters of the county from which territory is to be annexed and to the voters of the county to which the territory is to be annexed. Id. § 17-2-6(1)(b). Under this annexation method, an annexation proposal is approved if "a majority of those voting in each county have voted in favor of [the] annexation." Id. § 17-2-8(2)(a) (Supp. 2001).

113 The second or alternative annexation method (the "amended alternative method"), which is at issue in this case, was amended by the passage of H.B. 49 during the 2000 general session of the legislature. The amended alternative method provides for a similar petition process but goes further and sets forth a modified and supplemental procedure applicable where the area seeking to be annexed shares a common boundary with the annexing county and where the area proposed to be annexed (1) "is located within a city or town whose boundaries extend into the proposed annexing county," (2) "is contiguous to the portion of the city or town that is located within the proposed annexing county," and (8) "includes all of the city or town that is within the county from which the area is proposed to be taken." Utah Code Ann. § 17-2-6(2)(a))(A)-(C). Under these circumstances, one county can annex a portion of an. adjoining county if "by a two-thirds vote of each house, the Legislature passes a concurrent resolution" approving the annexation proposal, id. § 17-2-6(2)(a)(ii), the governor signs the concurrent resolution, id. § 17-2-6(2)(a)(iii), and an economic analysis of the annexation proposal is conducted and the analysis demonstrates that the cost and revenue effects of the annexation proposal fall within the specific parameters described in the statute, id. $ 17-2-6(2)(b). In an election on an annexation proposal brought under the amended alternative method, an annexation proposal is approved if "a majority of voters living in the area proposed for annexation" and "a majority of voters living in the county to which the area is proposed to be annexed have voted in favor of annexation." Id. § 17-2-8(2)(b).

¶ 14 In order to determine if section 17-2-6, as amended by H.B. 49, is constitutional under article XI, section 8, we must determine if it is a general law. The standards for evaluating challenged legislation under the "general law" provisions of the Utah Constitution are set forth in Utah Farm Bureau Insurance Co. v. Utah Insurance Guaranty Ass'n:

A general law applies to and operates uniformly upon all members of any class of persons, places, or things requiring legislation particular to themselves in the matters covered by the laws in question. On the other hand, special legislation relates either to particular persons, places, or things or to persons, places, or things which, though not particularized, are separated by any method of selection from the whole class to which the law might, but for such legislation, be applied.... The constitutional prohibition of special legislation does not preclude legislative classification, but only requires the classification to be reasonable.

564 P.2d 751, 754 (Utah 1977); see also 73 Am.Jur.2d Statutes § 5 (1974). Furthermore, where the legislature has made such a legislative classification, the classification

is never unreasonable or arbitrary in its inclusion or exclusion features so long as there is some basis for the differentiation between classes or subject matters included as compared to those excluded from its operation, provided the differentiation bears a reasonable relation to the purposes to be accomplished by the act. ...
. If a reasonable basis to differentiate those included from those excluded from its operation can be found, it must be held constitutional.

Utah Farm Bureau Ins. Co., 564 P.2d at 755-56 (quotations omitted). In other words, a law is a general law where, to the extent it makes a classification, that classification (1) is reasonable and (2) applies and operates uniformly as to all members composing the class.

T 15 Section 17-2-6, as amended by H.B. 49, is a general law. It is clear that the amended alternative method provided for in section 17-2-6(2) creates a legislative classification and differentiates between portions of counties generally and those portions that are cities or towns that straddle county boundaries. Neither of the parties disputes the reasonableness of this classification.

116 While the plain language of H.B. 49 does not provide an express indication of the legislature's basis for differentiating between portions of counties generally that seek annexation and those areas of counties that are portions of cities or towns that straddle county lines that seek annexation, and there does not appear to be any legislative history associated with H.B. 49 to guide us, it is not difficult to discern from the language of the bill and the statute that the legislature was concerned about keeping cities and towns wholly within a single county instead of two counties. The cities and towns belonging to the class occupy the unique position of straddling a county boundary and falling within two counties. The purpose of the legislation is to: provide an additional, and in some respects easier, method of annexation for the cities and towns caught in the awkward position of straddling a county line. The legislature did not arbitrarily include or exelude members from the class to which the statute is applicable, but instead, included only members to which the purpose of the statute might apply. Therefore, the legislature's basis for differentiating between the members of the class subject to section 17-2-6(2) and other portions of counties in general "bears a reasonable relation to the purposes to be accomplished by the act" and is otherwise reasonable. Utah Farm Bureau Ins. Co., 564 P.2d at 756.

117 As to the "uniform operation" requirement for general laws, Grand County essentially argues that section 17-2-6(2) was enacted specifically to address the Green River situation and that the statute will not operate uniformly as to the other members of the class because the statute includes no legal standards related to the passage of a concurrent resolution by the legislature or approval of such a resolution by the governor. Grand County argues that under the statutory scheme as it now stands, there is no guarantee that any of the other class members will be able to successfully lobby the legislature and the governor for passage and approval of a concurrent resolution similar to the one secured by Emery County and Green River in this case. Grand County's arguments are unavailing.

1 18 Section 17-2-6(2) applies uniformly to the members of the class. As previously indicated, there are four cities/towns that are presently members of the class. One of those class members, Green River, has sue-cessfully employed the procedure provided for in the statute. Any of the other class members may utilize the section 17-2-6(2) procedures in the same manner as Green River did. Under the uniform operation of the statute, those class members would be required to lobby the legislature for a concurrent resolution, to secure the governor's signature of such a resolution, to conduct the required economic analysis, and ultimately to gain the approval of a majority of the voters living in the appropriate areas. The procedure for the class members is identical. Green River was afforded no special treatment in the application of the law, and there is no indication that any other class member would be treated any differently or required to meet any disparate burdens. The mere fact that Emery County and Green River were successful in utilizing the amended alternative method does not render the statute a special law.

119 Grand County further argues that even if the underlying annexation statute is a general law, the .concurrent resolution passed by the legislature and signed by the governor is a special law, or has the effect of a special law, since such a resolution is required by the underlying statute and no vote on annexation can go forward without the resolution. The trial court appeared to endorse essentially the same argument when it concluded in its memorandum decision that the "concurrent resolution approved by the Governor is functionally indistinguishable from legislation." We disagree.

¶ 20 The concurrent resolution is not a "law" and therefore is not subject to the "general law" limiting language of article XI, section 3 because a resolution of the Utah Legislature is not legislation and does not have the force or effect of law. Salt Lake City v. State Tax Comm'n, 813 P.2d 1174, 1177 (Utah 1991); 73 Am.Jur.2d Statutes § 3 (1974) ("[The general rule is that a joint or concurrent resolution adopted by the legislature is not a statute, [and] does not have the force or effect of law ... .").

¶ 21 Nor does the requirement of a concurrent resolution passed by the legislature and signed by the governor transform the underlying general law into a special one. The concurrent resolution required as part of the amended alternative method has no effect of law. It neither grants nor denies annexation to a city or town or county. It merely represents a condition precedent to an annexation proposal brought under the amend'ed alternative method being presented to the relevant voters in the county or area to be annexed. Article XI, section 8 of the Utah Constitution clearly indicates that such conditions may be set by the legislature.

122 Finally, in its memorandum decision the trial court characterized the requirement of a concurrent resolution as giving the "last word on any county boundary change" to the legislature and the governor instead of to the voters. This is incorrect.

123 We read the plain language of the statute "as a whole," interpreting its provisions "in harmony with other provisions in the same statute and 'with other statutes under the same and related chapters.'" Lyon v. Burton, 2000 UT 19, ¶ 17, 5 P.3d 616 (quoting Roberts v. Erickson, 851 P.2d 643, 644 (Utah 1993) (per curiam)). The trial court's analysis and conclusion ignore the presence of the traditional method in section 17-2-6(1). The concurrent resolution requirement does not give the legislature and the governor the "last word" on county boundary changes because a city or town that is unsuccessful in utilizing the procedures of the amended alternative method in section 17-2-6(2) by not acquiring a concurrent resolution from the legislature, or for that matter, an economic analysis that meets the requirements of the amended alternative method, would always have recourse to the traditional method found in section 17-2-6(1), which is free from all of the additional requirements of the amended alternative method.

1 24 Therefore, the trial court erred when it concluded as a matter of law that section 17-2-6, as amended by H.B. 49, was an unconstitutional "special law" because the legislative classification made by the statute has a reasonable basis that is reasonably related to the purposes of the statute and because the statute applies and operates uniformly as to the members of the class.

IL. INTERPRETATION OF "VOTERS"

125 On cross-appeal, Grand County challenges the trial court's conclusion that section 17-2-8 of the Utah Code requires that an annexation proposal brought pursuant to seetion 17-2-6(2) receive a majority of the votes of those who actually voted on the annexation proposal in the area to be annexed and in the annexing county in order to be approved. Emery County and Green River appeal the trial court's refusal to certify the result of the election in accordance with the trial court's interpretation of the statute and its determination that the annexation proposal received the required electoral approval.

¶ 26 Grand County argues that the statute should be interpreted to require that an annexation proposal brought under section 17-2-6(2) receive a majority of the votes of "registered" voters in the area to be annexed and in the annexing county in order to be approved. Grand County supports its position by noting that the legislature amended the language of section 17-2-8(2)(b) that sets forth the standard for approval of an annexation proposal brought pursuant to section 17-2-6(2). Prior to the legislature's amendment of section 17-2-8(2)(b) through the enactment of H.B. 49, the standard of approval for an annexation proposal brought pursuant to either subsection 17-2-6(1) or subsection 17-2-6(2) was the same "majority of those voting" standard. The amendment altered the language setting forth the approval standard for section 17-2-6(2) annexation proposals from a majority of "those voting" in the area proposed for annexation and in the county to which the area is to be annexed, Utah Code Ann. § 17-2-8(2)(b) (1999), to a majority of "voters living" in those two areas, Utah Code Ann. § 17-2-8(2)(b) (Supp.2001). Grand County argues that the legislature amended the language of the statute to require approval of a majority of "voters living" in the relevant areas in order to impose a higher standard than the majority of "those voting" requirement. In Grand County's view, the new language inserted by the legislature requires a majority of "registered" voters in the relevant areas even if those registered voters failed or chose not to vote on the annexation proposal in question. Under Grand County's statutory interpretation of section 17-2-8, the amended language of section 17-2-8(2)(b) cannot be interpreted to set the same standard of approval for an annexation proposal as the "majority of those voting" language in section 17-2-8(@)(a) which was left unaffected by HB. 49's amendment. If the two phrases are interpreted as meaning the same thing, section 17-2-8(2)(a) becomes redundant with section 17-2-8(2)(b) and the change in the language was unnecessary. In other words, according to Grand County, the legislature's decision to change the language was purposeful and the change would not have been made unless some different meaning and standard was in fact intended.

¶ 27 The voting requirement associated with county annexation is constitutionally mandated and defined. See Utah Const. art. XI, § 8. The legislature has the authority to set the conditions of annexation by general law, but it does not have the authority to establish or modify the voting requirement set forth in the plain language of article XI, section 3. Because the voting requirement is constitutionally intended and described, and because the language of the statute and the constitution are identical, we interpret the constitutional language and impute that meaning to the same language used by the legislature in the statute. See Odd Fellows' Bldg. Ass'n v. Naylor, 53 Utah 111, 114, 177 P. 214, 215 (1918); see also People ex rel. Baird v. Tilton, 37 Cal. 614, 622 (1869) ("The same construction should be given to the same language used in the same connection, in reference to a similar subject matter, when used in a statute, as when used in the Constitution."); People ex rel. Akin v. The Butler St. Foundry & Iron Co., 201 Ill. 236, 66 N.E. 349, 355 (1903) ("[WJhen [a] statute is couched in the same language as the Constitution, the language of the statute will receive the same construction as that of the Constitution ... ."). In the case at hand, the legislature's use of the exact language of the constitution suggests that it intended the language of section 17-2-8(2)(b) and section 17-2-6(2)(a)(iv)(A)(B) to have the same meaning and effect as the language of the constitution. See State v. Woodcock, 168 Vt. 588, 719 A.2d 32, 32 (1998). As a result, we need not address Grand County's arguments based on the interpretation of the statute or the legislature's intent in amending the language of the statute but rather focus our analysis on the meaning and interpretation of the constitutional provision.

128 As previously recited, article XI, seetion 3 prohibits the territory of one county from being annexed by another county "unless a majority of the voters living in such territory, as well as of the county to which it is to be annexed, shall vote therefor." Utah Const. art. XI, § 3.

129 "In interpreting the state constitution, we look primarily to the language of the constitution itself ...." State v. Gardner, 947 P.2d 630, 633 (Utah 1997). Therefore, our starting point in interpreting a constitutional provision is the textual language itself. See State v. Casey, 2002 UT 29, ¶ 20, 44 P.3d 756; Utah Sch. Bds. Ass'n v. State Bd. of Educ., 2001 UT 2, ¶ 13, 17 P.3d 1125; In re Inquiry Concerning a Judge (Young), 1999 UT 6, ¶ 62, 976 P.2d 581 (Stewart, J., dissenting). "We need not inquire beyond the plain meaning of the [constitutional provision] unless we find it ambiguous." Casey, 2002 UT 29 at ¶ 20, 44 P.3d 756.

¶ 30 The language at issue here is clear and unambiguous. "Voter" is defined as a "person who engages in the act of voting." Black's Low Dictionary 1571 (7th ed.1999). Under this definition, article XI, section 3 requires a majority of persons who engage in the act of voting who live in the territory to be annexed, as well as those who live in the county to which that territory is to be annexed, to vote in favor of an annexation proposal in order for it to be approved. In other words, the group of voters of which a majority is required consists merely of those who exercise the right to vote on the annexation proposal in question at the election in which the annexation proposal is offered for a vote. The number of votes cast at the ballot box itself is the basis for determining a majority, as opposed to the number of those possessing the qualifications to vote or those registered to vote in the annexing county or area to be annexed but who do not actually vote. Those citizens who fail or choose not to vote are presumed to assent to and acquiesce in the expressed will of the majority. This interpretation of the meaning and effect of the phrase "majority of voters" is consistent with the well-settled, general rule of American election law concerning the method of computing a majority and with the longstanding interpretations of similar constitutional language by the highest courts of our kindred states.

131 Grand County's interpretation of the constitutional language would essentially read the word "registered" into article XI, section 3 of the constitution, and consequently, require that the number of those voting in favor of the annexation proposal be a majority of those registered to vote in the annexing county and the area to be annexed instead of a majority of those voters from the relevant areas who actually voted on the annexation proposition during the election. This would effectively allow those registered voters in the two areas who did not actually vote to be counted as votes against the annexation proposal. Such a method of computing whether a majority of voters have approved a proposition or have elected a candidate would be contrary to the plain meaning of the constitutional provision and the long-established general rule.

132 Therefore, the trial court correctly concluded that only a majority of those voting on the annexation proposal in Emery County and the Green River portion of Grand County needed to vote in favor of the annexation proposal for it to be approved. However, the trial court erred in not certifying the results of the election in accordance with this standard and its determination that the required electoral approval had been achieved.

CONCLUSION

133 For the foregoing reasons, the trial court erred in declaring that section 17-2-6(2) of the Utah Code is unconstitutional because it violates the "general law" provision of article XI, section 3 of the Utah Constitution. Therefore, the trial court's grant of declaratory judgment to Grand County is reversed. Furthermore, the trial court also erred when it refused to certify the annexation proposal election results consistent with its finding that the annexation proposal had received the approval of the required majority of voters in Emery County and the Green River portion of Grand County. The case is remanded for further proceedings consistent with this opinion and the trial court's previous finding that the annexation proposal received the required electoral approval.

1 34 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice WILKINS concur in Justice RUSSONS opinion.

      . There are presently four cities/towns that fall into the class created by the statute. While the number of members of the class may be relatively small, this does not render the law in question "special." 73 Am.Jur.2d Statutes § 10 (1974). Moreover, as populations grow and shift, and as cities and communities expand, new members of the class may come into existence.

      . Citizens' Sav. & Loan Ass'n v. Perry County, 156 U.S. 692, 712, 15 S.Ct. 547, 39 L.Ed. 585 (1895) ("It is well settled by the decisions of this court where a majority of those voting at an election ... vote in favor of [a proposition] for the purpose of registration [or certification] it will be presumed that such majority so voting is a majority of all the legal voters living in the municipality at the time of the election ...."); County of Cass v. Johnston, 95 U.S. 360, 369, 24 L.Ed. 416 (1877) ("All qualified voters who absent themselves from an election duly called are presumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise declares."); Glover v. Hot Springs Kennel Club, Inc., 230 Ark. 544, 323 S.W.2d 902, 905 n. 4, 907 (1959) (interpreting constitutional and statutory language of " 'majority of the voters of the county'" and " 'majority of the qualified electors of such county'" as meaning ""a majority of those voting on the proposition" (citations omitted)); Vance v. Austell, 45 Ark. 400, 406-07 (1885) (endorsing and applying reasoning of County of Cass v. Johnston, 95 U.S. 360, 24 L.Ed. 416); People ex rel. Mitchell v. Warfield, 20 Ill. 159, 164-65 (1858) (interpreting Illinois constitution's language requiring majority of voters of county to approve relocation of county seat as meaning majority of "voters of the county ... who ... vote at the election" and as excluding "other voters of the county who were detained from the election by absence or sickness, or [who] voluntarily absented themselves from the polls"); In re Todd, 208 Ind. 168, 193 N.E. 865, 872-77 (1935) (interpreting "voler" and "elector" in Indiana constitution and holding that group of voters of which majority is required consists of those who exercise right to vote); Walker v. Oswald, 68 Md. 146, 11 A. 711, 713 (1887) ("It has been settled, both in England and in this country, by an almost, if not quite, unbroken current of judicial decisions from the time of Lord Mansrieto to the present day, that when an election is held at which a subject-matter is to be determined by a majority of the voters entitled to cast ballots thereat, those absenting themselves, and those who, being present, abstain from voting, are considered as acquiescing in the result declared by a majority of those actually voting, even though, in point of fact, but a minority of those entitled to vote really do vote."); Taylor v. Taylor, 10 Minn. 107, 116-17 (1865) (interpreting Minnesota constitutional provision requiring that laws changing established county lines be approved by majority of electors of county to be affected and rejecting as manifestly inconvenient and absurd position that provision requires absolute majority of those qualified to vote in county at time of election}; Louisville & Nashville RR. Co. v. County Ct., 33 Tenn. 637, 691-93 (1854) (holding that when approval of proposition is referred "to the decision of a majority of the 'voters of a county," [that phrase] cannot be understood [to] mean anything more than those who see fit to exercise the privilege [of voting on the proposition]"); 26 Am.Jur.2d Elections § 406 (1996) ("In the absence of a statutory provision to the contrary, voters not attending the election or not voting on the matter submitted are presumed to assent to the expressed will of those attending and voting and are not to be taken into consideration in determining the result."); George W. McCrary, A Treatise on the American Law of Elections in McCrary on Elections § 208 (4th ed. 1897) ("'Where a statute [or constitutional provision] requires a question to be decided ... by the votes of 'a majority of the voters of a county," this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, but only that the result shall be decided by the majority of the votes cast .... The 'voters of the county' referred to by all such statutes [or constitutional provisions] are necessarily the vol-ers who vote at the election, since the result in each case must be determined by a count of the ballots cast and not by an inquiry as to the number not cast.").

      . It is worth noting that the general rule as stated herein for computing a majority of voters in an election can be modified by legislative enactment to require a greater majority. The legislature may require a two-thirds majority of voters or a majority of "registered" voters; however, it may do so only where granted the authority by the constitution and then only through explicit and clear language. As previously discussed, article XI, section 3 does not give the legislature authority to modify the voting requirement or approval standard set forth in the constitutional provision. In any event, it appears that the legislature was not attempting to modify or increase the majority required for approval of a section 17-2-6(2) annexation proposal, but rather, merely attempting to implement the stated voting requirement and standard as it appears in article XI, section 3 by using the constitution's exact language.


author: RUSSON, Justice: DURHAM, Chief Justice, HOWE, Justice,

text:
    2002 UT 58
    Jeroldene BAILEY, Plaintiff and Respondent, v. Randee BAYLES, Defendant and Petitioner.
    No. 20010304.
    Supreme Court of Utah.
    June 25, 2002.

      Rosalie Reilly, Monticello, for plaintiff.
    Matthew Hilton, Springville, for defendant.
   On Certiorari to the Utah Court of Appeals

RUSSON, Justice:

1 1 On writ of certiorari, defendant Randee Bayles ("Bayles") seeks reversal of the Utah Court of Appeals' affirmation of the issuance of a protective order against him on grounds and facts different than and supplemental to those found and relied upon by the trial court and annulment of the protective order.

BACKGROUND AND PROCEDURAL HISTORY

11 2 Bayles was married to Jeroldene Bailey ("Bailey") for twenty-seven years. In January 1997, they separated and divorced. On July 7, 1998, Bailey filed a verified petition for a protective order and sought an ex parte protective order against Bayles. Bailey alleged that Bayles, for a period of a year and a half since their separation, had "been engaged in stalking" her. Bailey brought the request for an ex parte protective order and the verified petition on her own behalf but also named Jeff Bailey, her current husband, and Sharo Burtenshaw, one of Bailey's three daughters from her marriage with Bayles, as persons within the seope of the protective order. The trial court issued an ex parte protective order based on the verified petition on the same day the petition was filed.

T 3 Approximately six months later, Bayles moved the trial court to dismiss or deny the ex parte protective order on the basis that it had expired, that it was overly broad in its inclusion of Jeff Bailey and Sharo Burten-shaw, and that the facts did not demonstrate that a protective order was warranted. Bayles also moved the trial court in the alternative to strike Jeff Bailey and Sharo Burtenshaw, arguing that they did not come within the statutory provisions of the Cohabitant Abuse Act, Utah Code Ann. §§ 80-6-1 to -14 (1999), the statute under which the ex parte order was issued and the verified petition was filed. In response to Bayles motions, Bailey moved the trial court for a final hearing on her verified petition for a protective order and asked that the ex parte protective order be made permanent. Both parties submitted memoranda of law in connection with these motions and briefed the issues of law under the Cohabitant Abuse Act.

I. TRIAL COURT DISPOSITION

T4 The trial court denied Bayles' motions and found that both Jeff Bailey and Sharo Burtenshaw fell within the Cohabitant Abuse Act's provisions as designated family members. At the same time, the trial court granted Bailey's motion for a final hearing and set a date for a bench trial.

15 The trial court heard testimony and accepted evidence over the course of three days. Both Bayles and Bailey were present and represented by counsel during the bench trial. In August 1999, the trial court issued a memorandum decision and ordered that the protective order against Bayles be made permanent. In its memorandum decision, the trial court concluded that Bayles had committed an act of domestic violence against Bailey by stalking her. The trial court explicitly relied on two statutory provisions in reaching its conclusion. First, the trial court looked to Utah Code Ann. § 76-5-106.5(2) (1999), the Utah criminal stalking statute, to determine that Bayles had been stalking Bailey. Having determined that Bayles' conduct met the requirements of that statute and that Bayles therefore had stalked Bailey, the trial court then relied upon Utah Code Ann. § 77 36-1(2)(i) (1999), the Cohabitant Abuse Procedures Act, to conclude that Bayles had committed an act of domestic violence against Bailey by stalking her. The trial court did not explicitly rely on the provisions of the Cohabitant Abuse Act in its memorandum decision. The trial court supported its conclusions of law and its decision that the ex parte protective order should be made permanent with somewhat limited yet specific findings of fact. Bayles appealed to the Utah Court of Appeals.

II. COURT OF APPEALS DISPOSITION

T6 On appeal to the Utah Court of Appeals, Bayles challenged the sufficiency of the trial court's findings of fact in support of its conclusion that Bayles had committed an act of domestic violence based on stalking. Bayles argued that the trial court had grounded its conclusion that he had stalked Bailey on the provision of the eriminal stalking statute, Utah Code Ann. § 76-5-106.5(2), and that Bailey had failed to meet her burden of proof under that statute. In affirming the trial court's grant of a permanent protective order, the court of appeals, while agreeing with Bayles that the trial court had relied on the criminal stalking statute for its conclusion, decided that it did not need to reach the sufficiency of the evidence as to the trial court's conclusion on this ground. Bailey v. Bayles, 2001 UT App 34, ¶ 9, 18 P.3d 1129. Instead, the court of appeals decided to affirm the trial court's decision on alternate grounds under Utah Code Ann. § 30-6-2(1) (1999). Bailey, 2001 UT App 34 at ¶¶ 10-11, 18 P.3d 1129. Using this alternate ground, the court of appeals determined that the trial court's ultimate conclusion that a permanent protective order should issue was supported by the specific findings of the trial court and the undisputed evidence. Id. at ¶ 10.

III. WRIT OF CERTIORARI

T7 Bayles filed a petition for a writ of certiorari with this court, seeking review of the decision of the court of appeals. We granted the petition. In this appeal, Bayles raises two arguments. First, Bayles argues that the court of appeals deprived him of his rights of due process of law under the Fourteenth Amendment to the United States Constitution and article 1, section 7 of the Utah Constitution by denying him timely and adequate notice and opportunity to be heard when it affirmed the trial court's decision on alternate legal grounds and found and relied upon additional facts not found by the trial court. Second, Bayles similarly argues that the court of appeals in the same way and for the same reasons deprived him of his right of due course of law under article 1, section 11 of the Utah Constitution. Bayles seeks to have the permanent protective order vacated.

STANDARD OF REVIEW

{8 "When exercising our certiorari jurisdiction, 'we review the decision of the court of appeals, not of the trial court.''' Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 17, 16 P.3d 1214 (quoting Carrier v. Pro-Tech Restoration, 944 P.2d 346, 350 (Utah 1997)). We accord no particular deference to the court of appeals' ruling; we review for legal correctness. Bear River Mut. Ins. Co. v. Wall, 1999 UT 33, ¶ 4, 978 P.2d 460.

ANALYSIS

I. AFFIRM ON ANY GROUND

19 We first must address whether the court of appeals erred in affirming on alternate grounds and then whether the court of appeals denied Bayles due process of law by resorting to the "affirm on any ground" rule. Bayles contends that he was deprived of his fundamental right to timely and adequate notice and opportunity to be heard in a meaningful way when the court of appeals chose to affirm on alternate grounds the trial court's issuance of a permanent protective order against him. Bayles argues that he was unfairly surprised by and unable to adequately respond to the novel legal theory relied upon by the court of appeals when it affirmed on alternate grounds.

{10 It is well settled that an appellate court may affirm the judgment appealed from

"if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action, and this is true even though such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the lower court."

Dipoma v. MecPhie, 2001 UT 61, 118, 29 P.3d 1225 (quoting Limb v. Federated Milk Producers Ass'n, 28 Utah 2d 222, 225-26 n. 2, 461 P.2d 290, 298 n. 2 (1969) (citation and emphasis omitted)); see also Orton v. Carter, 970 P.2d 1254, 1260 (Utah 1998) (applying Limb), 5 CJ.S. Appeal & Error § 714 (1993) ("Generally, the appellate court may affirm the judgment where it is correct on any legal ground or theory disclosed by the record, regardless of the ground, reason, or theory adopted by the trial court."). Moreover, "[al party to an appeal does not have a constitutional right to have a cause of action decided on a particular ground." DeBry v. Noble, 889 P.2d 428, 444 (Utah 1995).

111 Bayles raises in this appeal the same issue we previously decided in DeBry when he argues that the court of appeals denied him due process of law by affirming the trial court's decision on an alternate ground. In DeBry, the court of appeals affirmed the dismissal of a complaint on the basis that the claims were barred by sovereign immunity. Id. The DeBrys argued before this court that they had been denied procedural due process because the court of appeals based its affir-mance on an issue that was not briefed or presented to the court of appeals or to the trial court. Id. We rejected the DeBrys' due process argument and held that the "affirm on any ground" rule "does not deprive a party of due process." Id.

112 Bayles has not provided us with any cogent reason to abandon our holding in DeBry, and he certainly has not met the "substantial burden of persuasion" we require of "[those asking us to overturn prior precedent." State v. Menzies, 889 P.2d 398, 398 (Utah 1994). Therefore, we will not revisit our settled precedent on this point but simply apply it to the present case.

118 As an initial matter in the case at hand, we do not find that the court of appeals erred in affirming the trial court's order on alternate grounds. As the rule states, an appellate court may affirm the judgment appealed from " "f it is sustainable on any legal ground or theory apparent on the record."" Dipoma, 2001 UT 61 at 118, 29 1225 (emphasis added) (quoting Limb, 28 Utah 2d at 225-26 n. 2, 461 P.2d at 298 n. 2).

{ 14 Here, the court of appeals based its affirmation of the lower court's decision on the Cobabitant Abuse Act. Bailey, 2001 UT App 34 at ¶ 11, 18 P.3d 1129. The applicability of the Cohabitant Abuse Act was apparent on the record. The record is rife with references to this statute. The verified petition itself, on its first page, makes reference to a provision of the Cohabitant Abuse Act. Moreover, the record clearly indicates that, at least at the early stages of the action in the lower court, the parties themselves were proceeding under the assumption that the Cobabitant Abuse Act was the applicable statute. After the verified petition was filed and the ex parte protective order was issued, Bayles moved to strike Jeff Bailey and Sharo Burtenshaw from the ex parte order and sought to vacate the order altogether. In bringing his motions and challenging the verified petition and the ex parte protective order, Bayles relied upon the Cohabitant Abuse Act. The stated basis for his motions as explained in his memorandum of law in support of the motions was the Cohabitant Abuse Act. Bailey's memorandum of law in opposition to Bayles' motions also relied on the Cohabitant Abuse Act. Finally, during the course of the bench trial, Bailey explicitly referenced and based her position on the Cohabitant Abuse Act and the case of Strollo v. Strollo, 828 P.2d 532 (Utah Ct.App.1992).

1 15 In view of these numerous references in the record, we conclude that the alternate ground relied upon by the court of appeals in affirming the trial court's decision was apparent on the record, and therefore, under the "affirm on any ground" rule, was & proper ground on which to affirm.

116 As to Bayles' argument that he was surprised when the court of appeals affirmed the trial court's decision based upon the Cohabitant Abuse Act, and as such, was denied adequate and timely notice and an opportunity to be heard, we find Bayles' position to be disingenuous at best given the fact that he relied earlier in the course of the action upon the very statute used by the court of appeals in affirming the trial court's decision. Bayles cannot claim to have been denied adequate notice and an opportunity to be heard on issues arising under the Cohabitant Abuse Act when he himself made resort to it in opposing the verified petition and ex parte protective order before the trial court. Knowing that the Cohabitant Abuse Act was the applicable statute and having previously relied upon it, Bayles could have appealed the trial court's decision on the grounds that the trial court applied the wrong statute and that the facts as found by the trial court were insufficient under the correct statute. He did not do so.

17 Therefore, Bayles was not deprived of his rights of due process of law and due course of law when the court of appeals affirmed the trial court's decision on alternate grounds, and the court of appeals did not err when it found from the record that the trial court's decision could be affirmed based on the alternate legal ground of the Cohabitaht Abuse Act.

II. ADDITIONAL FINDINGS OF FACT

118 We next address Bayles argument that the court of appeals erred by exceeding its authority and proper role when it allegedly found additional facts beyond those found by the trial court, and consequently, denied Bayles due process and due course of law by not giving him an opportunity to dispute those new facts or argue their relevance and applicability under the court of appeals' new legal theory.

119 "The appellate court is entrusted with ensuring legal accuracy and uniformity and should defer to the trial court on factual matters.'' Willey v. Willey, 951 P.2d 226, 230-31 (Utah 1997); see also State v. Pena, 869 P.2d 932, 936 (Utah 1994); State v. Thurman, 846 P.2d 1256, 1266 (Utah 1993). It is inappropriate for an appellate court to disregard the trial court's findings of fact and to assume the role of weighing evidence and making its own findings of fact. Willey, 951 P.2d at 230; see also 5 C.J.S. Appeal and Error § 710 (1993) ("The reviewing court is confined to the facts specially found by the trial court [and tlhe reviewing court may not make findings of fact for or against appellant, and cannot consider evidence to find facts or make a decision upon them or supplement the facts found by the trial court with any additional facts ...." (footnotes omitted)).

120 As we have indicated above, an appellate court may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record. See supra part I. In the limited cireamstance that an appellate court chooses to affirm on an alternate ground, it may do so only where the alternate ground is apparent on the ree-ord. When an alternate theory is apparent on the record, the court of appeals must then determine whether the facts as found by the trial court are sufficient to sustain the decision of the trial court on the alternate ground. The court of appeals is limited to the findings of fact made by the trial court and may not find new facts or reweigh the evidence in light of the new legal theory or alternate ground.

{21 In the case before us, the trial court made specific findings of fact. See supra note 3. Bayles argues that the court of appeals went beyond the trial court's findings of fact by searching the record for additional facts. According to Bayles, the court of appeals then relied on those additional facts in sustaining the trial court's decision under a new legal theory.

122 After reviewing the trial court's findings of fact and the court of appeals' opinion, we agree with Bayles that the court of appeals in certain instances found facts beyond those found by the trial court. In particular, the court of appeals found that "Bayles had pursued a pattern of physical violence that included pushing, slapping, and punching Bailey.'' Bailey, 2001 UT App 34 at ¶ 13, 18 P.3d 1129. The trial court did not find that there had been a pattern of physical violence in which Bayles had pushed and punched Bailey. The trial court simply found that during their "stormy marriage of 27 years" Bayles "physically abused her by slapping her." Moreover, the court of appeals found that "in both her petition and during her testimony, Bailey clearly indicated to the trial court that she experienced a constant fear of Bayles, a fear that was aggravated with every incident." Id. at ¶ 14. There was no finding by the trial court that Bailey was in constant fear of Bayles or that her fear was increased with every incident involving Bayles. The court of appeals, by its own admission, relied not on the trial court's findings of fact, but on the verified petition and Bailey's testimony in finding that Bailey was in constant fear of Bayles. In these two instances, the court of appeals assumed the role of fact finder and in doing so exceeded its proper role. Despite the court of appeals' error in finding additional facts to bolster its affirmation of the trial court's decision to issue a permanent protective order, the trial court's findings of fact as stated in its memorandum decision are sufficient to uphold the court of appeals' affirmation of the trial court. In other words, even when the additional facts found by the court of appeals are stripped away, we conclude that the court of appeals was correct in affirming the trial court on the alternate ground of the Cohabitant Abuse Act because the trial court's findings of fact are sufficient to support the issuance of the permanent protective order under the statute.

{23 We read statutes in accordance with their plain language. Associated Gen. Contractors v. Bd. of Oil, Gas & Mining, Dep't of Natural Res., 2001 UT 112, T 27, 38 P.3d 291. The plain language of section 30-6-2(1) sets forth the requirements that a party must meet to obtain a protective order. The statute provides two alternative grounds upon which a person may seek a protective order. The statute provides:

%24 Therefore, according to the statute, in order for Bailey to obtain a protective order, she was required to show that she was a cohabitant and either that she had been subjected to abuse or domestic violence, or that there was a substantial likelihood of immediate danger of abuse or domestic violence to her. Bailey was a cohabitant as defined by the Cohabitant Abuse Act. This fact is not disputed by Bayles, and the trial court makes specific reference to the parties' twenty-seven-year marriage. Bailey also had been "subjected to abuse." Id. § 30-6-2(1). The trial court found that during their "stormy" twenty-seven-year marriage, Bayles "physically abused [Bailey] by slapping her." Such incidences of physical abuse constitute physical harm under the terms of the statute. Furthermore, the trial court found that Bayles threatened Bailey during their marriage by holding a pistol to her neck and by telling her he could kill her anytime he wanted. This behavior meets the statutory definition of "abuse" in that by doing those things Bayles "intentionally plac{ed] [Bailey] in fear of imminent physical harm." Id. § 30-6-1(1). The court of appeals' decision to affirm on alternate grounds was supported by the trial court's original findings of fact. Therefore, in view of the specific findings of fact made by the trial court, the court of appeals was correct in its decision to affirm the trial court's issuance of the permanent protective order on the alternate ground of section 30-6-2(1).

Any cohbhabitant ... who has been subjected to abuse or domestic violence, or to whom there is a substantial likelihood of immediate danger of abuse or domestic violence, may seek an ex parte protective order or a protective order in accordance with this chapter, whether or not that person has left the residence or the premises in an effort to avoid further abuse.

Utah Code Ann. § 30-6-2(1) (1999) (emphasis added). The statute, in relevant part, defines "cohabitant" as a "person ... who is or was a spouse of the other party." Utah Code Ann. $ 30-6-1(2)(a) (1999). "Abuse" is defined as "attempting to cause, or intentionally or knowingly causing to an adult ... physical harm or intentionally placing another in fear of imminent physical harm." Utah Code Ann. § 80-6-1(1) (1999).

125 The fact that the court of appeals found additional facts beyond those found by the trial court does give us cause for concern and motivates us to remind the court of appeals of its proper role. It does not, however, in this particular situation, compel us to reverse the court of appeals' affirmation of the trial court's decision.

126 As to the constitutional issue raised by Bayles in connection with the court of appeals' improper assumption of the role of fact finder in this case, "[t is fundamental that constitutional issues should be avoided if the case can be properly decided on non-constitutional grounds.'' Vigos v. Mountainland Builders, Inc., 2000 UT 2, ¶ 8, 993 P.2d 207; see also World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 257 (Utah 1994); State v. Anderson, 701 P.2d 1099, 1103 (Utah 1985); State v. Wood, 648 P.2d 71, 82 (Utah 1981); Hoyle v. Monson, 606 P.2d 240, 242 (Utah 1980). Because the decision of the court of appeals to affirm on the alternate ground of the Cohabitant Abuse Act was correct in that this alternate ground was apparent on the record and the issuance of the permanent protective order was sufficiently supported by the findings of fact made by the trial court and without recourse to any additional facts found by the court of appeals, we need not reach the question of whether the court of appeals' assumption and usurpation of the role of fact finder offended Bayles' constitutional guarantees.

CONCLUSION

127 In sum, the court of appeals did not err when it affirmed the decision of the trial court on alternate grounds found in the Cohabitant Abuse Act, nor did it deprive Bayles of his rights of due process of law under the Fourteenth Amendment to the United States Constitution or article I, section 7 of the Utah Constitution or his right to due course of law under article I, section 11 of the Utah Constitution in doing so. Further, despite exceeding its proper role by assuming the role of fact finder and finding additional facts beyond those found by the trial court, the court of appeals did not err in affirming the trial court's issuance of a permanent protective order because the trial court's findings of fact were sufficient to support the permanent protective order under the Cohabitant Abuse Act. For the foregoing reasons, we affirm the court of appeals' decision.

1 28 Associate Chief Justice DURRANT and Justice WILKINS concur in Justice RUSSON'S opinion.

DURHAM, Chief Justice,

concurring:

1 29 I join in the analysis of the majority opinion except for the comment contained in footnote 2, which appears to suggest that this court moves permanently in "lockstep" with the U.S. Supreme Court when construing due process under the Utah Constitution. There is no precedent for the view. The 1942 case referred to in the footnote, Untermyer v. State Tax Comm'n, 102 Utah 214, 129 P.2d 881 (Utah 1942), merely comments on the similarity in language between the state and federal provisions, and observes that therefore "[dlecisions of the Supreme Court of the United States on the due process clauses of the Federal Constitution are 'highly persuasive' as to the application of that clause of our state constitution." That we will look to federal due process analysis, as well as to that of other states, in interpreting the due process clause of Utah's constitution, is axiomatic, but it does not mean that we will routinely collapse state and federal analysis in cases where the parties make arguments for independent construction. In re Worthen, 926 P.2d 853 (Utah 1996), also cited by the majority, also makes that clear. It does say, as the majority notes, that "Utah's constitutional guarantee of due process is substantially the same as the due process guarantees contained [in the federal constitution]." But it then cites Utah cases in which Utah courts have delineated the requirements of due process for state constitutional purposes. In other words, there is a difference between acknowledging that state due process guarantees are the same as federal, and suggesting that this court may never interpret or apply the guarantees in a manner different from the federal courts' interpretation of the federal language. See In re Criminal Investigation, 754 P.2d 633, 647 (Utah 1988) (noting that scope of state constitutional privilege against self incrimination is similar to federal, but that on specific questions, this court "will not necessarily follow the federal model"). Moreover, the majority's footnote also appears to collapse analysis under article I, section 11 with both state and federal due process, a notion that is highly peculiar in view of the fact that there is no federal counterpart to our "open courts" or "remedies" clause.

HOWE, Justice,

dissenting:

I dissent. When the additional facts found by the court of appeals are "stripped away" as countenanced by the majority, there remains no alternate ground on which the court of appeals can be affirmed.

Bailey petitioned for and received an ex parte protective order against Bayles. Her petition was brought pursuant to the Cohabitant Abuse Act, section 30-6-1 to -14, and the Cohabitant Abuse Procedures Act, seetion 77-86-1 to -10. The "domestic violence," which she alleged in her petition, and which she sought protection against, was stalking by her ex-husband Bayles. Stalking is one of many acts of domestic violence listed in section 77-86-1(2) for which a protective order may be sought. The elements of stalking are found in our eriminal code in section 76-5-106.5.

Six months after the protective order had been issued, Bayles moved the trial court to dismiss it. In response, Bailey moved to make it permanent. The trial court held a hearing and found that in the four months preceding the filing of the petition for a protective order, Bayles had stalked Bailey on five different occasions. No other acts of domestic violence were found in support of the order. After finding the five separate acts of stalking, the court found that Bayles knew or should have known that his stalking would cause emotional distress to Bailey because of their stormy marriage of twenty-seven years, during which he called her foul and obscene names, physically abused her, and threatened her with a pistol.

Bayles appealed to the court of appeals contending that the evidence was insufficient to support the trial court's findings of fact that he had stalked her. The court of appeals declined to address Bayles' contention that the evidence of stalking was insufficient but after making additional findings of fact, affirmed the trial court on the alternate ground that Bayles had engaged in a pattern of physical violence against Bailey which caused her to fear him.

The majority opinion correctly holds that the court of appeals erred in making additional findings of fact to support the alternate ground upon which it relied. However, the majority opinion then proceeds to affirm the court of appeals based solely on the trial court's finding that during their "stormy marriage of twenty-seven years," Bayles physically abused Bailey by slapping her. That finding, however, is clearly insufficient to support the protective order. Bayles' conduct during their marriage may have constituted grounds for divorce, but not grounds, standing alone, for a protective order eighteen months later. The trial court's finding of physical abuse during the marriage was made only to demonstrate why Bailey suffered emotional distress when Bayles stalked her on the five occasions and was not intended as a finding of separate and independent acts of domestic violence on which alone to predicate the protective order. She did not seek the protective order on the grounds she had been abused during her marriage, but on the grounds that after their separation, divoree, and her remarriage, Bayles stalked her. Under the Cohabitant Abuse Act and the Cohabitant Abuse Procedures Act, a petitioner is granted a protective order when he or she is in fear of imminent physical harm. Utah Code Ann. § 80-6-1(1). As the court of appeals held in Stroflo v. Strollo, 828 P.2d 532 (Utah Ct.App.1992), the Cohabitant Abuse Act protects those who are reasonably in fear of physical harm resulting from past conduct coupled with the present threat of future harm. In this case, stalking was the present threat. The majority does not identify any other present threat but affirms on "the alternate grounds of section 80-6-2(1)."

The majority relies on section 30-6-4.4 for its holding that no present threat of harm need be shown. It reads too broadly that section which simply provides that "the court may not deny a petitioner relief requested pursuant to this chapter solely because of a lapse of time between an act of domestic violence or abuse and the filing of the petition for an order of protection" (emphasis added). That section is drawn narrowly and does not purport to do away with the requirements of Strollo that the petitioner be reasonably in fear of physical harm resulting from past conduct coupled with a present threat of future harm.

In summary, when the additional findings of facts made by the court of appeals are "stripped away," as countenanced by the majority, the finding of the trial court that there had been abuse eighteen months earlier during their marriage is, standing alone, insufficient to support a protective order. I would reverse the court of appeals and remand this case to it to determine whether the evidence is sufficient to support the trial court's findings of stalking, which is the only possible ground upon which the protective order can be supported.

      . The trial court's findings of fact are as follows:
      1. The respondent maintained a visual or physical proximity to defendant [sic] on two or more occasions as follows:
      A. On June 17, 1998, the respondent drove slowly by the petitioner as she was getting out of her car to go into the house to have lunch.
      B. On May 18, 1998, the petitioner and her husband went to the Old Timers café for lunch. The respondent circled around the restaurant twice and, as the petitioner and her husband left the café, the respondent went to Parley Redds, made a U-turn, and followed petitioner and her husband to their employment at the School District office.
      C. On March 31, 1998, the respondent followed the petitioner slowly in his truck as she walked home for lunch.
      D. On March 13, 1998, the respondent drove by petitioner's home 6 times. When she and her husband were leaving in the car to go for a ride, the respondent drove by, waving and honking.
      E. On June 10, 1998, Jeff Bailey, husband of the petitioner, was driving from Bland-ing to Monticello when the respondent pulled up close behind Mr. Bailey, then pulled alongside him, causing Mr. Bailey to slow down. Respondent drove alongside Mr. Bailey's vehicle at a speed of about 10 raph and then pulled in front of Mr. Bailey and came to a complete stop in the road. Mr. Bailey then pulled out and went around the respondent.
      2. The respondent knew or should have known that the above conduct would cause emotional distress to the petitioner or to her husband, Jeff Bailey, because of the stormy marriage of 27 years during which the respondent called the petitioner foul and obscene names on many occasions, physically abused her by slapping her, and threatened her with bodily harm by holding a pistol to her neck in 1975, and by telling her in the opening day of deer season in the 1990' [sic] that he could kill her anytime he wanted.

      . Bayles relies upon both the United States and Utah constitutional guarantees of due process in his argument. His analysis does not appear to differentiate between the two independent due process clauses and their attendant rights. In any event, we have held that "Utah's constitutional guarantee of due process is substantially the same as the due process guarantees contained in the Fifth and Fourteenth amendments to the United States Constitution." In re Worth-en, 926 P.2d 853, 876 (Utah 1996); see also Untermyer v. State Tax Comm'n, 102 Utah 214, 222-23, 129 P.2d 881, 885 (Utah 1942). Therefore, our analysis of questions concerning procedural due process under the due process provisions of the United States and Utah constitutions are also substantially the same.
      Furthermore, Bayles similarly couches his argument in the context of the constitutional guarantee of due course of law under the Utah constitution. We recently decided in Miller v. USAA Cas. Ins. Co., 2002 UT 6, 138, 44 P.3d 663, that the guarantee of a "day in court" on the procedural level is substantially the same under the due process of law and due course of law provisions of the Utah constitution. Wrapped up in the bundle of procedural rights associated with a party's right to a "day in court" is the fundamental right of timely and adequate notice and an opportunity to be heard in a meaningful way. See id. at I 42. Therefore, inasmuch as the procedural guarantees associated with the due process of law clause and the due course of law provision are substantially the same, the analysis is the same to determine whether Bayles was deprived of adequate and timely notice and an opportunity to be heard in a meaningful way under both the open courts provision and the due process clause of the Utah constitution. See id. In her concurrence, Chief Justice Durham incorrectly accuses the majority of collapsing federal due process, state due process, and state open courts analysis into a monolithic and uniform construct. This is neither the intent nor the effect of the majority's position. The majority's assertion that the rights and legal analysis associated with these various constitutional provisions are substantially the same does not indicate that this court moves in "lockstep" with the United States Supreme Court's due process analysis or foreclose our ability to decide in the future that our state constitutional provisions afford more rights than the federal Constitution.

      . While we acknowledge the existence and validity of the "affirm on any ground" rule of appellate review, we caution that it is a tool available only in limited circumstances. It certainly is limited to affirming decisions on alternate grounds and does not give appellate courts permission to search the record for alternate grounds to reverse a decision. See Limb v. Federated Milk Producers Ass'n, 23 Utah 2d 222, 225-26 n. 2, 461 P.2d 290, 293 n. 2 (1969). This rule does not give appellate courts license to pull from thin air. alternate or novel legal theories with which to affirm decisions below. Even where an alternate legal theory or ground is apparent to the appellate court upon its review, such alternate ground may come as a surprise to the parties. In certain circumstances, then, sound and prudent appellate practice and procedure might dictate that the appellate court afford the parties an opportunity to address and argue an alternate legal theory or ground in supplemental briefs to the court. Such a practice might act to placate the parties' legitimate concerns regarding timely and adequate notice and opportunity to be heard in a meaningful way without necessarily sacrificing the goal of judicial economy embodied in the "affirm on any ground" rule.

      . The verified petition for protective order states in bold on its face that "Petitioner is advised that knowingly falsifying any statement or information to obtain a protective order may subject petitioner to felony prosecution under Utah Code § 30-6-4(b)." The cited code section is a provision of the Cohabitant Abuse Act. See Utah Code Ann. §§ 30-6-1 to -14 (1999).

      . In Strollo, the court of appeals was asked to interpret a previous, yet substantially similar, version of section 30-6-2(1) of the Utah Code, the very provision of the Cohabitant Abuse Act relied upon by the court of appeals in affirming the trial court's decision in this case. 828 P.2d at 533-34.

      . It is clear from the record that Bayles was not only familiar with, but apparently versed in, the provisions of the Cohabitant Abuse Act. At one point in his memorandum of law in support of his motions, he specifically quotes Utah Code Ann. § 30-6-2(1) in its entirety.

      . In interpreting and applying section 30-6-2(1), the dissent concludes that "[ulnder the Cohabitant Abuse Act and the Cohabitant Abuse Procedures Act, a petitioner is granted a protective order when her or she is in fear of imminent physical harm." While this may be an accurate reading and interpretation of the second alternative ground for seeking a protective order under the statute, it ignores the plain language of the statute's first ground for seeking a protective order that provides that a petitioner may alternatively seek a protective order if he or she has been "subjected to abuse or domestic violence."

      . The dissent disagrees with the majority, stating that "Bayles' conduct [i.e., physical abuse] during their marriage may have constituted grounds for divorce, but not grounds, standing alone, for a protective order eighteen months later." This statement, however, ignores the plain language of the statute that requires a cohabitant merely to have been subjected to physical harm, Utah Code Ann. § 30-6-2(1), and does not take into account the legislature's specific enactment of Utah Code Ann. § 30-6-4.4 (1998), which prohibits a court from "deny[ing] a petitioner [a protective order] solely because of a lapse of time between an act of ... abuse and the filing of the petition for an order of protection." Id. The controlling fact for the purposes of the statute, therefore, is not that the abuse took place eighteen months or more prior to the filing of a petition for a protective order, but that Bailey in fact suffered abuse at some point while she was a cohabitant. The trial court found that Bailey suffered such abuse or physical harm during her marriage to Bayles; a fact even the dissent recognizes and accepts. Therefore, the requirements of the statute have been met.

      . Contrary to a statement in the majority opinion, Bayles does not dispute that the petition was brought pursuant to these statutes and that they provide the applicable law.