author: KITE, Justice.

text:
    2003 WY 105
    In the Matter of the Worker's Compensation Claim of Raymond E. WILSON, an Employee of Rocky Mountain Forest Products. Raymond E. Wilson, Appellant (Claimant), v. State of Wyoming ex rel. Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).
    No. 02-230.
    Supreme Court of Wyoming.
    Aug. 29, 2003.

      Representing Appellant: Michael H. Schilling of Schilling & Winn, P.C., Laramie, Wyoming.
    Representing Appeliee: Hoke MacMillan, Attorney General; John W. Renneisen, Deputy Attorney General; Steve Czoschke, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[T1] Raymond E. Wilson appeals from the district court's order reversing the hearing examiner's award of temporary total disability (TTD) benefits based upon his actual monthly earnings at the time he was injured. The district court concluded Mr. Wilson's earnings should have been calculated by averaging his monthly income from the beginning of 2000 through the date he was injured in April 2001. We hold the hearing examiner's calculation was correct and reverse the district court's ruling.

ISSUES

[12] The question for our determination is whether Mr. Wilson had "actual monthly earnings at the time of injury" within the meaning of Wyo. Stat. Ann. § 27-14-408(c) (LexisNexis 2008).

FACTS

[18] Mr. Wilson began working for Rocky Mountain Forest Products (RMEFP) on April 3, 2001. Six days later, on April 9, 2001, he was lifting a bundle of wood at work and injured his back. Mr. Wilson completed his shift, but, when the pain did not subside that evening, his wife took him to the emer-geney room. The attending physician examined him, prescribed medication, and told him not to return to work until a doctor released him. Mr. Wilson later saw Lawrence A. Jenkins, M.D., who determined he had a large left paracentral dise herniation at Lb-S1 and was temporarily totally disabled. In November 2001, Dr. Jenkins performed a left L5 laminotomy and discectomy on Mr. Wilson's back.

[14] Following his injury, Mr. Wilson filed an employee's report of injury with the Wyoming Workers' Safety & Compensation Division (division) and applied for TTD benefits. On October 31, 2001, the division awarded him $200.32 per month in benefits based upon average actual monthly earnings of $300.47. Mr. Wilson objected to the award, claiming the division did not correctly calculate his benefits. The Office of Administrative Hearings held a hearing on January 29, 2002, where Mr. Wilson presented evidence showing RMFP hired him to work forty hours per week at $6.75 per hour resulting in actual monthly earnings of $1,170. Therefore, he argued, pursuant to § 27-14-4083(c), he was entitled to TTD benefits in the amount of $780.03 per month. The division argued Mr. Wilson did not have an established full-time work history at the time he was injured and, in accordance with Goe v. State ex rel. Wyoming Worker's Compensation Division, 2002 WY 6, 38 P.3d 1063 (Wyo.2002), an average of his earnings should be used in calculating his TTD benefits. The division pointed to evidence that Mr. Wilson held numerous jobs prior to working for RMEFP jobs which in some cases lasted just a few days and had worked at RMFP for only five days when he was injured. Given this history, the division argued averaging his earnings up to and including the date of the injury constituted a fairer method of determining his actual monthly earnings under § 27-14-408(c).

[15] On February 25, 2002, the hearing examiner awarded Mr. Wilson TTD benefits based upon his actual monthly earnings of $1,170 at the time of his injury. The division filed a petition for review of the order in district court. Upon reviewing the record and the parties' briefs, the district court found Mr. Wilson's earnings were sporadic and fluctuating, warranting calculation of TTD benefits on the basis of his average earnings up to the time of his injury rather than his actual earnings at the time of his injury. The district court issued a decision letter stating:

Because of the extreme variance in jobs and pay [Mr. Wilson] held in the 2.5 years prior, the Court finds an appropriate and reasonable period of time to use in determining [his] average monthly income should run from the beginning of 2000 through those days in April 2001 reflected on [his] time sheet with RMFP prior to the injury. Considering the age of [Mr. Wilson] and the various types of jobs he held, such a time span seems reasonable for the purpose of approximating an accurate reflection of [his] average monthly income. The Court will order, therefore, that [Mr. Wilson's] actual monthly income be computed as an average over this period of time and that the TTD benefits be paid in accordance with Wyo. Stat Ann. § 27-14-408(c).

The district court entered an order consistent with the decision letter on September 26, 2002.

STANDARD OF REVIEW

[16] To resolve the question before us, we must interpret the statutory provisions governing the calculation of TTD benefits. Statutory interpretation is a question of law. Goe, 2002 WY 6, ¶ 6, 38 P.3d 1063. We are governed by the following standards:

We decide initially whether the statute is clear or ambiguous. This Court makes that determination as a matter of law. If we determine that a statute is clear and unambiguous, we give effect to the plain language of the statute. In effectuating the plain language of the statute,
[wle begin by making an " "inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. " Parker Land and Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1042 (Wyo.1998) (quoting Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819, 823 (1897)). We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia.
State Department of Revenue and Taxation v. Pacificorp, 872 P.2d 1163, 1166 (Wyo.1994). If, on the other hand, we determine that the statute is ambiguous, we resort to general principles of statutory construction to determine the legislature's intent.

Wyoming Department of Transportation v. Haglund, 982 P.2d 699, 701 (Wyo.1999) (some citations omitted); see also Brierley v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2002 WY 121, ¶ 10, 52 P.3d 564, ¶ 10 (Wyo.2002). We affirm agency decisions when they are in accordance with the law and correct those that are contrary to the law. Powder River Coal Company v. Wyoming State Board of Equalization, 2002 WY 5, ¶ 6, 38 P.3d 423, ¶ 6 (Wyo.2002). When considering an appeal from a district court's review of an agency's action, we accord no special deference to the district court's conclusions. Newman v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2002 WY 91, ¶ 7, 49 P.3d 163, ¶ 7 (Wyo.2002). Instead, we review the case as if it had come directly to us from the administrative agency. Id. When an appeal is from a contested case proceeding under the Wyoming Administrative Procedure Act in which both parties presented evidence and factual findings were made, we review the findings for substantial evidence. Id. at ¶ 22, 49 P.3d 163. Substantial evidence is relevant evidence that a reasonable mind might accept in support of the agency's conclusions. Voss v. Albany County Commissioners, 2008 WY 94, ¶ 10, 74 P.3d 714.

DISCUSSION

[17] The calculation of TTD benefits is governed by § 27-14-4083(c), which provides in pertinent part:

For temporary total disability under paragraph (a)) of this section, the award shall be paid monthly at the rate of two-thirds (2/3) of the injured employee's actual monthly earnings at the time of injury but not to exceed the statewide average monthly wage for the twelve (12) month period immediately preceding the quarterly period in which the injury occurred as determined pursuant to W.S. 27-14-802.

(Emphasis added.) The term "actual monthly earnings" is defined in Wyo. Stat. Ann. § 27-14-408(j)(i) (LexisNexis 2003) as "the injured employee's actual monthly earnings at the time of injury excluding any payment for casual or unscheduled overtime and any fringe benefit." (Emphasis added.) The rules and regulations governing worker's compensation claims provide the following procedure for determining TTD benefits:

(A) Temporary wage rate is computed as follows:
(I) Hourly rate multiplied by the total number of hours worked within the employer's established work week = weekly rate.
(II) Weekly rate multiplied by fifty-two (52) and divided by twelve (12) = monthly rate.
(III) Monthly rate multiplied by .6667 = temporary total disability wage rate (not to exeeed the maximum wage established by the division for the quarter of injury). W.S. § 27-14-802(b).
(B) Overtime will be considered if verification is received from the employer.
(C) In the case where the worker was paid by other than hourly[,] weekly or monthly rate of pay, verification of average monthly wage must be obtained by the worker from the employer,. The worker must be able to provide copies of at least three (8) months of wage history with the current employer. If three (8) months of information is not available from the worker, verification of average monthly wage must be obtained from the employer.

Wyoming Workers' Compensation Rules, Regulations and Fee Schedules, ch. 6, § 2(a)(1) (Sept. 10, 1999) (amended Nov. 20, 2001).

[18] Giving effect to the plain and ordinary meaning of the words contained in these provisions, we hold that Mr. Wilson's TTD benefits were to be calculated on the basis of his actual monthly earnings at the time of his injury. It is undisputed that, at the time of his injury, Mr. Wilson was earning $6.75 per hour and was hired to work forty hours per week, resulting in actual earnings of $1,170 per month as the hearing examiner concluded. The division argues, however, and the district court held that Mr. Wilson's benefits could not be calculated based upon "actual monthly earnings" because his earnings were sporadic and fluctuating. Relying on Goe, 2002 WY 6, 38 P.3d 1063, the division contends the district court properly concluded Mr. Wilson's work history did not support a calculation based upon the $6.75 wage at forty hours per week and averaging his earnings over some period of time prior and up to his injury more accurately reflected his actual earnings.

[19] In Gog, a horse kicked and injured Mr. Goe while he was working as a hunting guide for an outfitter. The evidence showed that the wages paid by the employer fluctuated widely from pay period to pay period Mr. Goe earned $560.75 in July, $1,000 in August, and $1,500 in September. 2002 WY 6, T 14, 38 P.3d 1063. Mr. Goe argued his actual monthly earnings for the purpose of computing TTD benefits were $1600, the amount he and his employer agreed he would have earned in October had he not been injured and been able to finish out the month. Id. We held: hearing examiner's decision to average Goe's income to determine the appropriate amount of TTD benefits was appropriate because Goe did not meet his burden to prove his actual monthly earnings were $1,600.00 per month." Id. at ¶ 13, 38 P.3d 1063.

[110] In reaching this result, we cited Hasser v. Flint Emgineering, 647 P.2d 66 (Wyo.1982), another case in which the employee's hours and rate of pay fluctuated, and we upheld a TTD award based upon an average of his wages rather than his actual pay the week of the injury. We said:

[Those administering the Worker's Compensation Act have devised a method of computing an hourly wage earner's monthly rate. They multiply the hourly rate by the hours worked in a week, times the fifty-two weeks in the year, and divide by twelve months. This formula seems to work reasonably well and does result in a figure which approximates a monthly rate of pay. Accordingly we have no quarrel with its use so long as the resulting figure fairly represents the parties' understanding. It cannot be applied with precision here because of the variable hours per week put in by appellant under the terms of his employment.

647 P.2d at 69 (emphasis added). In Gog, we rejected the employee's efforts to distinguish Hasser, concluding that, like the latter case, the evidence in Goe "demonstrated that [the employee's] earnings fluctuated widely from pay period to pay period." 2002 WY 6, 11, 38 P.3d 1063. 'We concluded the definition of "actual monthly earnings" was not applicable in (oe because the employee's earnings were "not consistent and fixed month after month." Id. Because the evidence showed Mr. Goe did not have actual monthly earnings as defined in § 27-14-403()G), we applied Chapter 6, Section 2(a)G)(C) of the division's rules which expressly references averaging monthly wages in cases where the worker is "paid by other than hourly, weekly or monthly rate of pay."

[111] Unlike the situations in Hasser and Goe, Mr. Wilson had actual monthly earnings at the time of his injury within the meaning of § 27-14-4083(c). In contrast to Goe, Mr. Wilson's earnings at the time of his injury did not fluctuate widely from pay period to pay period but were consistent and fixed month after month at a specified hourly rate and number of hours per week. Unlike in FHasser, the formula prescribed in § 27-14-403(c) could be applied with precision to the terms of Mr. Wilson's employment because his hours were fixed rather than variable. Given the terms of his employment with RMFP, Mr. Wilson was not "paid by other than hourly, weekly or monthly rate of pay," and, therefore, Chapter 6, Section 2(a)(N(C) of the division's rules was not applicable. We hold that Mr. Wilson had "actual monthly earnings at the time of injury" as provided in § 27-14-4083(c) and the hearing examiner properly calculated his benefits by applying the formula set out in Chapter 6, Section 2(a)(1)(A) of the division's rules.

[T12] In reaching this result, we note that the district court's ruling appears to have been based on what seemed fair and reasonable under the circumstances rather than the governing statutes and rules. While the evidence undoubtedly raised questions about Mr. Wilson's work history and the longevity of his employment with RMFP, the answers to such questions are speculative and irrelevant to the statutory framework of the worker's compensation law, which focuses on the circumstances at the time of the injury. Section 27-14-408(c) unequivocally requires that TTD benefits are to be based upon an employee's actual earnings at the time of injury, and we are not free to reach a different result simply because the employee only recently began working at a higher wage than he earned in the past.

[113] We reverse the district court's order, thereby affirming the hearing examiner's award.


source: Caselaw Access Project

author: Judge KAPELKE,

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel T. WALKER, Defendant-Appellant.
    No. 01CA2199.
    Colorado Court of Appeals, Div. III.
    Nov. 7, 2002.
    As Modified on Denial of Rehearing April 24, 2003.
    Certiorari Denied Aug. 18, 2003.
    Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.
   Opinion by

Judge KAPELKE,

Defendant, Daniel T. Walker, appeals from the district court's order denying his motion for postconviction relief under Crim. P. 85(a). We affirm.

In February 1998, defendant forged and cashed two checks on his wife's personal checking account,. He later pled guilty to two counts of forgery, a class five felony, for which he was placed on probation for three years. Probation was revoked after defendant violated the conditions of probation, and he was sentenced to a term of one year imprisonment to be followed by two years of mandatory - parole _ under § 18-1.8-401(1)(a)(V)(A), C.R.S.2002 (formerly codified at § 18-1-105(1)(a)(V)(A)).

Defendant later filed this postconviction motion, asserting that his mandatory parole term violated his constitutional right to equal protection of the laws. The motion was denied, and this appeal followed.

L.

Defendant contends that the mandatory parole laws violate his right to equal protection because, under the sentencing scheme in place when he committed his crimes, a sex offender who committed the same class of felony as a non-sex offender would be subject to only a discretionary parole term. We disagree.

Statutes are presumed to be constitutional, and the party challenging a statute bears the burden of proving its invalidity beyond a reasonable doubt. People v. J.P.L., 49 P.3d 1209 (Colo.App.2002).

Equal protection of the laws ensures that similarly situated persons will receive similar treatment. U.S. Const. amend. XIV; Colo. Const. art. II, § 25; People v. Friesen, 45 P.3d 784 (Colo.App.2001). Thus, the threshold question in addressing an equal protection challenge is whether the person alleging disparate treatment is in fact similarly situated. In the criminal law context, equal protection issues arise where disparate penalties are imposed to punish identical or similar criminal conduct. People v. Young, 859 P.2d 814 (Colo.1993); People v. Friesen, supra.

In Friesen, a division of this court rejected the contention that defendant makes here. The division concluded that offenders are not similarly situated based solely on the felony class of their crimes, because each felony class includes numerous offenses that do not involve the same or similar criminal conduct.

Nevertheless, defendant argues that the analysis in Friesen is flawed because it fails to recognize that, under § 17-22.5-102.5, C.R.S.2002, the purposes of parole are the same for all offenders, and therefore all offenders are "similarly situated" for equal protection purposes regardless of the nature of their crimes. We are not persuaded.

The eriminal code contains separate provisions for the parole of sex offenders and non-sex _ offenders. Compare - § 18-1.3-401(1)(a)(V)(C), C.R.§.2002, with § 18-1.3-401(1)(a)(V)(C.5), C.R.S8.2002. In Martin v. People, 27 P.3d 846, 862 (Colo.2001), the court recognized "the legislature's continuing desire to set sex offenders apart from other offenders for the purpose of parole period determination" and concluded that mandatory parole is inapplicable to those who commit sex crimes. See also People v. Cooper, 27 P.3d 348 (Colo.2001). Thus, contrary to defendant's assertion, sex offenders and non-sex offenders are subject to different parole laws and are not similarly situated for purposes of parole.

We agree with the reasoning and holding of Friesen. Although the right to equal protection precludes imposition of different punishments for "the same acts committed under like cireumstances by persons in like situations," it generally does not prevent the General Assembly from prescribing differing degrees of punishment for separately defined crimes. People v. Black, 915 P.2d 1257, 1260 (Colo.1996)(quoting People v. Calvaresti, 188 Colo. 277, 282, 534 P.2d 316, 318 (1975).

IL.

Finally, defendant contends that his mandatory parole sentence violates his rights to equal protection because he was subject to a harsher sentence than those who commit sexual offenses. Again, we disagree.

The legislature is entitled to provide more severe penalties for crimes which it believes have greater social impact and graver consequences, so long as the classification bears a rational relationship to the public purpose sought to be served. People v. Montoya, 196 Colo. 111, 582 P.2d 673 (1978).

Where, as here, the offenses implicated are different and therefore persons charged under them are not "similarly situated, the issue presented does not fall within traditional concepts of equal protection. People v. Suazo, 867 P.2d 161 (Colo.App.1993). Rather, our supreme court has held that there is no violation of equal protection rights when crimes, which are readily distinguishable on the basis of their elements, impose disparate penalties. People v. Black, 915 P.2d 1257 (Colo.1996); People v. Czajkowski, 193 Colo. 352, 568 P.2d 23 (1977) (holding that the court could not state that the General Assembly had constitutionally erred in providing more severe penalties for an act which it believes to be of greater social consequence). Defendant cites no case which persuades us that the General Assembly's penalty scheme here is unconstitutional.

The district court's order is affirmed.

Judge NEY and Judge CASEBOLT concur.


author: OPALA, v.C.J.

text:
    2003 OK 50
    BLITZ U.S.A., INC., Protestant/Appellant, v. OKLAHOMA TAX COMMISSION, Respondent/Appellee.
    No. 96,883.
    Supreme Court of Oklahoma.
    May 13, 2003.
    As Corrected May 22, 2003.
    Rehearing Denied Sept. 29, 2003.

      Robert O. O'Bannon and Hal Wm. Ezzell, Phillips McFall McCaffrey McVay & Murrah, P.C., Oklahoma City, OK, for Appellant.
    Douglas B. Allen, General Counsel and J.L. Miller and Lyn Martin-Diehl, Assistant General Counsel, Oklahoma Tax Commission, Oklahoma City, OK, for Appellee.

      . Identified herein are only those counsel for the parties whose names appear on the cerfflorari briefs in this court.

   OPALA, v.C.J.

4 1 The sole issue tendered on certiorari is whether the state income tax exemption for royalty earned by an inventor extends to a company's net income from the sale of products it also invents and manufactures, We answer in the negative.

ANATOMY OF LITIGATION

1 2 Blitz U.S.A., Inc. (taxpayer or the company) is a closely-held corporation located in Miami, Oklahoma. It has elected for federal and state income tax purposes Subchapter S tax status under the United States Internal Revenue Code. As a Subchapter S corporation, taxpayer's corporate earnings are reportable and taxable as the personal income of its three individual shareholders. After filing its original income tax returns for fiscal years 1998 through 1995, taxpayer came to believe that a portion of its previously reported net distributable income in each of those years was in fact exempt as royalty earned by an inventor within the meaning of 74 ©.8.1991 § 5064.7.A.1., one of two tax incentive provisions contained in the Inventor's Assistance Act (the Act) To take advantage of this exemption, taxpayer in 1998 filed amended state income tax returns for fiscal years 1998-1995. The company similarly claimed the inventor's royalty exemption in its original return for fiscal year 1996, also filed in 1998.

T3 The Audit Division of the Oklahoma Tax Commission (the Commission) disallowed the exemption. Taxpayer timely filed a protest, which was heard before an Administrative Law Judge (the ALJ) on 28 June 2000. The Audit Division at the hearing challenged (1) the capacity of a corporate taxpayer to claim the status of inventor under the Act and (2) the right of taxpayer to apply the inventor's royalty exemption to the company's net income from the sale of products it develops and manufactures.

T4 The ALJ initially issued Findings of Fact, Conclusions of Law, and a Recommendation in favor of taxpayer on both issues, but upon the Audit Division's motion, the ALJ reconsidered and ruled that, although taxpayer qualifies as an inventor under the Act, its net income from the sale of products it also invents and manufactures is not eligible for the inventor's royalty exemption. The ALJ recommended that taxpayer's protest be denied. The Commission agreed, adopted the ALJ's reconsidered Findings, Conclusions, and Recommendation, entered its order denying taxpayer's protest, and declared its ruling to have precedential value for the agency.

T5 Taxpayer appealed and the Court of Civil Appeals, Division I, reversed, holding that the word "royalties" as defined in the Act is broad enough to include net income from the sale of products invented and manufactured by the same company. We granted certiorari upon the Commission's petition and now hold that a company's net income from the sale of products it also invents and manufactures does not constitute royalty earned by an inventor within the meaning of § 5064.7.A.1. of the Act.

II

STANDARD OF REVIEW

16 The dispositive issue in this case is whether taxpayer's net income from products it invents, manufactures, and sells is exempt from state income tax as royalty earned by an inventor. Resolution of the pivotal issue calls for ascertaining the meaning of the phrase "royalty earned by an inventor" as used in the text of 74 0.8.1991 § 5064.7.A.1. Statutory construction presents a question of law. The Commission's legal rulings, like those made by a district court judge, are on review subject to an appellate court's plenary, independent and nondeferential reexamination. We hence review de novo the Commission's attribution of meaning to the critical part of the statutory text.

TH

THE EXEMPTION FOR ROYALTY EARNED BY AN INVENTOR EXTENDS ONLY TO THAT WHICH AN INVENTOR RECEIVES QUA INVENTOR IN EXCHANGE FOR THE RIGHT TO USE THE FRUIT OF THE INVENTORS CREATIVE ACTIVITY

A. The Pertinent Provisions of the Act

T7 Prominent among the various services and benefits bestowed by the Act are tax incentives for inventors and for in-state businesses that manufacture a product developed in this state by an inventor,. As originally enacted in 1987, the tax incentive for inventors, § 5064.T.A.1., stated:

"A. The following incentives shall be available to inventors for products developed under this act ...:
1. Income earned by an inventor from a product developed under this act shall be exempt from state income tax for a period of seven (7) years from January 1 of the first year in which such income is received as long as the manufacturer remains in the state; ..." (emphasis added)

T8 In 1988 the Legislature amended this provision by modifying the introductory clause and by replacing the word "income" with the word "royalty" in subsection 1. Accordingly, throughout the fiscal years relevant to this case, the tax incentive afforded inventors stated:

"A. The following incentives shall be available to inventors for products developed and manufactured in this state ...; provided, to qualify for the incentives, the product shall be patented or have patent pending pursuant to federal law and shall be registered with the Department of Commerce:
1. Royalty earned by an inventor from a product developed and manufactured in this state shall be exempt from state income tax for a period of seven (7) years from January 1 of the first year in which such royalty is received as long as the manufacturer remains in the state; ..." (emphasis added)

T9 As originally enacted in 1987, the tax incentive for businesses that manufacture a locally invented product, 74 O0.8.1991 § 5064.7.A.2., granted manufacturers a tax incentive similar to that afforded inventors. It stated:

"A. The following incentives shall be available to ... businesses who manufacture ... products [developed under this act]:
2. Income earned by a business that manufactures a product developed under this program that is directly attributable to such product shall be exempt from state income tax for a period of seven (7) years from January 1 of the first year in which such income is received."

This provision was also amended in 1988 to abolish the exemption for income and replace it with a limited exclusion for depreciable property directly used in the manufacture of locally invented products Accordingly, throughout the fiscal years relevant to this case, the tam incentive for manufacturers stated:

"A. The following incentives shall be available to ... instate manufacturers of ... products [developed and manufactured in this state]; provided, to qualify for the incentives, the product shall be patented or have patent pending pursuant to federal law and shall be registered with the Department of Commerce:
2. An instate manufacturer of a product developed in this state by an inventor shall be eligible for a tax credit, as provided for in Section 2357.4 of Title 68 of the Oklahoma Statutes. In addition such manufacturer may exclude from Oklahoma taxable income, or in the case of an individual, the Oklahoma adjusted gross income, sixty-five percent (65%) of the cost of depreciable property purchased and utilized directly in manufacturing the product. The maximum exclusion shall not exceed Five Hundred Thousand Dollars ($500,-000.00).... For the purposes of this paragraph, "depreciable _ property" means machinery, fixtures, equipment, buildings, or substantial improvements thereto, placed in service in this state during the taxable year."

{10 Although the Commission does not dispute that taxpayer, in its capacity as the manufacturer of locally invented products, is entitled to the tax incentives available under this provision, we quote it here because the Commission contends that the 1988 amendment to the manufacturer's tax incentive bears on the meaning of the inventor's tax incentive.

T 11 The Legislature also defined the term "royalties" in the 1987 version of the Act and has left that definition substantially unchanged since then. As originally enacted, the Act's substantive provisions did not use the singular form of the word, but only the plural form-"royalties." - The singular form of the word-"royalty"-was added to the substantive provisions of the Act in 1988 when the Legislature substituted "royalty" for "income" in the amendment to § 5064.7.A.1. The statutory definition of royalties provides:

" 'Royalties' means all things of value received by an inventor in connection with the licensing, rental or sale of a product patented, in patent pending, or trademarked pursuant to federal law."

B. The Parties Contentions

[ 12 Taxpayer urges that $ 5064.7.A.1. and the Act's definition of the pivotal term "royalties" are clear and unambiguous, plainly authorizing taxpayer to treat as exempt its net income from the sale of manufactured articles that originated as taxpayer-created inventions and were subsequently patented. According to taxpayer, net income from the sale of taxpayer-invented products meets each and every condition of the Act's definition of royalties. It is a(a) thing of value (b) received by an inventor (c) in connection with the sale (d) of patented products. Taxpayer urges that its identity as the inventor of the products at issue and its identity as their manufacturer is inseparable so that when it receives payment from its customers for the manufactured products, it is as an inventor, and not just as a manufacturer and seller, that the payment is received.

113 The Commission posits several reasons why taxpayer's construction of the Act's inventor's tax incentive is unsustainable. First, the Commission argues that royalty income is a predicate to the royalty exemption and taxpayer did not report any royalty income on its federal or state tax returns. Second, the Commission asserts that by replacing the generic word "income" with the word "royalty" in the 1988 amendment to § 5064.7.A.1., the Legislature intended to narrow the exemption available to inventors. Third, the Commission asserts that the elimination of the word "income" from both § 5064.7.A.1. and § 5064.7.A.2. in the 1988 amendments shows that the Legislature had come to reject the idea of a sweeping exemption from state income tax for both inventors and manufacturers.

C. The Inventor's Royalty Exemption Does Not Encompass Net Income from a Trade or Business

§14 The seope of the statutory royalty exemption afforded inventors from state income tax is a question of first impression. It requires us to pass upon a legislative enactment's meaning. The goal of any inquiry into the meaning of a legislative act is to ascertain and give effect to the intent of the legislature. The law-making body is presumed to have expressed its intent in a statute's language and to have intended what the text expresses. Hence, where a statute is plain and unambiguous, it will not be subject to judicial construction, but will be given the effect its language dictates. Only where the intent cannot be ascertained from a statute's text, as occurs when ambiguity or conflict (with other statutes) is shown to exist, may rules of statutory construction be employed. Statutes that provide an exemption from taxation are to be strictly construed against the claimant.

115 We do not agree with taxpayer that the scope of the Act's royalty exemption is clear and unambiguous where, as here, a manufacturer sells to retailers or consumers products the company itself invents. Ordinarily an inventor sells an invention to a manufacturer who then fabricates and sells the product as a manufactured article of commerce. In that case, the income received by the inventor from the manufacturer may be generated in commection with the product's sale, but it is attributable to the invention and is completely separate and distinct from the income received by the manufacturer for the manufactured article Where as here the inventor and manufacturer are one and the same, it is unclear whether the Legislature intended to treat taxpayer as an inventor with respect to income received as the manufacturer and seller of the taxpayer-invented articles.

116 Tax exemptions must be construed sensibly in order to give effect to the governing legislative scheme. The Act's overall purpose is to encourage and assist inventors in developing the fruit of their creative intellectual activity into commercially viable products for the benefit of the state's economy. To achieve this end, the Legislature determined that two distinct groups should receive tax incentives, inventors and manufacturers. The Legislature clearly intended in § 5064.7 to provide different tax treatment for the income generated by each.

17 When an invention is sold, the inventor transfers the product of his (or her) mind and skill; when a patented invention is sold, the inventor transfers the governmentally-conferred right to exelude others from making, using or selling the handiwork of the inventor's creativity. An inventor sells intangible intellectual property in return for which the inventor receives a royalty. A manufacturer, on the other hand, sells tangible personal property. What it earns in return is the manufacturer's profit from a trade or business. Royalty and profit each represent a distinct source of income.

18 Payment received by a company from the manufacture and sale of products of its own invention is not "received by an inventor" as required by the definition of royalties nor is it "earned by an inventor" within the meaning of § 5064.7.A.1. The tax incentive for inventors encompasses only that which is received by an inventor qua inventor for the sale of the only thing an inventor has to sell-a creative idea. It does not include that which an inventor/manufacturer receives from the sale of a product it invents after the product is manufactured as a tangible article of commerce.

{19 This conclusion is supported by the amendment made to the inventor's tax exemption in 1988. When construing a statute which has been amended, we are mindful that the legislature may have intended either (a) to effect a change in the existing law, or (b) to clarify that which previously appeared doubtful. If the definition of royalties is understood as taxpayer advocates the amendment to the inventor's tax exemption makes little sense because it would have neither clarified nor changed the existing law. A clarification is attempted only where there is some doubt as to a law's meaning or effect. The record provides no proof that such doubt had arisen with respect to this law. If such doubt did exist, the Legislature surely would have chosen a less confusing way to clarify it. Taxpayer contends that the Legislature rejected the common understanding of royalties as a subset of income and instead redefined it as essentially synonymous with income. For the Legislature to have substituted for income in § 5064.7.A.1. a word that is commonly understood as far more restrictive than income would have been misleading if its intent was to clarify that income in its broadest sense was to remain exempt.

T20 Similarly, applying the meaning ascribed to the statutory definition by taxpayer, the 1988 amendment's substitution of the word royalty for income would not have changed the existing law since the two words are in taxpayer's view virtually synonymous. Before the amendment the statute expressly exempted income and after the amendment, according to taxpayer's construction of the definition, the statute continued to provide a sweeping exemption for income but renamed it royalties.

€21 We also agree with the Commission that the 1988 amendment to the Act's tax incentive for manufacturers strongly suggests that the Legislature would not have approved imputing the manufacturer's profit to the inventor as his or her royalty where the effect would be to provide a complete exemption from income tax for the manufacturer's profit.

122 Taxpayer's argument that it is not seeking to exempt manufacturing income but only royalty it receives as an inventor is belied by the manner in which taxpayer reported that income on its federal tax returns and on its state tax returns for purposes other than this exemption. In both instance es, taxpayer failed to report any royalty income. Moreover, taxpayer's vice-president and treasurer testified at the hearing that taxpayer is primarily a manufacturing company that earns its income from the sale of its products to retailers and customers. He further testified that taxpayer receives no royalty income and that it would not pay as royalty in an arm's length transaction one hundred percent (100%) of its profits. Finally, there is no evidence that taxpayer's customers thought they were paying, or had any intent to pay, a royalty to the inventor of the product.

1 23 Finally, the royalty exemption provided by the Act has a counterpart in the Oklahoma Income Tax Act. The provisions of 68 ©.9.2001 § 2859.D. state:

"Royalty earned by an inventor from products developed and manufactured in this state shall be exempt from the tax imposed by Section 2855 of this title for a seven-year period, pursuant to the provisions of Section 5064.7 of Title 74 of the Oklahoma Statutes."

The Oklahoma Income Tax Act does not define the word "royalty," but as is the case with many terms employed in the state income tax code, meaning is to be supplied by the Internal Revenue Code." As it turns out, neither the Internal Revenue Code nor the federal regulations implementing it define the term "royalty," but the Internal Revenue Service has defined that term in a revenue ruling as a payment that relates "to the use of a valuable right" such as a trademark, trade name, or copyright. The word has also been defined by the United States Court of Appeals for the Tenth Circuit as "compensation paid to owners of a patent or copyright for the use of it or the right to act under it." The exemption for royalty in the Oklahoma Income Tax Act and the exemption for royalty in the Inventors Assistance Act are one and the same exemption and must be construed harmoniously. Net income from the sale of a fully manufactured article of commerce does not meet the definition of royalty as adopted for use in the federal and state tax codes.

IV

SUMMARY

124 Taxpayer seeks, pursuant to the Inventors Assistance Act, to exempt from net distributable income the net income from the sale of products invented and manufactured by taxpayer. The Legislature intended to make available to inventors an income tax exemption limited to payments an inventor receives as an inventor for the intellectual property constituting the invention. Net income from a trade or business earned by a manufacturer from the sale of products of which the manufacturer is also the inventor is not exempt as royalty earned by an inventor.

25 THE COURT OF CIVIL APPEALS OPINION IS VACATED AND THE ORDER OF THE OKLAHOMA TAX COMMISSION IS AFFIRMED.

[ 26 WATT, C.J., OPALA, V.C.J., and HODGES, LAVENDER, SUMMERS and BOUDREAU, JJ., concur.

T27 KAUGER, J., concurs in part and dissents in part.

4 28 HARGRAVE and WINCHESTER, JJ., dissent. *

      . See the provisions of 26 U.S.C. § 1361 et seq. In Bufferd v. Comm'r of Internal Revenue, 506 U.S. 523, 524-525, 113 S.Ct. 927, 928-929, 122 L.Ed.2d 306 (1993), the United States Supreme Court explained that the purpose of the special tax status afforded by Subchapter S of the Internal Revenue Code, is "to eliminate tax disadvantages that might dissuade small businesses from adopting the corporate form and to lessen the tax burden on such businesses." The primary advantage of a Subchapter S corporation is the avoidance of taxation at both the corporate and individual shareholder level. The income of a non-electing corporation (a C corporation) is subject to the corporate tax and the income of its shareholders in the form of any distributions the corporation makes to them is subject to a second, individual tax. Under Subchapter S, taxable income is determined at the corporate level, but is passed through to the S corporation's shareholders and taxed to them at their individual rates, in a manner similar to the tax treatment afforded partnerships. See the terms of 68 0.S.2001 § 2365 for the provisions of the Oklahoma Income Tax Act relating to Subchapter S tax treatment.

      . See infra text at page 5 of this opinion for the provisions of 74 0.$.1991 § 5064.7.A.1.

      . The Act is codified at 74 0.$.2001 § 5064.1 et seq.

      . The Commission argued that taxpayer could not be considered the inventor of the products at issue for purposes of the Act's tax incentive provision because it was not listed as the inventor on the federal patent applications for those products. Taxpayer was instead the assignee of the patents applied for by one or more of its employees who participated in the creative process leading to the products' development.

      . That portion of the Commission's order relating to the capacity of taxpayer to claim the status of an inventor under the Act was not challenged by a Commission counter-appeal and is not tendered as an issue now before this court.

      . See the provisions of 68 O. S, 2001 § 221, which fashion the procedure to be followed in taxpayer protests of Commission assessments. With respect to a Commission order disposing of a protest, § 221 states in pertinent part:
      "G. - After removing the identity of the taxpayer, the Tax Commission shall make the order available for public inspection and shall publish those orders the Tax Commission deems to be of precedential value." (emphasis added)

      . See infra text at page 6 of this opinion for the Act's definition of the term "royalties."

      . See infra text at page 5 of this opinion for the provisions of § 5064.7.A.1.

      . Mangrum v. Fensco, Inc., 1999 OK 78, ¶4, 989 P.2d 461, 462; Wilson v. Wilson, 1999 OK 65, ¶3, 987 P.2d 1210, 1212; Anderson v. Dep't. of Human Services, 1995 OK CIV APP 136, ¶9, 916 P.2d 846, 848.

      . Manley v. Brown, 1999 OK 79, ¶ 22 n. 30, 989 P.2d 448, 456 n. 30; Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125,¶5, n. 1, 932 P.2d 1100, 1106, n. 1; Baptist Medical Center v. Pruett, 1999 OK CIV APP 39, ¶ 11, 978 P.2d 1005, 1008.

      . Arrow Tool & Gauge v. Mead, 2000 OK 86 ¶ 6, 16 P.3d 1120, 1123; Wilson v. Wilson, supra note 10 at 13, at 1212; Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1084.

      . In its amended FY93-95 and original FY96 return, taxpayer claimed it was entitled to this tax exemption for manufacturers and the Commission agreed.

      . See the provisions of 74 0.$.1991 § 5064.6, which authorize the relevant state agency to receive a fee for providing assistance to an inventor in an amount not to exceed "ten percent (10%) of all royalties from any product developed under the inventors assistance program for a period of ten (10) years from the first day after royalties are received from the commercial licensing, rental or sale of thé product."

      . 74 0.$.2001 § 5064.3.6.

      . An application for leave to file a brief amicus curiae after the normal briefing cycle set for the party to be supported was submitted by the Honorable Robert M. Kerr to the Court of Civil Appeals. To receive permission, an amicus must show extraordinary cause. See the provisions of Rule 1.12, Rules of the Supreme Court, 12 O.S. 2001 ch. 15, App.1. There is no documentation in the record to show that COCA granted amicus permission to file his brief and COCA's opinion makes no reference to that brief, In the absence of the required permission, consideration of the amicus brief on certiorari must be withheld.

      . Cooper v. State ex rel. Dep't. of Public Safety, 1996 OK 49, 110, 917 P.2d 466, 468.

      . Nealis v. Baird, 1999 OK 98, ¶55, 996 P.2d 438, 460; TXO Production Corp. v. Okla. Corp. Comm'n, 1992 OK 39, ¶7, 829 P.2d 964, 969.

      . Ross v. Peters, 1993 OK 8, ¶9, n. 17, 846 P.2d 1107, 1119, n. 17; TRW/Reda Pump v. Brewington, 1992 OK 31, ¶5, 829 P.2d 15, 20; Forston v. Heisler, 1961 OK 198, ¶11, 363 P.2d 949, 951.

      . Cooper, supra note 17 at ¶10, at 468; TXO, supra note 18 at ¶7, at 969; Cox v. Dawson, 1996 OK 11, ¶6, 911 P.2d 272, 276.

      . R.R. Tway, Inc. v. Okla. Tax Comm'n, 1995 OK 129, 126, 910 P.2d 972, 978; Bert Smith Road Mach. Co., Inc. v. Okla. Tax Comm'n, 1977 OK 75, ¶9, 563 P.2d 641, 643; Phillips Petroleum Co. v. Okla. Tax Comm'n, 1975 OK 146, ¶10, 542 P.2d 1303, 1305; Dairy Queen of Okla., Inc. v. Okla. Tax Comm'n, 1951 OK 356, ¶4, 238 P.2d 800, 801-02; Magnolia Petroleum Co. v. Okla. Tax Comm'n, 1958 OK 124, ¶20, 326 P.2d 821, 825; Forston v. Heisler, supra note 19 at ¶11, at 951.

      . Royalties paid to an inventor are ordinarily tied to the volume of sales of the manufactured product. See Black's Law Dictionary (5th ed.) at 1195 where royalty is defined as:
      "A payment which is made to ... an inventor in respect of each article sold under the patent. Royalty is share of product or profit reserved by owner for permitting another to use the property...."

      . Fairlawn Shopper, Inc. v. Director, Div. of Taxation, 98 N.J. 64, 484 A.2d 659, 665 (1984); Princeton Township. v. Tenacre Found., 69 N.J.Super. 559, 174 A.2d 601, 604 (App.Div.1961).

      . See 74 0.$.2001 § 5064.2. for a statement of the Legislature's purpose to provide assistance to inventors so that their activities might result in economic benefits to the state and nation.

      . Royalty is defined in The Random House College Dictionary (rev. ed.) at 1150 as:
      "[A] compensation or portion of the proceeds paid to the owner of a right, as a patent or oil or mineral right, for the use of it ... an agreed portion of the income from a work paid to its author, composer, etc., usually a percentage of the retail price of each copy sold ... a royal right, as over minerals, granted by a sovereign to a person or corporation ... the payment made such a right."

      . Haney v. State, 1993 OK 41, ¶12, 850 P.2d 1087, 1091; Magnolia Pipe Line Co. v. Okla. Tax Comm'n, 1946 OK 113, ¶ 11, 167 P.2d 884, 888.

      . See the provisions of 68 0.S.2001 § 2353.3., which state:
      "Any term used in Section 2351 et seq. of this title shall have the same meaning as when used in a comparable context in the Internal Revenue Code, unless a different meaning is clearly required."

      . Texas Farm Bureau v. United States, 53 F.3d 120, 123 (5th Cir.1995).

      . See Revenue Ruling 81-178. The Internal Revenue Service's interpretive rulings do not have the force and effect of regulations, but an agency's interpretations and practices are given considerable weight where they involve the contemporaneous construction of a statute and where they have been in long use. Davis v. United States, 495 U.S. 472, 484, 110 S.Ct. 2014, 2022, 109 L.Ed.2d 457 (1990); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933).

      . Comm'r of Int. Rev. v. Affiliated Enterprises, Inc., 123 F.2d 665, 668 (10th Cir.1941).

      . "In the construction of ... statutes, harmony, not confusion, is to be sought. The true rule has often been said to be that, where two acts or parts of acts are reasonably susceptible of a construction that will give effect to both and to the words of each, without violence to either, it should be adopted in preference to one which, though reasonable, leads to the conclusion that there is a conflict." Forston v. Heisler, 1959 OK 122, ¶10, 341 P.2d 252, 255, quoting Rogers v. Okla. Tax Comm'n, 1952 OK 388, ¶17, 263 P.2d 409, 412.


text:
    MAY, Appellant, v. The STATE of Oklahoma, Appellee.
    No. PC-75-763.
    Court of Criminal Appeals of Oklahoma.
    Jan. 21, 1976.
   ORDER AFFIRMING DENIAL OF POST CONVICTION RELIEF

Appellant, Paul May, was convicted of the crime of Murder in the Second Degree, in Case No. CRF-73-411 in the District Court, Comanche County. An appeal was perfected to this Court and his conviction was affirmed in May v. State, Okl. Cr., 532 P.2d 451.

Subsequently, appellant filed in the District Court an application for post conviction relief. Following an evidentiary hearing on November 18, 1975, the trial court denied appellant's application for post conviction relief. This appeal has been perfected from that order of the District Court. -

Appellant urges that the District Court erred in denying his application for these reasons:

"(a) That the Appellant's constitutional rights guaranteed by the Fourteenth and Fourth Amendments to the United States Constitution were violated when the Trial Court allowed illegally obtained evidence into Appellant's trial, when said evidence was obtained through an illegal search and seizure of Appellant's automobile.
"(b) In improper eross-examination of Appellant at the Trial Court as to other offenses alleged to have been committed by the Appellant and improper cross-examination at the Trial Court tending to show commission of another crime.
"(c) The abuse of discretion by the Trial Court in denying Post-Conviction Relief in light of new evidence of material facts not previously presented and heard that required vacation of the conviction or sentence in the interests of Justice."

The trial court below found that appellant was barred from raising in an application for post conviction relief either of the first two issues set out above for the reason that no objection was made at the time of trial and no assignment of error made on appeal in regard to either of those grounds. We agree. See, 22 O.S., § 1086.

In support of the contention that there exists new evidence of material facts that requires vacation of the conviction in the interest of justice, appellant called five witnesses at the evidentiary hearing held on November 18, 1975.

At the trial which resulted in May's convietion, the most significant testimony against him was that of his that he and Paul May went to the murder victim house intending to burglarize it. He testified that when the victim came home unexpectedly and surprised them inside the house. Paul May beat her first with a hoe handle and later with what appeared to be a log. His testimony was that the murder occurred some time around 7:00 p.m. At the evidentiary hearing on the application for post conviction relief, James McCracken testified that on the evening of the murder, he saw Paul May at the intersection of 38th Street and Cache Road in Lawton. McCracken was stopped at a red light at that intersection and he noticed a man whom he identified as Paul May standing beside a van with a flat tire. He remembered the incident because he had noticed that the van was jacked up and its position appeared to be precarious. He considered stopping to help, but decided against it. McCracken testified that it was approximately 6:00 p.m. when he saw Paul May at that intersection. (Tr. 14, 15) From the intersection of 38th Street and Cache Road, McCracken drove to the house of his brother-in-law, Ronnie Jones, a trip of approximately six miles. When McCracken arrived at his brother-in-law's house, Jones had just arrived home himself, and was pulling into his driveway. Ronnie Jones testified, at the evidentiary hearing, that his house was close to that of the murder victim's house, and that on the evening in question he had seen her taking packages from her automobile just a few moments before he arrived home. He remembered that James McCracken had arrived just as he was turning around in his driveway. Jones remembered the time of that incident to have been about 7:00 p.m. On the day following the murder, Jones reported seeing the victim alive at 7:00 pm. to the authorities, Mr. McCracken testified at the evidentiary hearing that he had told no one of his observation of Paul May because he had not realized the significance of it, not connecting in his mind the man he saw standing at the intersection whom he knew as "Sonny" with the Paul May who was on trial for murder.

Jerry Ashcraft, the daughter of Paul May's wife, was also called as a witness at the evidentiary hearing. On cross-examination she affirmed that she had testified at the time of trial that on the day of the murder her mother had picked her up at Medicine Park in the white van at approximately 6:00; that the two of them had returned at 6:80 to the store where they worked; that Paul May was there at 6:80 and that he remained there until they left together to go to a drive-in movie at 7:80.

Charles Patterson, Jr., testified at the evi-dentiary hearing that he is an inmate of the Oklahoma State penitentiary, and that he had been in the Comanche County jail at the same time as Marvin Earnest. He testified that Earnest told him that Paul May had not committed the murder. Ralph Carpenter also testified at the evidentiary hearing that he was an inmate at the correctional facility at Stringtown and that he was in the Comanche County jail at the same time as Marvin Earnest. He testified that Marvin Earnest told him that he intended to implicate Paul May in the murder but that he felt May could "beat it."

Appellant urges in essence that the evidence he presented at the hearing of November 18, 1975, so strongly requires vacation of the conviction that the trial court abused its discretion in denying post conviction relief.

We have repeatedly held that the test to be employed in passing on a motion for a new trial on the grounds of newly discovered evidence as provided for by 22 O.S8., § 952, is whether such evidence is material, whether the accused exercised due diligence to discover such evidence before trial, whether such evidence is merely cumulative, and whether there is a reasonable probability that, if such evidence had been produced at trial, it would have changed the result. See, Stevenson v. State, Okl. Cr., 497 P.2d 1114 (1972). We are of the opinion that the test is not different in passing upon an application for post convietion relief based upon the provisions of 22 O0.S., § 1080(d), namely, "that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice." The trial court in this case found that the evidence presented was insufficient to justify the vacation of the conviction because of certain inconsistencies in the testimony of James McCracken and because his testimony was in direct conflict with the evidence which the defense presented at trial.

We have carefully reviewed the transcript of evidence at the hearing of November 18, 1975, and conclude that we must affirm the finding of the District Court. The testimony of Pat Patterson and Ralph Carpenter is merely impeachment of testimony of Marvin Earnest. The testimony of Mr. McCracken, while material, is the result of a recollection had nearly a year after the incident. He consistently testified that he saw Paul May at the intersection at 6:00. (Tr. 14, 24, 25, 31,82,39) This testimony, even when coupled with that of Ronnie Jones who testified that he arrived home at 7:00, does not serve to clearly and definitely place Paul May somewhere other than the murder seene at the time of the killing. We agree with the finding of the District Court that such evidence does not necessitate that vacation of the conviction of Paul May in Case No. CRF-78-411.

IT IS THE ORDER of this Court that the denial of Post Conviction Relief appealed from be, and it hereby is, AFFIRMED.

/s/ Tom Brett TOM BRETT, Presiding Judge

/s/ Hez J. Bussey HEZ J. BUSSEY, Judge


author: DAVIS, Judge:

text:
    2003 UT App 228
    STATE of Utah, Plaintiff and Appellee, v. Randall LAW, Defendant and Appellant.
    No. 20020578-CA.
    Court of Appeals of Utah.
    July 3, 2003.

      Geoffrey L. Clark, Ogden, for Appellant.
    Mark L. Shurtleff, Attorney General, and Jeffrey S. Gray, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges DAVIS, ORME, and THORNE.
   MEMORANDUM DECISION

DAVIS, Judge:

T1 Randall Law (Defendant) raises two issues on appeal: (1) that illegal drug use by the sentencing judge, Ray Harding Jr. (Judge Harding) constituted an abuse of the trial court's discretion, a violation of the Defendant's due process rights, and a conflict of interest when he sentenced Defendant to consecutive sentences; and (2) that regardless of Judge Harding's drug use, he abused his discretion when he sentenced Defendant to consecutive sentences.

T2 "An appellate court's 'review is ... limited to the evidence contained in the record on appeal."" State v. Pliego, 1999 UT 8, ¶7, 974 P.2d 279 (citation omitted). "[All-though the record may be supplemented if anything material is omitted, it may not be done by simply including the omitted material in the party's addendum." Id. The record contains nothing regarding Judge Harding's illegal drug use during the period when Defendant was sentenced. Therefore, Defendant's attempt to supplement the record by including newspaper - articles - regarding Judge Harding's drug use in his briefs addenda is improper. See Utah R.App. P. 11(b) ("If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth."). Motions under rule 11(h) of the Utah Rules of Appellate Procedure are "appropriate only when the record must be augmented because of an omission or exelusion, or a dispute as to the accuracy of reporting, and not to introduce new material into the record." Olson v. Park-Craig-Olson, Inc., 815 P.2d 1356, 1359 (Utah Ct.App.1991) (emphasis added). Because the Defendant attempts to introduce evidence on appeal not contained within the record, we cannot consider this issue on appeal.

13 Additionally, there is nothing in the record suggesting Judge Harding was under the influence of any drug during any of Defendant's proceedings and, therefore, he cannot show if or how Judge Harding, by reason of drug use, abused his discretion; if or how Defendant's due process rights were violated; and if or how Judge Harding had a conflict of interest or personal bias that led to an excessive sentence.

«[ 4 Should Defendant believe that the sentencing judge was either impaired or unable to effectively discharge his duties in a constitutional manner, Defendant's proper avenue of relief lies in the Utah Rules of Criminal Procedure or the Utah Rules of Civil Procedure. -It is incumbent upon Defendant to ask the trial court to review the sentence, see State v. Brooks, 868 P.2d 818, 826 (Utah Ct.App.1994), aff'd, 908 P.2d 856 (Utah 1995), and only then, if the trial court either refuses to entertain his motion, or denies the motion after consideration, is relief through the appellate courts available to Defendant.

{5 Defendant next claims, that regardless of Judge Harding's drug use, he abused his discretion by sentencing Defendant to consecutive sentences. "We afford the trial court wide latitude in sentencing and, generally, 'will reverse a trial court's sentencing decision only if it is an abuse of the judge's discretion."" State v. Bluff, 2002 UT 66, ¶ 66, 52 P.3d 1210 (citation omitted). Trial courts abuse their discretion "when [they] fail[ ] to consider all legally relevant factors, or if the sentence imposed exceeds the limits prescribed by law." Id. Generally, a trial court's sentence " 'should be overturned only when it is inherently unfair or clearly excessive'" Id. (citation omitted).

16 Utah Code Ann. $ 76-3-401(5) (Supp. 2002) gives trial courts the discretion to "impose consecutive sentences for [felony] offenses arising out of a single criminal episode." When deciding whether to impose consecutive sentences, trial courts "consider the gravity and cireumstances of the offenses, the number of victims, and the history, character, and rehabilitative needs of the defendant." Id. § 76-38-4012).

In this case, Defendant pleaded guilty to

eleven counts of securities fraud, six see-ond degree felonies and five third degree felonies, ... eleven counts of transacting business as a broker-dealer or agent without a license, all third degree felonies, ... eleven counts of selling an unregistered security, all third degree felonies, and one. count of engaging in a pattern of unlawfal activity, a second degree felony.

Defendant argues that the imposition of consecutive sentences in his case was an abuse of the trial court's discretion because all of the felony counts were "white collar offenses" and no victims suffered any physical injury. We disagree. A review of the record illustrates the court "consider[ed] all legally relevant factors." Bluff, 2002 UT 66 at ¶ 66, 52 P.3d 1210. Defendant's schemes defrauded at least thirty victims of over $1 million. After his thirty-four pleas of guilty, but before his sentencing hearing, authorities in Utah County twice arrested Defendant on new charges of fraud. Furthermore, the ree-ord shows that Judge Harding considered all of the mitigating factors from Defendant's presentence investigation report. - Even though Judge Harding imposed consecutive sentences in Defendant's case, he cannot serve more than thirty years imprisonment. See Utah Code Ann. § 76-3-401(6)(a) ("If a court imposes consecutive sentences, the aggregate maximum of all sentences imposed may not exceed 30 years imprisonment. ..."). In light of Defendant's crimes, we cannot conclude "that 'no reasonable [person] would take the view adopted by the trial court," State v. Schweitzer, 943 P.2d 649, 651 (Utah Ct.App.1997) (alteration in original) (citation omitted), or that the imposition of consecutive sentences was " "inherently unfair or clearly excessive.'" Bluff, 2002 UT 66 at ¶66, 52 P.3d 1210 (citation omitted). We hold that the trial court did not abuse its discretion when it imposed consecutive sentences.

T8 We affirm Defendant's sentence and deny his request for a new sentencing hearing without prejudice to his properly pursuing his claims in the trial court.

19 WE CONCUR: GREGORY K. ORME and WILLIAM A. THORNE JR., Judges.

      . While Defendant's actions were "white collar" offenses that did not inflict physical injury, one victim summarized the impact of Defendant's crimes as follows:
      Just because of his [thirty-four] crimes that he pled [sic] guilty to were not done at gunpoint doesn't make them less of a crime. He chooses lies and deceits as his weapons. These weapons do create victims. People have lost homes. There have been divorces, bankruptcies, and a multitude of personal suffering that this man has created with his weapons of lies and deceit.


author: GREENWOOD, Judge: BENCH, Judge

text:
    2003 UT App 241
    Ellen ANDERSON, as personal representative of the Estate of D.C. Anderson; Dan Scott; Ellen Anderson, personally; and Jeanne Scott, Plaintiffs, Appellees, and Cross-Appellants, v. Eugene E. DOMS and Michael R. McCoy, Defendant, Appellant, and Cross-Appellee.
    No. 20010712-CA.
    Court of Appeals of Utah.
    July 10, 2003.
    Rehearing Denied Aug. 28, 2003.

      Larry R. Keller, Salt Lake City, for Appellant.
    Larry A. Kirkham, Sandy, for Appellee.
    Before BILLINGS, Associate P.J., BENCH, and GREENWOOD, JJ.
   OPINION

GREENWOOD, Judge:

1 Defendant Eugene Doms appeals from the trial court's Modified Judgment and Minute Entry. The trial court's ruling was based on this court's decision in Anderson v. Doms, 1999 UT App 207, 984 P.2d 392. On appeal, Doms argues the trial court erred when it refused to award him interest paid under a trust deed note. In response, Plaintiffs (collectively, Anderson) cross-appeal on several issues. We affirm in part and reverse in part.

BACKGROUND

T2 This is the third time this case has been before this court. The facts are described in detail in Anderson v. Doms, 1999 UT App 207, 984 P.2d 392 (Anderson II). We set forth only those facts pertinent to this appeal.

T3 Anderson, the seller of a parcel of property in Park City, Utah (the property), first filed suit in this matter in June 1985, after Doms stopped making scheduled payments owed to Anderson pursuant to the Trust Deed Note (the Note) securing payment of the purchase price for the property. Doms stopped payments as a result of a breach of contract by Anderson. After the trial court denied Doms's request to rescind the contract, both parties appealed on several grounds. This court issued a Memorandum Decigion in November 1994 remanding the case to the trial court for findings of fact regarding prejudice Anderson had suffered because of Doms's delay in seeking rescission. See Anderson v. Doms, No. 920653-CA, slip op. (Utah Ct.App. Nov. 4, 1994) (Anderson I1). The trial court again denied Doms's request for rescission and Doms appealed. In Anderson II, this court concluded "the trial court's findings do not show that plaintiffs were prejudiced," Amderson II, 1999 UT App 207 at ¶18, 984 P.2d 392, and stated, "the trial court should order rescission and determine an appropriate remedy in connection with rescinding the contract." Id. at ¶ 24.

{4 Accordingly, the trial court complied with Anderson II in its Modified Judgment and Minute Entry (Judgment) and ordered rescission of the contract. Because Doms was the successor in interest to MeCoy and Domeoy, the trial court held that he was entitled to payments made for the property, including the earnest money, the down payment, and taxes, all to accrue 10% interest from the date of the payments. However, Doms was denied recovery of interest-only payments made on the Note. Upon full payment to Doms, he was required to reconvey the property to Anderson.

15 In the current appeal, Doms argues that, in addition to the trial court's award, he should have been awarded his interest-only payments made on the Note. Anderson cross-appeals, arguing that rescission was an improper remedy and that the trial court erred in declining to award rental value to Anderson, awarding prejudgment interest, and failing to allocate the burdens among the Anderson Plaintiffs. Anderson also raises several other previously litigated issues.

ISSUES AND STANDARDS OF REVIEW

16 Doms argues that the trial court erred by denying him recovery of the interest-only payments made on the Note.

The goal of rescission is to restore the status quo that existed prior to the parties' agreement. ... "How [the status quo] is to be accomplished, or indeed whether it can, is a matter which is within the discretion of the trial court under the facts as found to exist by the trier of fact."

Ong Int'l (U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 457 (Utah 1993) (footnote omitted) (quoting Dugan v. Jones, 724 P.2d 955, 957 (Utah 1986)).

T7 On cross-appeal, Anderson argues the trial court erred when it denied him an award for fair rental value of the property during the period Doms was in possession. Because no evidence was presented, "[wlhether an issue was properly before the trial court" is reviewed as a question of law. Lee v. Sanders, 2002 UT App 281, ¶ 6, 55 P.3d 1127. A trial court may not speculate, but must base its decision on evidence presented by the parties. See id. at T 12 (finding trial court's determination improper where it had no evidence before it).

T8 Next, Anderson argues the trial court erred when it awarded Doms prejudgment interest. "The trial court's decision regarding entitlement to prejudgment interest is a question of law, which this court reviews for correctness. As such, we accord no deference to the trial court's decision." Lefavi v. Bertoch, 2000 UT App 5, ¶ 23 994 P.2d 817.

T9 Finally, Anderson argues several issues previously decided by this court. "Under the law of the case doctrine, issues resolved by this court on appeal bind the trial court on remand, and generally bind this court should the case return on appeal after remand." Gildea v. Guardian Title Co. of Utah, 2001 UT 75,¶ 9, 31 P.3d 543.

ANALYSIS

I. Rescission

«[ 10 Doms argues that the trial court failed on remand to correctly implement this court's decision in Anderson v. Doms, 1999 UT App 207, 984 P.2d 392 (Anderson II). In its Judgment the trial court ordered rescission, but denied Doms a return of interest-only payments made on the Note. Doms maintains that, pursuant to Anderson II and the remedy of rescission, he should have been awarded all payments made on the property, including the interest-only payments. In support of this argument he cites this court's statement, "[wle therefore remand this issue to the trial court for a determination and award to Doms of the net payments paid by him less rental value plus interest." Id. at 121 (footnote omitted).

T11 Rescission is a restitutionary remedy that attempts to return parties to the status quo. "The goal of rescission is to restore the status quo that existed prior to the parties' agreement. The status quo rule . 'is equitable, and requires practicality in adjusting the rights of the parties' " Ong Int'l (U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 457 (Utah 1998) (citation omitted); see also Breuer-Harrison, Inc. v. Combe, 799 P.2d 716, 731 (Utah Ct.App.1990) ("Rescission is a restitutionary remedy which attempts to restore the parties to the status quo to the extent possible or as demanded by the equities in the case."). Because of the equitable nature of rescission, there is not one precise formula that applies to all rescission cases. See Dugan v. Jones, 724 P.2d 955, 957 (Utah 1986) ("[The status quo 'is not a technical rule, but rather it is equitable" " (quoting Smith v. Huber, 666 P.2d 1122, 1124 (Colo.Ct.App.1983))).

{12 In this case, the trial court ordered rescission of the contract, but denied Doms a return of the interest-only payments. The trial court stated, "Payments made on the Trust Deed Note which were interest payments shall not be recoverable by Defendant Doms. ... The Court cannot see a legal basis for allowing this interest on the Trust Deed Note to be returned to Defendant Doms. ..."

113 Part of our inquiry, therefore, is determining if there is, in fact, a legal basis for the award of interest payments as part of a rescission judgment. At the hearing, the trial court stated that it was inclined to follow the reasoning in Libassi v. Chelli, 206 A.D.2d 509, 615 N.Y.S.2d 75 (N.Y.App.Div.1994), in which the New York court granted rescission but denied the buyers recovery of interest paid on their purchase money mortgage. See id. at T7. The trial court looked to other jurisdictions because no Utah cases are directly on point. Accordingly, we also look to cases from other jurisdictions.

{14 In Libassi, the court ordered rescission of a contract because of the buyers' admission to allegations of fraud. See id. at 76-77. The sellers alleged they were misled into believing that the buyers intended to build two single-family homes on the land, rather than the intended 42-unit housing development. See id. at 76. The sellers were "both the transferors of [the] property" and "the creditors of the buyers," who were purchase money mortgagees. Id. at T7. As part of the rescission remedy, the court held the terms of the loan should be enforced: "There is no reason in law or in equity why the terms of this loan should not be enforced." Id. As a result, the court did not allow the buyers to recover interest paid under the mortgage and ordered them to pay interest accrued but not paid. See id. at 76-77. The court did not specifically state that it was enforcing the loan because of the buyers' fraud, but did note that the buyers' fraud was "essential to the sellers' request for rescission." Id. at 77.

{15 In contrast, the sellers committed fraud in Putman Constr. & Realty Co. v. Byrd, 632 So.2d 961, 963 (Ala.1992), and the court therefore allowed the buyers to recover interest payments made to the seller pursuant to a promissory note. See id. at 968. The buyers in Putman requested rescission of a contract to purchase a multi-tenant office complex based on the sellers' fraud. See id. at 962-683. The court held that the most equitable result would be a reconveyance of the property, subject to buyers' mortgage. See id. at 968. Because the "buyers incurred . substantial out-of-pocket costs to finance a transaction that was born out of the sellers' fraud," the buyers were also entitled to recover these costs. Id. Therefore, the award included interest payments paid to the sellers. See id. This rescission remedy was explicitly based on the sellers' fraud. See id.

{16 In the case before this court, fraud was not alleged. Rather, rescission was requested based on the seller's breach of contract. In cases where rescission is based on the seller's breach, courts often consider both that the buyer may have received something of value through the possession or use of the property, and that the seller may have received something of value through the use of the buyer's money. "[Rlestitutionary ideas would suggest that [the buyer] would be required to 'restore' the value of ... possession by paying the vendor its rental value, and that he would be entitled in return to recover the money he has paid the vendor and interest on it." 3 Dan B. Dobbs, Law of Remedies § 12.11(2) (2d ed.1998). Several courts have applied this principle in rescission cases, offsetting the value of the use of the land against the value of the use of the money.

1 17 For instance, in Ohio Valley Trust Co. v. Allison, 243 Pa. 201, 89 A. 1132 (1914), the buyer requested rescission based on the seller's breach of contract. See id. at 1183. The land had been used to sell agricultural implements, grain, feed, and lumber, and some of the buildings on the land required improvements. See id. Rescission was granted by the trial court, but interest the buyer paid on the balance of the purchase money was not refunded. See id. at 1134. On appeal, the sellers argued that the judgment should have been reduced because the buyer occupied and used the property. See id.

[A] claim for the return of interest paid on the balance of the purchase money was refused by the trial judge upon the ground that the [buyer] could not have the use and occupancy of the property, and at the same time secure a return of the interest paid upon the purchase money. The one seems to have fairly balanced the other.

Id. The judgment was affirmed. See id.

18 Also, in Bechard v. Bolton, 316 Mich. 1, 24 N.W.2d 422 (1946), the buyers sought to rescind a contract to purchase land upon learning of defects in the title See id. at 422-28. Rescission was granted on appeal. See id. at 423. However, because "the [buyers] had the right of possession to the property from the date of the contract and have used it to a considerable extent," the court allowed an offset of the rental value of the property against the interest and taxes paid. Id.

1 19 Finally, in Potter v. Oster, 426 N.W.2d 148 (Iowa 1988), the buyers brought suit to rescind their contract with the seller, "claiming restitution damages for all consideration paid." Id. at 150. The seller was purchasing land under an installment contract, and sold a portion of that land to the buyer under a similar agreement. See id. at 149. The buyers made all their installment payments, including 8.5% interest, and paid the taxes and insurance. See id. at 149-50. They also improved the property, which they used as a residence and for farming. See id. at 150. When the seller defaulted in his payments to the original owner, the land, including the buyers' portion, was repossessed. See id. at 149-50.

(20 The trial court awarded the buyers rescission "and return of the consideration paid including principal and interest, cost of improvements, closing expenses, and taxes." Id. at 150. Six years' rent was deducted from this amount. See id. The appellate court upheld the ruling, holding that the goal of rescission-'"[rlestoring the status quo"-was met because the buyers were awarded "a sum representing all they had paid under the contract rendered worthless by [the seller's] default." Id. at 152.

{21 In most of the above cases, rental value, or use and occupation value, was offset by interest paid. The exception is Libassi v. Chelli, 206 A.D.2d 509, 615 N.Y.S.2d 75 (N.Y.App.Div.1994), where the buyers acted fraudulently. See id. at 76-77. However, in this case the trial court reasoned that just as a buyer who borrowed from a lending institution would be required to pay interest to that lending institution, so too should Doms be required to pay interest to Anderson where the Note obviated the need for a lending institution. Based on this reasoning, the trial court denied Doms a return of the interest-only payments made on the Note. However, this reasoning is not consistent with the majority of cases we have discussed, nor with Dobbs's treatise on remedies.

122 From these cases, we find particularly pertinent the observations that interest paid constitutes an "out-of-pocket cost[ ] to finance a transaction," Putman Constr. & Realty Co. v. Byrd, 682 So.2d 961, 968 (Ala.1992), and that interest is part of the "consideration paid." Potter, 426 NW.2d at 150. Thus, we glean from these sources the following legal principles: (1) the remedy of rescission includes recovery of interest paid; and (2) the interest paid may be offset by benefits accruing to the buyer or may be denied in whole or part on an equitable basis, such as fraud on the part of the buyer. As a result, the trial court's legal premise for denying recovery of interest is error. We recognize that rescission is an equitable remedy, subject to an abuse of discretion standard of review. However, given the goal of restoring the status quo, a deviation from that goal must be justified by the circumstances of the case.

23 Because no fraud was alleged in this case and there is no articulation of an equitable basis to deny recovery of interest, the trial court should have awarded Doms his interest-only payments on the Note. We find no facts nor findings in this case to justify otherwise. Moreover, as discussed below, if Doms had paid the entire purchase price to Anderson, he would have been entitled to prejudgment interest on that amount. The prejudgment interest would likely be roughly equivalent to the recovery of the interest-only payments,. We therefore conclude that the trial court exceeded its discretion in this regard and reverse this portion of the trial court's decision.

II. Anderson's Cross Appeal

A. Rental Value Offset

[ 24 On cross-appeal, Anderson argues the trial court erred when it refused to award him fair rental value of the property during the period Doms had possession and use of the property. As discussed above, in rescission cases courts frequently offset payments made by the buyer against the use or rental value of the property. Cf. Bellon v. Malnar, 808 P.2d 1089, 1096 (Utah 1991) (holding interest on the contract was allowed as alternative to fair rental value of property in forfeiture case).

125 In this case, the trial court's Judgment specifically states that it

finds the record is completely devoid of any basis for rental value for this raw ground which had never been used in any way by Defendant Doms. Therefore, the Court declines to reduce the Judgment in this case by any rental value, finding there is no fair rental value to be placed upon the property.

Where no evidence is presented, a trial court may not speculate, but must base its decision on evidence presented by the parties. See Lee v. Sanders, 2002 UT App 281, ¶ 12, 55 P.3d 1127 (finding trial court's determination improper where it had no evidence before it).

126 Further, an offset was clearly inappropriate in this case. Other courts have refused an offset in rescission cases where nothing of value was received or there was no evidence of value. See Metcalfe v. Talarski, 213 Conn. 145, 567 A.2d 1148, 1152-58 (1989) (holding there is no implied legal right to compensation for rent or use and occupancy in rescission case where rescinding party received nothing of value through use or occupation); Hyler v. Garner, 548 N.W.2d 864, 874 (Iowa 1996) (holding buyers entitled to rescission of contract, although trial court did not err when it refused a deduction for plaintiffs use of property because "no evidence in the record ... would permit the trial court to calculate such a deduction"); Kracl v. Loseke, 236 Neb. 290, 461 N.W.2d 67, 77 (1990) (stating "a court must be presented with relevant evidence which establishes the fair rental value of the premises" before an offset will be allowed). In this case, Anderson did not offer any evidence to demonstrate that the unimproved land had any use or occupation value. Indeed, Doms never used or occupied the land. While Anderson may have been able to demonstrate that the land had rental value, perhaps as a campground or a vegetable garden, he did not attempt to do so, Therefore, he cannot now complain that the trial court erred when it did not find the land had a rental value. We uphold the trial court's ruling that the land had no rental value, and therefore no offset was appropriate.

B. Prejudgment Interest

27 Anderson also maintains that the trial court erred when it awarded Doms prejudgment interest on the earnest money, down payment, and taxes. "The trial court's decision regarding entitlement to prejudgment interest is a question of law, which this court reviews for correctness. As such, we accord no deference to the trial court's decision." Lefavi v. Bertoch, 2000 UT App 5, ¶ 23, 994 P.2d 817. The trial court awarded prejudgment interest at 10% from the date payments were made.

128 This court has held, "A prejudgment interest award is proper when 'the damage is complete, the loss can be measured by the facts and figures, and the amount of loss is fixed as of a particular time' " Id. at 124 (citation omitted). In this case, the amounts paid were fixed and recorded by the parties and, therefore, are not uncertain or ascertainable only by a fact finder. Accordingly, we affirm the trial court's award of prejudgment interest.

C. Law of the Case

129 Anderson argues numerous other issues in his cross-appeal, many of which have already been litigated and decided by this court. "Under the law of the case doe-trine, issues resolved by this court on appeal bind the trial court on remand, and generally bind this court should the case return on appeal after remand." Gildea v. Guardian Title Co. of Utah, 2001 UT 75, ¶9, 31 P.3d 543. The Utah Supreme Court has stated that, among other things, "[the doctrine was developed ... 'to avoid the delays and difficulties involved in repetitious contentions and reconsideration of rulings on matters previ- © ously decided in the same case" " Id. (quoting Thurston v. Box Elder County, 892 P.2d 1034, 1037 (Utah 1995)). Therefore, under the law of the case doctrine, we decline to consider Anderson's other arguments which have all been decided by former appeals in this case.

CONCLUSION

130 We reverse the trial court's refusal to award Doms interest-only payments made on the Trust Deed Note. A review of the case law reveals that interest may be recoverable absent fraud by the buyer. In order to return the parties in this case to the status quo-the goal of rescission-interest-only payments made on the Note should be returned to Doms.

1 31 We affirm the trial court's decision to deny Anderson an award for the fair rental value of the property during the period Doms was in possession. Because Anderson failed to present evidence demonstrating that the unimproved land had any use or occupation value, the trial court's finding was not error. The trial court's award to Doms of prejudgment interest on the award was also not error. Finally, based on the law of the case doctrine, we decline to consider other issues raised by Anderson on cross-appeal, as these issues have been litigated and decided.

32 I CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge.

BENCH, Judge

(concurring and dissenting):

133 I dissented in our earlier decision in Anderson v. Doms, 1999 UT App 207, 984 P.2d 392 (Anderson II). In Anderson II, I would have affirmed the trial court's determination that laches barred the remedy of rescission. Largely because I lost that battle, I concur with the main opinion's treatment of Anderson's cross-appeal.

134 I respectfully dissent, however, from the main opinion's ruling on Doms's appeal. When Anderson II was remanded, the trial court dutifully ordered rescission, but denied Doms recovery of the interest-only payments made from 1982 through 1984 on the Trust Deed Note. I would affirm that decision as being within the trial court's broad discretion to implement the equitable remedy of rescission.

185 The main opinion cites cases from other jurisdictions in constructing its technical rule that "the remedy of rescission includes recovery of interest paid," which can be denied only where the buyer is involved in something like fraud. I am not certain whether that is the rule in other jurisdictions. But I do know that there has never been any such limitation on the trial court's discretion in Utah. Utah's approach to the remedy of rescission was very carefully articulated in Ong International (U.S.A.) Inc. v. 11th Avenue Corp., 850 P.2d 447, 457 (Utah 1993) as follows:

At trial, plaintiffs elected the remedy of rescission. The goal of rescission is to restore the status quo that existed prior to the parties' agreement. The status quo rule "is not a technical rule, but rather it is equitable, and requires practicality in adjusting the rights of the parties. How this is to be accomplished, or indeed whether it can, is a matter which is within the discretion of the trial court under the facts as found to exist by the trier of fact." The trial court therefore has discretion to fashion an adequate and reasonable remedy so that an aggrieved party is adequately compensated for its loss, so long as that remedy is not duplicative.

Id. (citations omitted).

136 An example of Utah's approach is found in Dugan v. Jones, 724 P.2d 955 (Utah 1986), In Dugan, the trial court "disallowed [the] defendants interest on payments made on the purchase price for the period before rescission on the expressly stated ground that [the] defendants had the use and possession of the property." Id. at 957. Our supreme court considered this remedy and concluded that it was "eminently fair and equitable," given the trial court's discretion. Id.

137 In ordering rescission of the 1982 contract in the present case, I believe the trial court properly exercised its "discretion to fashion an adequate and reasonable remedy." Ong International, 850 P.2d at 457. Particularly because of the lengthy passage of time, and because Doms had the exclusive use and possession of the property, it was within the trial court's discretion to decide " 'Thlow [status quo] is to be accomplished, or indeed whether it can' " Id. (quoting Dugon, 724 P.2d at 957). I would therefore affirm the judgment of the trial court in its entirety. Alternatively, this case should be remanded so the trial court can apply the new standard here announced for the first time.

      . Doms and Michael McCoy were the original purchasers of the property. Domcoy, a company formed by Doms and McCoy, also had an interest in the property for a period of time.

      . The Warranty Deed executed by Anderson included a warranty against encroachments. This warranty was breached by the existence of several encroachments and easements on the property.

      . Before the trial court considered the case on remand, Anderson filed a petition for rehearing in August 1999, which this court denied. Anderson then filed a petition to the Utah Supreme Court for certiorari, which was denied in January 2000.

      . The Note required monthly interest payments through January 10, 1985, at which time the entire principal and interest were due.

      . In Ohio Valley Trust Co. v. Allison, 243 Pa. 201, 89 A. 1132 (1914), the offset was allowed despite no evidence having been offered to establish the value of the property's use. As stated later in this opinion, we treat a similar lack of evidence differently.

      . Under Utah Code Annotated section 15-1-1(2) (2001), 10% is the applicable legal rate of interest.

      . One of Anderson's arguments is that the trial court erred by not allocating the burdens among the Plaintiffs under the ordered rescission. Anderson cites no authority for this position. A similar argument was made in Puskar v. Hughes, 179 Ill.App.3d 522, 127 Ill.Dec. 880, 533 N.E.2d 962 (1989). Rescission was granted, and the plaintiffs maintained the court should have allocated the rights of the various parties. See id. 127 Ill.Dec. 880, 533 N.E.2d at 966. The court stated, ''Plaintiffs have cited no authority for this proposition and it is without merit.... [Als between the parties, upon rescission plaintiffs must return all consideration under the contract .... We express no opinion as to the relative rights as between [the parties]. ..." Id. Similarly, the trial court in this case was not required to allocate the burdens.

      . The law of the case doctrine generally will be enforced unless "there has been an intervening change of controlling authority, ... new evidence has become available, or ... this court's prior decision was clearly erroneous and would work a manifest injustice." Gildea v. Guardian Title Co. of Utah, 2001 UT 75,¶ 10, 31 P.3d 543. None of these circumstances applies in this case.

      . The trial court awarded Doms the $10,000 earnest money, the $72,500 down payment, the taxes he had paid on the property, and prejudgment interest. On appeal, Doms seeks to add to that an award for $72,520 in interest-only payments made on the Trust Deed Note. He also claims he is entitled to over 20 years of interest on that sum of "well over $400,000."