author: DURHAM, Chief Justice:

text:
    2003 UT 27
    Michael F. NYMAN, Plaintiff and Appellee, v. ANCHOR DEVELOPMENT, L.L.C., Donald R. Simon and Kathleen J. Simon, Richard N. Miller, and all other persons unknown, Defendants and Appellants.
    No. 20020077.
    Supreme Court of Utah.
    June 13, 2003.

      Robert W. Adkins, Coalville, for plaintiff.
    John R. Lehmer, Park City, Kimberly D. Washburn, Draper, Robert M. Felton, Salt Lake, for defendants.
   DURHAM, Chief Justice:

T1 The sliver of property at issue here is that part of Lot 17, Block 76, Millsite Reservation to Park City, Utah, that is occupied by a garage. Plaintiff, Michael Fred Nyman (Nyman), claims rights to this property through the doctrines of adverse possession and prescriptive easement. Nyman appeals from the trial court's grant of summary judgment to defendant, Richard N. Miller (Miller), the holder of record title to the property, and the trial court's order quieting title to the property in Miller.

BACKGROUND

2 The two parties, Nyman and Miller, are record title holders of adjoining Park City properties. The property in this area is divided into twenty-five by seventy-five foot lots. Miller is the record title holder of Lot 17 of Block 76 while Nyman holds title to Lots 18 and 19. Miller's chain of title is as follows: Patent from the United States to Nims, April 1877; to Mason and Davis by quitclaim deed, April 4, 1877; to Thomas W. Ferry by quitclaim deed, November 22, 1879; to Edward P. Ferry by deed, July 9, 1880; to David McLaughlin by deed, December 22, 1882; to Summit County by tax sale, 1911; to W.I. Snyder, Trustee of Park City Town-site Company, by quitclaim deed, June 20, 1916; to Summit County by tax sale, December 21, 1985; to United Park City Mines Company by quitclaim deed, December 7, 1959; to Greater Park City Company by special warranty deed, June 11, 1971; to Ramshire, Inc., by special warranty deed, June 12, 1975; to Harry F. Reed et ux and Richard N. Miller et ux by special warranty deed, December 5, 1975; to Patricia K. Miller by quitclaim deed, September 2, 1977; to Richard N. Miller by quitclaim deed, May 29, 1998.

T3 Nyman's predecessor in interest acquired his property by quitclaim tax deed from Summit County, April 9, 1987. The deed referred to the property conveyed as a "Lot on Block 76, Park City, Utah," which Summit County had acquired from John Backman in a tax sale in 1980. The Back-mans had acquired this property through two deeds. First, in 1906, they acquired property described as a dwelling house "together with all out buildings and improvements belonging to said dwelling and sufficient space around the same for the convenient use and occupation thereof." Second, on May 15, 1916, they acquired property including Lots 18 and 19 "according to possession" by special warranty deed from W.I. Snyder.

'I 4 Tax records indicate that no taxes were assessed against Lot 17 between 1942 and 1959, when Summit County held the title. From 1960 to the present, Miller and his predecessors in interest paid taxes assessed against Lot 17. Nyman and his predecessors in interest have paid taxes on their property, including improvements, since 1987.

{5 Since at least 1948, Nyman and his predecessors have paid taxes on a garage, including the part of the garage that occupies the portion of Lot 17 at issue here.

T6 Nyman initiated this action in Summit County district court, asserting his right to quiet title to the disputed property, or in the alternative, to a prescriptive easement. The trial court granted Miller's motion for summary judgment on Nyman's claim and for an order quieting title in Miller.

STANDARD OF REVIEW

17 "A trial court may properly grant summary judgment when 'there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law'" WebBank v. Am. Gen. Annuity Serv. Corp., 2002 UT 88, ¶ 10, 54 P.3d 1139 (quoting Utah R. Civ. P. 56(c). When determining the propriety of a trial court's grant of summary judgment, "we review the trial court's legal conclusions for correctness, affording those legal conclusions no deference." Ault v. Holden, 2002 UT 33, 115, 44 P.3d 781. Additionally, " 'we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party'" Id. (quoting DCM Inv. Corp. v. Pinecrest Inv. Co., 2001 UT 91, ¶ 6, 34 P.3d 785).

ANALYSIS

18 Nyman asserts that the trial court erred by rejecting his claim to have acquired title to the disputed portion of Lot 17 through adverse possession, or, in the alternative, to a right to maintain his garage on the property through a prescriptive easement. We address each of these assertions in turn. -

I. ADVERSE POSSESSION

19 It is undisputed that Miller holds ree-ord title to all of Lot 17. Under Utah law, Miller is therefore "presumed to have been" in possession of Lot 17, and Nyman's "occupation of the property ... shall be deemed to have been under and in subordination to the legal title, unless it appears that" Nyman held and possessed the property "adversely to such legal title for seven years." Utah Code Ann. § 78-12-7 (2002). Nyman asserts that he has overcome this presumption for that part of Lot 17 underlying his garage through adverse possession of the land during the twenty-four year period, between 1985 and 1959, when Summit County owned Lot 17.

T10 Because Nyman claims adverse possession of county-held land, we must first determine whether his claim is allowed under section 78-12-18 of the Utah Code, which states:

No person shall be allowed to acquire any right or title in or to any lands held by any town, city or county, or the corporate authorities thereof, designated for public use as streets, lanes, avenues, alleys, parks or public squares, or for any other public purpose, by adverse possession thereof for any length of time whatsoever, unless it shall affirmatively appear that such town or city or county or the corporate authorities thereof have sold, or otherwise disposed of, and conveyed such real estate to a purchaser for a valuable consideration, and that for more than seven years subsequent to such conveyance the purchaser, his grantees or successors in interest, have been in the exclusive, continuous and adverse possession of such real estate; in which case an adverse title may be acquired.

Utah Code Ann. § 78-12-18 (2002). Such restrictions on adverse possession claims against states or their political subdivisions stem from the "ancient doctrine" of nullum tempus occurrit regi, or "time does not run against the king." Devins v. Borough of Bogota, 124 N.J. 570, 592 A.2d 199, 201-02 (1991) (explaining the doctrine's rationale that "the king was too busy protecting the interests of his people to keep track of his lands and to bring suits to protect them in a timely fashion").

{11 Utah's statute, like those in a number of other states, limits the restriction to situations in which the political subdivision has designated the land at issue for some public purpose. Nyman argues that Summit County was not holding the disputed portion of Lot 17 for any public purpose because the land was used for a privately-owned garage. Miller argues in opposition, however, that Summit County's 1985 acquisition of Lot 17 in a tax sale resulting from the former title holder's nonpayment of taxes did serve the public purpose of collecting taxes.

¶ 12 This case therefore raises a novel issue before this court-whether a county's acquisition of property for nonpayment of taxes should be considered a public purpose within the meaning of section 78-12, 13. Although some states have held that such tax takings do not remove land from claims of adverse possession, we follow the majority of states that hold that "[aldverse possession does not lie against land held by the county in connection with a tax sale." Fred E. Young, Inc. v. Brush Mountain Sportsmen's Ass'n, 697 A.2d 984, 992 (Pa.Super.Ct.1997); accord Bigler v. Graham County, 128 Ariz. 474, 626 P.2d 1106, 1108 (Ct.App.1981); Town of Sandwich v. Quirk, 409 Mass. 380, 566 N.E.2d 614, 617 (1991); Winstead v. Winstead, 204 Miss. 787, 38 So.2d 118, 119 (1948); Kellison v. McIsaac, 131 N.H. 675, 559 A.2d 834, 837 (1989); City of Edmonds v. Williams, 54 Wash.App. 632, 774 P.2d 1241, 1243 (1989). A county, "in taking title to property for non-payment of taxes, acts solely in aid of the taxing authorities in collecting taxes against the property and for that purpose takes title to the property in its governmental capacity and not as a proprietor." Bigler, 626 P.2d at 1108. The county's purpose in acquiring and holding the property is thus the public purpose of safeguarding public revenues. We therefore hold that Nyman's claim to have established adverse possession against Summit County is subject to Utah Code section 78-12-13 and thus fails unless it "affirmatively appear[s]" that the county "sold, or otherwise disposed of, and conveyed" the disputed portion of Lot 17 to Nyman or his predecessors in interest. Utah Code Ann. § 78-12-18.

¶ 13 Nyman asserts that Summit County did in fact convey the disputed portion of Lot 17 to Nyman's predecessor in interest Emil Nyman when it sold Emil Ny-man the former Backman property. Nyman bases this argument on Utah Code section 59-2-1325, which states "[a] tax due upon improvements upon real property assessed to a person other than the owner of the real property is a lien upon the property and improvements." Utah Code Ann. § 59-2-1325 (2000). Under Nyman's theory, when the Backmans failed to pay taxes on their land, they also failed to pay taxes on improvements, including the garage. Although the Backmans did not own the property underlying the garage, Summit County acquired this property through its tax lien against the garage and subsequently conveyed both the garage and its underlying land to Nyman's predecessor in interest.

¶ 14 We need not decide whether Nyman's interpretation of section 59-2-1825 is valid. His argument fails because, according to appraisal cards, the garage as it now stands was not built until 1948. Thus, Nyman did not show that the garage was present in 1980, when Summit County acquired the Backman property through a tax sale, or in 19837, when it sold the Backman property to Nyman's predecessor in interest. It is of course possible, as Nyman argues, that other structures stood on the same location before 1948 and that the perimeter of what became Nyman's property was established before that time. However, Nyman cannot overcome the presumption in favor of the legal title holder through mere speculation. We cannot conclude that it "affirmatively appears" that Summit County conveyed the disputed portion of Lot 17 to Emil Nyman. We therefore hold that Nyman cannot establish adverse possession over the disputed portion of Lot 17 while Summit County held legal title to the lot.

115 Nyman further asserts that he can establish adverse possession over the disputed land after Summit County's 1959 quitclaim deed conveyed title of Lot 17 to United Park City Mines Company, Miller's predecessor in interest. Nyman's primary argument is that Miller never received legal title to the portion of Lot 17 underlying Nyman's garage because, at the time of the 1959 conveyance, the disputed land had already been conveyed to Emil Nyman. We have already rejected the latter assertion as mere speculation. Thus, we must also reject Nyman's argument that the disputed portion of Lot 17 was legally severed from the remainder of the lot.

¶ 16 The severance argument also underlies Nyman's contention that the property taxes paid by Miller and his predecessors in interest on Lot 17 since 1959 were not taxes on the disputed portion of the lot. A party seeking to establish title by adverse possession has the burden of showing that he and his predecessors in interest have paid "all taxes which have been levied and assessed upon such land according to law." Utah Code Ann. § 78-12-12; see Marchant v. Park City, 788 P.2d 520, 523-24 (Utah 1990). Because nothing in the record shows that the disputed portion of Lot 17 was conveyed to Emil Nyman, we conclude that the taxes paid by Miller on Lot 17 covered the entire lot. Thus, Nyman cannot succeed in establishing adverse possession even after Lot 17 was no longer owned by Summit County. We therefore affirm the trial court's grant of summary judgment on this issue to Miller.

II. PRESCRIPTIVE EASEMENT

¶ 17 The trial court also rejected Ny-man's alternative argument that even if he is not entitled to adverse possession of the disputed portion of Lot 17, he has a right to a prescriptive easement allowing him to continue to use the property for his garage. The trial court held that Nyman's claimed right could not be construed as an easement because it would leave Miller, the holder 'of record title, with no rights at all in the disputed property. Nyman argues that the trial court erred by granting summary judgment to Miller on this issue.

¶ 18 "A prescriptive easement is created when the party claiming the prescriptive easement can prove that 'use of another's land was open, continuous, and adverse under a claim of right for a period of twenty years'" Orton v. Carter, 970 P.2d 1254, 1258 (Utah 1998). Here, the term "use" implies an inherent distinction in the property rights conferred by an easement, on the one hand, and outright ownership, on the other. "A prescriptive easement does not result in ownership, but allows only use of property belonging to another for a limited purpose." - Marchant v. Park City, 771 P.2d 677, 681 (Utah Ct.App.1989), aff'd, 788 P.2d 520 (Utah 1990). Thus, we have previously observed that:

Whenever there is ownership of property subject to an easement there is a dichotomy of interests, both of which must be respected and kept in balance. On the one hand, it is to be realized that the owner of the fee title, because of his general ownership, should have the use and enjoyment of his property to the highest degree possible, not inconsistent with the easement. On the other, the owner of the easement should likewise have the right to use and enjoy his easement to the fullest extent possible not inconsistent with the rights of the fee owner.

N. Union Canal Co. v. Newell, 550 P.2d 178, 179 (Utah 1976). Maintaining such a balance between the rights of the fee title owner and a purported easement holder becomes impossible where the latter asserts a right to permanent exclusive occupancy of the fee title owner's land. We conclude that the right to keep a garage on another's property falls outside the seope of a prescriptive easement, and therefore the latter is simply unavailable to Nyman as an alternative in this case. Indeed, we know of no prior Utah case recognizing a prescriptive easement right to maintain a permanent structure on someone else's property. Nyman argues that his use of the disputed portion of Lot 17 for a garage does not deprive Miller of all use and enjoyment of the land because Miller would still be able to claim the disputed portion as part of his square footage "for development purposes." We do not believe that this ability is sufficient to allow Miller a genuine use and enjoyment of the property. Nyman also argues that the portion of Lot 17 occupied by his garage is simply insignificant because it is so small. We believe, however, that the garage's intrusion onto Lot 17 is not so small as to be truly inconsequential. We therefore hold that Nyman is not entitled to a prescriptive easement because the property right that he claims would effectively deprive Miller of all rights to which, as record owner, he is entitled.

CONCLUSION

We affirm the trial court's grant of summary judgment to the defendant Miller and its order quieting title in Miller to Lot 17 in its entirety.

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

1 20 Having recused himself, Justice RUS-SON does not participate herein; Third District Judge RONALD E. NEHRING sat.

      . Although the original action was brought against a number of defendants, we are concerned here only with the dispute between Ny-man and Miller. On June 22, 1998, Miller was substituted as a defendant in place of his ex-wife who no longer had any claim to the disputed property.

      . See, eg., Goldman v. Quadrato, 142 Conn. 398, 114 A.2d 687, 690 (1955) (affirming an adverse possession judgment where the city had acquired the disputed lot through foreclosure of a tax lien but had left the lot "legally fallow, a vacant parcel of land," "neither used for nor dedicated to any public purpose"); Devins, 592 A.2d at 200, 203-04 (holding that an adverse possession claim could be brought against a borough that had acquired title to the disputed property through foreclosure when the property was not currently "dedicated to or used for a public purpose," but inviting the state legislature to revisit the issue); Casini v. Sea Gate Ass'n, 262 A.D.2d 593, 692 N.Y.S.2d 676, 678 (N.Y.1999) (holding that an adverse possession claim was not barred, even though the city had acquired title to the property through a tax lien, because the city had never "formally dedicated the property for a public use" and a city regulation limited the presumption that property acquired through foreclosure be deemed to be held for public use to three years after the date of foreclosure).

      . Nyman argues that Summit County did not start keeping records of the improvements subjected to tax until 1948, suggesting that the garage may have been present before 1948 even though it did not appear on appraisal cards. However, Nyman provides no evidence for this assertion, and the appraisal cards that do mention the garage specifically state it was built in 1948.

      . Nyman points out that, according to a survey of Nyman's property, a section of a stone retaining wall is the only improvement that currently lies on Lots 18 and 19. Trustee W.L. Snyder conveyed Lots 18 and 19 "according to possession" to the Backmans on May 15, 1916. Conceivably, the deed designated the wrong lot numbers as conveyed to the Backmans. However, on May 15, 1916, the date of Snyder's conveyance to the Backmans, Summit County held legal title to Lot 17. Certainly, Snyder's conveyance "according to possession" could not have included land that Snyder himself did not own.

      . In Edgell v. Canning, 1999 UT 21, ¶ 8, 976 P.2d 1193, this court considered a plaintiff's claim of "an easement over that part of defendants' property where [plaintiff's] improvements encroach." However, we rejected the claim on other grounds. Id. at 110; see also Marchant v. Park City, 788 P.2d 520, 524 (Utah 1990) (rejecting plaintiff's claim of an easement on property where defendant had permitted plaintiff's predecessor to build a house).


source: Caselaw Access Project

license: Public Domain

text:
    2003 UT 28
    WOODBURY AMSOURCE, INC., Plaintiffs and Appellants, v. SALT LAKE COUNTY, Defendants and Appellees.
    No. 20010939.
    Supreme Court of Utah.
    June 27, 2003.

      Mark K. Buchi, Greggory J. Savage, Steven P. Young, Salt Lake City, for plaintiff.
    David E. Yocom, Mary Ellen Sloan, Bill Thomas Peters, Salt Lake City, for defendant.
   DURHAM, Chief Justice:

{1 Appellants, a group of commercial property owners and landlords (the Landlords), appeal the trial court's grant of summary judgment to appellees, Salt Lake County, the Salt Lake County Board of County Commissioners, and the Salt Lake County Treasurer (collectively, the county).

BACKGROUND

([ 2 Before it was revised in 1999, the Utah State Tax Commission rule governing taxation of leasehold improvements provided that "[Heasehold improvements under the control of the lessee shall be taxed as personal property of the lessee." Utah Admin. Code R884-24P-32P (1999) (revised 1999, effective Jan. 1, 2000). The rule also stated that any value of leasehold improvements not taxed as personal property of the lessee "shall be included in the value of the real property," on which the landlord paid real property taxes. See id. In practice, this rule was implemented by the personal property division of the County Assessor's office, which collected affidavits from tenants regarding the leasehold improvements under their control and collected taxes from the tenants for these improvements. The assessor used the cost approach in valuing the leasehold improvements. According to the county, the real property division assessed real property independently of the valuation of leasehold improvements, typically using actual lease rates to value the property using the income approach.

13 On November 30, 1999, the Landlords filed a letter with the county as well as a complaint in district court requesting property tax refunds for the years 1994 to 1999 under section 59-2-1321 of the Utah Code Ann. § 59-2-1821 (2000). Landlords alleged that the county erroneously assessed a double tax on tenant-owned improvements to the Landlords's property by imposing a personal property tax on the tenants for these leasehold improvements while also imposing real property taxes on landlords for the entire value of their property, including the value of the leasehold improvements. After the county's initial motion to dismiss was denied, it filed a motion for summary judgment on February 28, 2001. The Landlords opposed the motion and filed a motion for a rule 56(F) continuance to allow the Landlords to continue discovery of county tax records. Following a hearing, the trial court denied the Landlords' 56(f) motion and granted summary judgment to the county. The trial court held that section 59-2-1821 did not apply to the Landlords' claim because the claim essentially alleged an incorrect valuation of the Landlords' property rather than a double, erroneous, or illegal assessment of tax entitled to a refund. Accordingly, the court held, the Landlords' claim was governed by section 59-2-1004, which requires a claimant to file an application with the County Board of Equalization to appeal valuation within thirty days of the county auditor's mailing of the valuation notice. Utah Code Ann. § 59-2-1004(1)(a). Because the Landlords had failed to follow section 59-2-1004's requirements and the period for doing so had expired, the court dismissed the Landlords claim for lack of jurisdiction. The Landlords appealed to this court.

STANDARD OF REVIEW

¶ 4 We review the district court's summary judgment ruling for correctness, granting no deference to its legal conclusions. Arnold Indus., Inc. v. Love, 2002 UT 133, 63 P.3d 721; Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002 UT 94, ¶ 11, 54 P.3d 1177. In reviewing a summary judgment decision pursuant to Rule 56(c) of the Utah Rules of Civil Procedure, we consider whether the trial court correctly concluded that no genuine issue of material fact exists and whether it correctly applied the law. Lovendahl v. Jordan Sch. Dist., 2002 UT 130, ¶ 13, 63 P.3d 705; Utah R. Civ. P. 56(c). A determination of whether the county's valuation of the Landlords' property constitutes double, erroneous, or illegal taxation under Utah Code section 59-2-1821 is a matter of law, which we review for correctness. Furthermore, "[wle view the facts and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party." Arnold Indus., Inc. v. Love, 2002 UT 133 at ¶ 11, 63 P.3d 721.

ANALYSIS

T5 The issue on appeal is whether the Landlords assertion that the County Assessor's appraisal practices resulted in double taxation of leasehold improvements states a claim under Utah Code section 59-2-1821, which allows refunds of taxes "paid more than once, or erroneously or illegally collected." The Landlords argue that during the 1990s it was common practice for counties to tax tenants for leasehold improvements under the Tax Commission (commission) rule while also taxing the Landlords for the same improvements by failing to account for their value in the total value of the Landlords' real property. As evidence for its argument, the Landlords point to four Board of Equalization (board) decisions and three commission decisions where the administrative decision-maker deducted an amount for leasehold improvements when determining the correct valuation of a landlord's property. In all of these cases, the landlord originally filed an appeal with the board under section 59-2-1004.

1 6 In addition, the Landlords point to the commission's 1999 rule change, which became effective in 2000 and now requires that "the value of leasehold improvements ... be included in the value of the underlying real property and assessed to the owner of the underlying real property." See Utah Admin. Code R884-24-32P (2000). The commission indicated in its Notice of Proposed Rule that "[the intent of this amendment is also to reduce and eliminate the double assessment of leasehold improvements and to increase administrative consistency." Utah Bull., Apr. 15, 1999, at 61.

T7 The Landlords' position, therefore, is that taxes on leasehold improvements were "paid more than once" during the period 1994-1999 and are therefore subject to refund under section 59-2-1821. The Landlords also assert that taxes on the leasehold improvements were "erroneously or illegally collected" because under the Utah Constitution, article XIII, Section 2(l), it is illegal to assess property taxes against a nonowner of the property. The Landlords concede that if they were challenging the county's valuation of their property, they would be required to raise their claim with the board under Utah Code section 59-2-1004. - However, the Landlords assert that there is no valuation issue because once it is settled that the county's procedures resulted in taxing leasehold improvements twice, it will only be necessary to subtract the value of the leasehold improvements from the value of the Landlords' real property in order to determine the proper refund amount.

¶ 8 In response, the county argues that section 59-2-1821 is a limited vehicle through which a taxpayer may seek a refund only when the county has collected a tax due to a mistake that is clear or apparent from county records. According to the county, the Land-lordg' claim is one of erroneous property valuation rather than double, erroneous, or illegal tax collection, and the Landlords therefore should have brought this claim before the board under section 59-2-1004. The county further asserts that its application of the income approach to assess the value of commercial buildings, using what it believes to be the actual lease rates for the property, results in a property valuation that captures only the owner's interest and not the value of leasehold improvements. This is because the tenant would not be paying rent on the improvements that the tenant owns. According to the county, in order for the leasehold improvements to have been taxed twice, the county would have had to add the value of the leasehold improvements, as determined by the Personal Property Division, to the value of the Landlords' real property. Since there is no indication that such a calculation occurred, the county asserts, the Landlords cannot establish double taxation.

T9 At common law, "taxes when paid could not be recovered back unless paid under what amounted to duress or legal compulsion." Neilson v. San Pete County, 40 Utah 560, 571, 123 P. 334, 338 (Utah 1912). A taxpayer who paid a tax voluntarily, in other words, could not receive a refund of the tax under any cireumstances, even when the taxing authorities had committed blatant error. Because this rule was "found to be unnecessarily harsh," states enacted statutes to provide for refunds of erroneously or illegally collected taxes. Id. The Utah statute that serves this function is section 59-2-18321, which provides:

Any taxes, interest, and costs paid more than onee, or erroneously or illegally collected, may, by order of the county legislative body, be refunded by the county treasurer, and the portion of the taxes, interest, and costs paid to the state or any taxing entity shall be refunded to the county, and the appropriate officer shall draw a warrant for that amount in favor of the county.

Utah Code Ann. § 59-2-1821 (2000). We think it clear, both from our prior decisions and from the statutory scheme as a whole, that the seope of this statute is relatively narrow.

10 Section 59-2-1821 must first be understood in relation to another statutory provision, section 59-2-1827, which allows a taxpayer to bring an action in district court to recover a tax or any portion thereof that the taxpayer claims is unlawful and has paid under protest. Utah Code Ann. § 59-2-1827 (2000). The pay-under-protest requirement is in accord with the common law rule; a tax paid under protest is the equivalent of a tax paid under duress or compulsion and therefore may be recovered by the taxpayer if a court agrees that the tax was unlawfully collected.

11 In the Neilson case, this court compared the predecessors to the current see-tions 59-2-1821 and 59-2-1827. 123 P. at 336-38. There, the court explained that "tlhe taxes mentioned in [Comp. Laws 1907,] section (2642, the predecessor to section 59-2-1821,] are such only which it is clear the county had no authority to collect, and, in case they are collected, has no legal right to retain them." Id. at 388. The Netison court distinguished section 2642 from section 2684, the predecessor to the current Utah Code section 59-2-1327, by noting that section 2642 allows a taxpayer to obtain a refund without having paid under protest and without going to court. "[The illegality of the tax is absolutely assumed," and only if the county refuses to provide the refund must the taxpayer go to district court to appeal the decisions. Id. at 338, 128 P. 834. The court considered it "easy to perceive why payment under protest is required for taxes specified under section 2684, and why none is required for those mentioned in section 2642," evidently because it regarded section 2642 as covering only those instances where the payment "more than once" or "erroneously or illegally" collected is a "matter of record in the county treasurer's office." Id. at 388. In such a situation, where the county treasurer has the information necessary to make the determination at hand, the county commissioners need only receive some form of notification from the taxpayer to be "as well prepared to look into the matter as they would be by the filing of a more formal claim against the county" in court. Id.

{12 Thus, in order for a taxpayer to receive a refund under section 59-2-1821, as interpreted by Netison, the taxpayer must be able to point to a specific double payment, error or illegality that is readily apparent from county records. If the illegality is in dispute, the taxpayer must first pay under protest before he has standing to challenge the tax in court under section 59-2-1827.

113 Our later cases follow Netison's construction. In CIG Exploration, Inc. v. Utah State Tax Commission, 897 P.2d 1214, 1216 (Utah 1995), we held that taxpayers were not entitled to a refund under section 59-2-1821 when they paid property taxes "on the basis of a valuation that was correct as of a given January 1st," even when a subsequent federal agency decision reduced a property's revenue, making the original valuation inaccurate. Such an occurrence, we reasoned, did not constitute a tax "erroneously or illegally collected within the meaning of section 59-2-1821." Id. In support of our decision in CIG, we cited Shea v. State Tax Commission, 101 Utah 209, 120 P.2d 274 (1941), which "[rle-jected] the plaintiff's contention that any collection under a statute later declared unconstitutional is a collection 'through error."" CIG, 897 P.2d at 1216.

4 14 Other provisions in the Property Tax Act also support our view of section 59-2-1321 as providing for taxpayer refunds only in limited cireumstances. The legislative scheme clearly contemplates that the primary vehicle for challenging property tax assessments is the administrative appeals process laid out in section 59-2-1004. A taxpayer may initiate this process by filing an application to the County Board of Equalization within thirty days of notice of valuation. - Utah Code Ann. § 59-2-1004(1)(a) (2000). The board then holds a public hearing in accordance with section 59-2-1001 and renders a decision as to whether the property's valuation is correct. Id. The taxpayer may appeal the board's decision to the State Tax Commission. Id. § 59-2-1004(4). Judicial review of commission decisions is provided for under sections 59-1-601 to -610 (governing review of formal adjudicative proceedings).

¶ 15 We understand this statutory scheme as mandating that taxpayers who dispute the valuation of their property take their claim to the board under Utah Code section 59-2-1004 within the prescribed time period or waive it. Once a taxpayer has waived his right to contest the county's valuation, he may still pay the tax under protest if he disputes the legality of the tax and wishes to bring suit in district court under Utah Code section 59-2-1827. If he prevails, he is entitled to recover the portion of tax paid under protest. In addition, in the limited circumstance where a taxpayer can point to an error of fact or law in the collection of the tax, or a payment more than onee, that is readily apparent from county records, he may apply to the commission to refund the mistakenly collected amount under Utah Code section 59-2-1821, and if denied, may appeal the commission's decision in district court. Thus, we do not hold that a taxpayer may never receive a refund under section 59-2-1821 for a valuation error, but such an error must be of a type that is readily apparent from county records. An alleged error in choice or application of appraisal methodology is unlikely to fit within this limited category.

116 Other states with similar statutory schemes have attributed similarly narrow meanings to their refund statutes. See, eg., Meredith v. Elliott, 247 S.C. 335, 147 S.E.2d 244, 248 (1966) ("Under [a] statute relating to refunding of taxes which have been 'erroneously or illegally exacted or paid,' the quoted words refer to an assessment illegal because of jurisdictional defect [due to the fact, for example, that the assessed property was exempt or located in another county] and do not include a mere error of judgment in valuing the property."); S & R Props. v. Maricopa County, 178 Ariz. 491, 875 P.2d 150, 160 (Ct.App.1993) ("[The [refund] statute appears to contemplate a method by which a taxpayer can call to the attention of the [taxing authorities] an alleged error and obtain relief if the error is indisputable.... This construction of the statutory scheme presupposes that the error ... will be one plainly and indisputably revealed by the county's own records or the taxpayer's claim."); Quaker Oats Co. v. Stanton, 96 S.W.3d 183 (Mo.2003) (holding that the state refund statute did not provide relief where the taxpayer sought a refund for an error that it was responsible for and where it had received notice of the assessment that resulted from its mistake but did nothing to correct the situation before paying the tax).

17 Maintaining the limited seope of such refund statutes is in accord with public policy. In his treatise on taxation, Justice Thomas Cooley notes:

To accord a right of recovery in every case where, after assessments have been made without appeal, budgets and tax rules predicated thereon, the taxes paid without objection or protest, and the monies expended for the public purposes, it after-wards develops that some mistake has been made in the assessment, would work disastrous results. It must of necessity be confined to extreme and exceptional cases.

3 Cooley on Taxation, § 1295, 4th ed. (1924); see also Crest Communications v. Kuehle, 754 S.W.2d 563 (Mo.1988) ("[Plublic policy discourages suits for the refund of taxes erroneously paid or illegally collected and favors certainty in the collection of revenue."). Thus, a broader interpretation of section 59-2-1821 than the one we maintain here would, we believe, threaten the integrity of other provisions of the Property Tax Act, in particular sections 59-2-1004 and 59-2-1327, and the stability of Utah's property taxing scheme.

118 Applying our interpretation to the case at hand, we hold that the Landlords' claim does not fit within the scope of section 59-2-1821. We reject, first of all, the Landlords' argument that their claim fits under the "paid more than once" clause of this provision. We believe this clause refers only to more than one payment by a single taxpayer, for example due to forgetfulness or simple error. Considering a situation where a property owner sought a refund, claiming that he had erroneously paid taxes according to an assessment that included the property belonging to another, a New York court held that:

Such error as existed was an error of the assessors going to substance and only made manifest by extrinsic facts. It was not therefore of a character that could be corrected at this time [under the state refund statute]. ... The situation was one of overassessment and the petitioner's remedy was to have sought correction on grievance day.

In re Morewood Realty Holding Co., 241 A.D. 841, 271 N.Y.S. 392, 396 (N.Y.App.Div.1934).

T19 We also reject the Landlords' argument that their claim fits under the "erroneously or illegally collected" provision. The Landlords have not pointed to any place in the record that indicates an erroneous or illegal assessment of their property. In addition, it is apparent from both parties' arguments that they do not allege an error of fact or law that would be readily apparent from county records. The Landlords' quarrel is with the appraisal methodology that county assessors may, or may not, have used when assessing the value of their property. The Landlords claim that this methodology may have captured the value of leasehold improvements in the property's assessment. However, the county disputes this assertion, claiming that its use of actual lease rates for appraisal purposes prevents such a result. The Landlords are essentially asking this court either to make a blanket determination that all county assessments of commercial property with leasehold improvements erroneously and fllegally included the value of the improvements in the valuation of the property or to authorize an unlimited fishing expedition in county records for some clear evidence that their particular properties were erroneously or illegally assessed. Section 59-2-1321 was never intended to serve this function.

1 20 Associate Chief Justice DURRANT, Justice WILKINS, Justice PARRISH, and Judge MOWER concur in Chief Justice DURHAM's opinion.

121 Having recused himself, Justice RUSSON does not participate herein; District Judge DAVID L. MOWER sat.

      . - Prior to January 1, 2003, the relevant section of the Utah Constitution was article XIII, section 3(1).

      . - The Board of Equalization is the county legislative body to which this provision refers.

      . Although the language of section 2642 may appear to give the county discretion over whether to grant the taxpayer a refund, we held in Neilson that when "the taxes in question are clearly illegal and void," the taxpayer is "therefore entitled to recover." Id. at 340. In other words, the county's discretion is limited to those cases where the illegality of the tax is not clear. See CIG Exploration, Inc. v. Utah State Tax Comm'n, 897 P.2d 1214, 1215 (Utah 1995) ("We have held that thle] language [of section 59-2-1321] mandates that counties refund erroneously or illegally collected ad valorem taxes."); Utah Parks Co. v. Iron County, 14 Utah 2d 178, 380 P.2d 924, 926 (1963) (holding that the county should have ordered a refund where the court was able to determine that a property's transfer to a tax-exempt entity after the date of statutory lien but prior to the property's assessment made the imposition of tax erroneous and illegal).

      . - Nothing in this decision is intended to alter our holding, in Board of Equalization v. Utah State Tax Comm'n ex rel. Benchmark, Inc., 864 P.2d 882, 884 (Utah 1993), that we would grant no deference to the commission's conclusion that a particular appraisal methodology met state constitutional and statutory requirements for ad va-lorem taxation. Such questions of law, absent an explicit legislative grant of discretion to the commission, are reviewed de novo by this court. Id. In order to raise such a question in this forum, however, a taxpayer must first either exhaust administrative remedies under section 59-2-1004 or pay his or her tax under protest in accord with section 59-2-1327.


author: FABE, Chief Justice.

text:
    CONSERVATORSHIP ESTATE OF K.H., Appellant/Cross-Appellee, v. CONTINENTAL INSURANCE COMPANY; Community Advocacy Project of Alaska, Inc.; Professional Guardian Services Corporation; and David Schade, Appellees/Cross-Appellants.
    Nos. S-9949, S-9959.
    Supreme Court of Alaska.
    June 20, 2003.
    Rehearing Denied July 30, 2003.

      Robert S. Noreen, Law Office of Robert S. Noreen, Fairbanks, for Appellant and Cross-Appellee.
    Christopher E. Zimmerman, McConahy, Zimmerman & Wallace, Fairbanks, for Ap-pellee and Cross-Appellant Continental Insurance Company.
    James D. Oswald, Song Oswald & Mon-dress, PLLC, Seattle, Washington, and Ronald Bliss, Bliss, Wilkens & Clayton, Anchorage, for Appellee and Cross-Appellant Community Advocacy Project of Alaska, Inc.
    David W. Pease, Burr, Pease & Kurtz, Anchorage, for Appellees and Cross-Appellants Professional Guardian Services Corporation and David Schade.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

K.H.'s inheritance was rapidly depleted while he was in the care of professional guardians. He sued two prior guardians, the first for breach of fiduciary duty and the second for fraud. The superior court dismissed the claims against both guardians on statute of limitations grounds. However, because neither guardian filed a final accounting that fully disclosed all financial matters, thus triggering the six-month statute of limitations, we reverse the order granting summary judgment in favor of both guardians.

II. FACTS AND PROCEEDINGS

A. Factual History

1. K.H.'s personal background

After K.H. graduated from high school in 1962, he enlisted in the United States Navy. He served through 1966, at which time he was honorably discharged. He then moved to Alaska, and in 1969 he began to experience the onset of the prodro-mal phase of schizophrenia He was first hospitalized at the Alaska Psychiatric Institute in 1978 after being arrested for trespassing. He was subsequently hospitalized twelve additional times in Alaska, and was admitted to a number of Veterans Administration (VA) hospitals in Wisconsin and nois. From 1976 to the present, KH. participated in various community mental health programs in Alaska.

KH. now suffers from paranoid schizophrenia, possible organic brain syndrome, and glaucoma. His mental illness is longstanding and chronic. He suffers auditory hallucinations, diminished concentration and attention span, and periodic difficulties with anger management. His illness makes it impossible for him to provide for himself both physically and financially and, when left alone, he has a tendency to deteriorate considerably. He is also unable to manage money, being unaware of the source of his income or monthly expenses. He currently receives Social Security and a VA pension. After his expenses are paid, he has approximately $75 left each month. He has never married, nor had any children. He does not remember the names or locations of his remaining family members. KH. currently resides in a supervised, semi-independent apartment operated by Fairbanks Community Mental Health Center. He will always need supervision and a structured environment.

2. The conservatorship and guardianship

In 1992 KH. received an inheritance of $92,172.32. This prompted a petition for conservatorship and, in September 1992, the superior court appointed Community Advocacy Project of Alaska (CAPA) as K.H.'s conservator. Shortly thereafter, KH. moved to Seward where he resided at Seward Life Action Council (SLAC). KH. had difficulties with at least one staff member at SLAC, so in 1995 CAPA assisted in transferring him to Fairbanks, where he was placed under the care of Monta Faye Lane of the Interior Caregivers Association. Although K.H. had $90,241 in a securities account at the beginning of the CAPA conservatorship in 1992, that money was gone when he arrived in Fairbanks in 1995.

While at Lane's assisted living home, KH. intentionally cut his left wrist. In order to provide better supervision and care for KH., CAPA, already his conservator, was appointed temporary guardian in February 1996. CAPA's guardianship appointment was finalized on July 10, 1996. Soon thereafter, two members of CAPA, Michael Schade and B. Jarvi, formed their own company, Profession al Guardian Services Corporation (PGSC). Accordingly, Lane petitioned the superior court to terminate CAPA as guardian and transfer K.H.'s guardianship to PGSC so that K.H. could continue to receive services from the same people. On November 12, 1996, the court ordered the transfer of the conserva-torship and guardianship to PGSC.

In December 1996 a standing master for the superior court ordered the court visitor to report on CAPA's expenditures of KH.'s assets. The report, filed with the court in February 1997, expressed concern that CAPA's billings presented a "disturbing breakdown" of costs, and stated that some fees charged were "unheard of." The court visitor concluded her report by stating that "CAPA spent a large sum of [K.H.'s]) money in a 'spend down' fashion rather than using it in a frugal and conscientious way." In a follow-up report, the court visitor concluded that CAPA had "purchased mental health support services for [KH.] at a rate 1500% higher than was necessary." The court visitor suggested that it was time for an attorney to explore recovery of KH.'s assets. She expressed doubts about whether Schade was in a position to do that, as he had been Executive Director of CAPA while it served as K.H.'s conservator and he now served as K.H.'s conservator at PGSC. The court visitor's concerns about Schade's possible conflict of interest were heightened when she learned that Schade had stated in his May 13, 1997 objection to the master's recommendation that "it would not be in [K.KH.'s] best interest to get a recovery...."

In February 1997, after the conservator-ship and guardianship had been transferred to PGSC, CAPA filed a document entitled "final guardianship report" regarding KH. However, this report apparently contained a number of errors and inconsistencies, and CAPA submitted an amended report on May 9, 1997.

At the request of PGSC, Sandra Bolling of the Department of Veterans Affairs conducted a field examination and interview with KH. in April 1997. She recommended that because PGSC was KH .'s guardian and conservator, it should be appointed his legal custodian for VA purposes. PGSC signed a VA "fiduciary agreement" naming itself as legal custodian and fiduciary for K.H.

Because of continuing concerns that PGSC and CAPA had not fulfilled their duties as guardians and conservators, and that K.H.'s estate was subject to waste, the superior court ordered on July 8, 1997 that the Office of Public Advocacy (OPA) intervene. OPA is K.H.'s current guardian and conservator.

In August 1997 PGSC filed a request with the superior court for approval to pay itself more than $3,000 in conservatorship fees from K.H.'s VA benefits. The request stated that "[the VA has authorized [K.H.'s] guardianship/conservatorship fees to be taken from the VA pension funds." In September 1997 the superior court issued an order allowing PGSC to pay its fees from K.H.'s assets "as authorized by the Veterans Administration." The following month, PGSC submitted a "final - guardianship/conservatorship report." On behalf of KH., OPA requested a hearing to clarify the discrepancies between the court order allowing fees and PGSC's purported final report. An evidentiary hearing was held on December 17, 1997, at which it was revealed that PGSC and Schade still controlled K.H.'s VA benefits.

In February 1998, after OPA had been appointed guardian, the court visitor closed her investigation into K.H.'s case. In her "notice of closed case and further concern," she remarked that she had additional concerns about CAPA's billing of KH. for "vague charges for 'case management' services not otherwise detailed; ... transaction charges not consistent with the fee schedule(s) in effect"; improper travel charges; and "duplicated charges (more than one staff charging for the same service)."

In May 1998 PGSC filed a "federal fiduciary's account" with the Department of Veterans Affairs, covering the period from November 1, 1996 to March 31, 1998. It revealed that PGSC paid itself $3,672.01 in guardianship fees from the veterans benefits. Responsibilities for KH.'s veterans benefits were apparently not transferred from PGSC to OPA until sometime in March 1998. At this time, the Department of Veterans Affairs conducted a second field examination, but the payee was now listed as OPA rather than PGSC. In her report, the field examiner addressed Schade's handling of K.H.'s VA benefits. She reported that, while Schade had asserted to the superior court that "the VA has authorized [K.H.'s] guardianship/conser-vatorship fees to be taken from the VA funds," the field examiner had discovered no evidence of any such authorization and thought it extremely unlikely that such an authorization had been given. She added that PGSC signed a VA form that did not allow for fee payment. She concluded by stating, "I find it is highly likely that Mr. Schade made a false or misleading statement to the [sJuperior court. I find that VA funds have been misused. I suspect there is a high possibility of fraud in this case."

B. Procedural History

On March 18, 1999, OPA filed a complaint on behalf of K.H. to recover money overcharged by CAPA and PGSC. It alleged that CAPA breached its fiduciary duty by charging excessive fees, diverting KH.'s assets to SLAC, and paying itself fees without written order of the court. KH. further asserted that PGSC and Schade committed fraud and misrepresentation by telling the court that the VA had authorized them to take fees from VA pension funds. This, KH. alleges, resulted in the conversion of $5,020.87 of his VA benefits.

PGSC filed a motion for summary judgment, arguing that res judicata barred K.H.'s fraud and misrepresentation claims. PGSC and Schade claimed that this cause of action was litigated and decided by the September 1997 court order that permitted PGSC to pay itself fees "as authorized by the Veterans Administration." The superior court denied the motion on the basis that neither the doctrine of res judicata nor Alaska Civil Rule 60(b) precluded a claim that a prior judgment was obtained by fraud or misrepresentation.

PGSC filed a motion for reconsideration of the denial of summary judgment, arguing that the savings clause in Rule 60(b) was used only in rare and unusual cireumstances not present in this case. The allegations in this case, PGSC argued, amounted only to common law fraud, taking the case out of the realm of fraud upon the court. The superior court denied the motion for reconsideration without comment.

CAPA moved for summary judgment based on its assertion that the statute of limitations had expired. It argued that the court visitor's report constituted a final account for the purposes of AS 18.36.100, and that since KH.'s claim was not filed within six months of that report, it was time barred. K.H. responded that since no final accounting had ever been submitted, the motion should be denied. PGSC joined in CAPA's motion for summary judgment based on the statute of limitations. The superior court granted the motion for summary judgment and dismissed all claims against PGSC, David Schade, and CAPA.

KH. appeals the grant of summary judgment in favor of PGSC, Schade, and CAPA. PGSC cross-appeals the denial of summary judgment based on res judicata.

III. STANDARD OF REVIEW

We review a grant of summary judgment de novo and view the facts in the light most favorable to the non-moving party. When reviewing a grant of summary judgment, we must determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Summary judgment may be affirmed on grounds other than those relied upon by the superior court.

IV. DISCUSSION

A. The Statute of Limitations Does Not Bar KH.'s Claim Because Neither CAPA Nor PGSC Filed a Final Report Fully Disclosing All Financial Matters.

The erux of the dispute before us is whether CAPA or PGSC filed a "final accounting or other statement fully disclosing the matter" sufficient to trigger the six-month limitations period. Alaska Statute 13.36.100 provides for a limitations period of six months after receipt of a final account that fully discloses all pertinent matters upon termination of the trust relationship: ~

Unless previously barred by adjudication, consent or limitation, any claim against a trustee for breach of trust is barred as to any beneficiary who has received a final account or other statement fully disclosing the matter and showing termination of the trust relationship between the trustee and the beneficiary unless a proceeding to assert the claim is commenced within six months after the receipt of the final account or statement.

Even if a trustee's final account or statement does not amount to a full disclosure, the beneficiary must file suit within three years of receipt of the final account or other statement as long as the trustee has made all records available for examination by the beneficiary:

In any event and notwithstanding lack of full disclosure, a trustee who has issued a final account or statement received by the beneficiary and has informed the beneficiary of the location and availability of ree-ords for examination by the beneficiary is protected after three years.!®

Because K.H.'s relationships with CAPA and PGSC spanned different periods, we will address the statute of limitations issue separately for each defendant.

1. Community Advocacy Project of Alaska

CAPA served as conservator for KH. from September 1992 to November 1996. CAPA served as guardian for K.H. from February 1996 to November 1996. The court visitor filed her first report on May 24, 1996, and, on December 10, 1996, the standing master issued a second order appointing the same court visitor to review prior expenditures made on behalf of K.H. That report, filed on February 17, 1997, examined CAPA's expenditures for KH. and concluded that it presented a "disturbing breakdown." For example, the court visitor expressed concerns that CAPA paid SLAC $54,759 for "services," while at the same time paying itself $27,487 under a category entitled "other." In just one year, CAPA paid SLAC almost $22,000, or $80 per hour, for non-professional services such as training KH. to do his laundry. The court visitor reported that the fees charged for such services were "unheard of," and pointed out that K.H. was being charged for these services while he was already paying for twenty-four-hour assisted living. She also noted that CAPA's billing statements for its services during this period were not specific, "usually indicating only 'guardianship services' or 'conservatorship services' without breaking down the nature of assistance and cost per hour." The court visitor concluded her report by observing that CAPA had dissipated large sums of K.H.'s money "in a 'spend down' fashion rather than using it in a frugal and conscientious way."

In her follow-up report, issued on February 27, 1997, the court visitor reported her discovery that KH. should have been charged $5 per hour for the services he received at SLAC. In the court visitor's view, the securities account where K.H.'s money was held should not have been touched and interest income on those securities should only have been used if it was distributed to KH. The visitor concluded that CAPA "purchased mental health support for [K.H.] at a rate 1500% higher than was necessary."

On February 26, 1997, the day before the visitor's follow-up report was filed, CAPA filed a document entitled "final guardianship report" in the superior court. That report was challenged by K.H.'s then-guardian and conservator, PGSC, which requested that the report be rejected because it contained numerous errors. CAPA subsequently filed an "amended final report" in the superior court on May 9, 1997.

CAPA does not point to its own "amended final report" as the accounting that triggers the six-month statute of limitations; rather, CAPA claims that the February 27, 1997 court visitor's report constitutes a "final account or other statement fully disclosing the matter" within AS 13.36.100 and that KH. had six months from that report to file a claim. Because suit was not filed until March 18, 1999, more than eighteen months after the six-month limitation, CAPA argues that it is time barred. To support its argument, CAPA points out that in his complaint, KH. simply reiterated the allegations made by the court visitor in her February 27, 1997 report and addendum. CAPA adds that KH. offered no evidence that he had learned of any additional facts regarding CAPA's performance as conservator between February 27, 1997, the date of the visitor's report and addendum, and March 18, 1999, the date the lawsuit was filed.

However, CAPA's argument that the February 27, 1997 court visitor's report constitutes "a final account or other statement fully disclosing the matter" under AS 18.36.100, thus triggering the six-month limitations period, is not convincing. The statute contemplates that the final account or statement triggering the statute of limitations must be submitted by the trustee. Indeed, the statutory provision explicitly provides in its see-ond sentence that "a trustee who has issued a final account or statement" is protected after three years provided that the trustee has informed the beneficiary of the location and availability of information. (Emphasis added.) It is the trustee, not a third person such as a court visitor, who must issue the final account or other statement fully disclosing the matter in order to trigger the applicable statute of limitations. The trustee is the party with the knowledge, access, and information available to make a "full disclosure" under the statute and is therefore the party who is required to provide a full and final account.

CAPA was apparently aware that it was required to file the final account, as it filed two "final guardianship report" forms in the superior court. These forms provide a special section for the final accounting. CAPA filed its amended "final guardianship" report on May 9, 1997, after the court visitor's February 27, 1997 addendum and report. This undercuts CAPA's contention that the visitor's report constitutes a "statement fully disclosing the matter"; CAPA was still working on its own accounting in the K.H. conser-vatorship almost three months after the court visitor's report.

Finally, CAPA does not argue that its own "final guardianship" report is the triggering event for the six-month statute of limitations. This report could not be viewed as providing "full disclosure," particularly when Schade, who was director of CAPA while it served as K.H.'s guardian, called the report "incomplete." Indeed, CAPA's counsel submitted an affidavit to the trial court in September 2000, stating that he had learned that SLAC overcharged KH.: "My review of [the SLAC fee payment policy] and [K.H.'s]) cireum-stances supports a good faith argument that SLAC's charges to [KH.] in 1992 and 1998 violated the SLAC contract with [K.H.]." Thus, new facts have come to light during the course of this litigation which indicate that CAPA's own report is not a "statement fully disclosing the matter" which would trigger the six-month limit.

CAPA's suggestion that the six-month limitations period is triggered here because the subsequent conservator may have been aware of alleged misconduct is also unavailing. The statute requires more than just inquiry notice. Rather, the statute specifically provides that the six-month limitations period begins to run only after the ward or beneficiary receives a statement by the trustee that provides full disclosure of all financial matters. In the absence of full disclosure, the three-year limitations period is available.

Because the trustee failed to issue a final report making full disclosure under AS 13.36.100, the six-month limit was not triggered. The court visitor's report cannot satisfy the statute's requirement that the trustee issue the report. Therefore, the trial court erred in granting summary judgment in favor of CAPA on statute of limitations grounds.

2. Professional - Guardian - Services Corporation and David Schade

PGSC served as guardian and conservator for KH. from November 12, 1996 to July 8, 1997. The court visitor filed one report in K.H.'s case while PGSC was guardian and conservator. In that report, she reiterated the questionable and excessive expenditures made by CAPA. She also concluded that since Schade was director of CAPA at the time, and now served as K.H.'s guardian at PGSC, there was a possible conflict of interest, particularly given Schade's apparent reluctance to sue to recover K.H.'s assets. As a result, the superior court removed PGSC and appointed OPA to serve as KH.'s guardian and conservator.

PGSC immediately filed a motion for approval of payment of guardianship and con-servatorship fees, announcing that "[the VA has authorized [K.H.'s] guardianship/conser-vatorship fees to be taken from the VA pension funds." On September 9, 1997, the court issued an order allowing PGSC to take its fees "as authorized by the Veterans Administration." PGSC filed a three-page "final guardianship/conservatorship report" in the superior court on October 30, 1997. K.H. objected to the report, arguing that the VA funds taken pursuant to the September 9, 1997 order were not included in PGSC's October 30 final report and requested a hearing. During the hearing, held on December 17, 1997, Schade did not substantiate his claim of authorization to use VA benefits to pay his fees. Moreover, OPA was unable to obtain PGSC's fiduciary agreement with the VA until March 1998. OPA claims that it did not receive PGSC's federal fiduciary account statement until June 30, 1998.

KH. contends that the trial court erred in granting summary judgment to PGSC because, like CAPA, PGSC failed to file a final accounting or other statement fully disclosing all financial matters of the guardianship and conservatorship. KH. points out that after PGSC filed a final report on October 830, 1997, K.H. objected, and a hearing was held. The standing master asked for further reporting. There was never a follow-up or amended report. In addition, KH. argues that a VA inquiry into the expenditure of funds was still ongoing in 1998.

PGSC and Schade maintain that there is no question that the October 80, 1997 final report constitutes a final accounting of activities conducted on behalf of KH., thus triggering the six-month limit PGSC argues that K.H. has previously acknowledged the report as a final accounting and that the six-month limit began to run on October 80, 1997, the date the report was filed. PGSC also argues that at the December 17, 1997 hearing it disclosed the VA as the source of fees it was receiving and that Schade answered any questions regarding those fees. PGSC adds that "[tJhere is no indication that any information was withheld from the final accounting." Thus, PGSC argues, there was no lack of disclosure which would extend the limit from six months to three years.

Alaska Statute 18.86.100 requires full disclosure of all financial matters upon "termination of the trust relationship between the trustee and the beneficiary." Here, PGSC's October 30, 1997 final report failed to explain the $3,829 in fees it paid itself out of K.H.'s VA funds. Schade did not reveal that he was still receiving K.H.'s VA checks until the December 17, 1997 hearing. Moreover, OPA did not receive PGSC's fiduciary agreement with the VA until March 1998 and was apparently unable to obtain PGSC's federal fidu-clary account statement until June 30, 1998. None of this information was included in the final accounting. The final report thus could not constitute full disclosure. Moreover, OPA does not appear to have taken over for PGSC as VA fiduciary until March 1998. While KH. may have been made aware that PGSC was paying itself with his fees in September of 1997, it took almost six more months to obtain a copy of PGSC's fiduciary agreement and have a VA examiner determine if and when PGSC received the alleged authorization to take their fees from K.H.'s VA benefits. Thus, not only did PGSC fail to include in its final report the fact that it continued to receive KH.'s VA benefit checks, it also apparently continued in its capacity as fiduciary for K.H.'s VA benefits well into 1998-at least six months after filing the alleged final report. Thus, the trust relationship between K.H. and PGSC had not terminated at the time the final report was filed.

Therefore, the trial court erred in granting summary judgment to PGSC on statute of limitations grounds. PGSC's final report failed to make a full disclosure in its omission of the fact that it was still receiving K.H.'s VA benefits, and the relationship between KH. and PGSC continued beyond the date of the final report.

B. KH.'s Claim Against PGSC Is Not Barred by Res Judicata.

PGSC appeals the denial of the motion for summary judgment based on res judicata. PGSC argues that KH. is in effect trying to relitigate the September 1997 court order awarding PGSC $8,020.97 for conserva-torship fees. The present action to recover those fees, PGSC contends, involves the same parties and the same issue and is therefore barred by res judicata. PGSC maintains that if KH. thought the fee award was obtained improperly, he had one year to challenge the order under Civil Rule 60(b). However, Rule 60(b) contains a savings clause which permits the court to set aside a judgment for "fraud upon the court":

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant relief to a defendant not personally served, or to set aside a judgment for fraud upon the court.

PGSC asserts that the savings clause in Rule 60(b) is only to be employed "in extraordinary cireumstances, such as when a fraud on the court would result in manifest injustice." Thus, PGSC maintains that because K.H.'s allegations would only amount to common law fraud, he is not entitled to take advantage of the savings clause and his present claim should have been dismissed.

We need not reach the issue of whether PGSC's conduct amounted to fraud upon the court because we conclude that the September 1997 order approving fees was not a final judgment for purposes of res judicata. Res judicata is a judicial doctrine that prevents the relitigation of the same claim between the same parties or those in privity with them. However, only a valid, final judgment on the merits presents an absolute bar to a subsequent action. The September 1997 order allowing PGSC to take fees from K.H.'s VA benefits was an interim order not appealable under Appellate Rule 202. It does not constitute a valid, final judgment on the merits and thus res judicata does not apply. The superior court's ruling in favor of K.H. on the issue of res judicata is affirmed.

v. CONCLUSION

Neither CAPA nor PGSC filed final ac-countings which fully disclosed K.H.'s financial matters. Summary judgment as to both is REVERSED and this case is REMANDED for further proceedings in accordance with this opinion.

The court order that authorized PGSC and Schade to pay itself from K.H.'s VA benefits was not a final judgment for purposes of res judicata. The denial of summary judgment based on res judicata is AFFIRMED.

      . - In reviewing a grant of summary judgment, we draw all reasonable inferences in favor of the non-moving party. Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 303 (Alaska 2000). Therefore, KH. receives the benefit of all factual inferences.

      . Although OPA had replaced PGSC as guardian and conservator on July 8, 1997, and PGSC filed a "final guardianship report" dated October 30, 1997, PGSC retained control of KH.'s VA benefits.

      . The complaint against CAPA also names their bonding agency, Continental Insurance.

      . Nichols, 6 P.3d at 303.

      . R.E. v. State, 878 P.2d 1341, 1345 (Alaska 1994); see also Alaska R. Civ. P. 56(c).

      . Hernandez v. Lambert, 951 P.2d 436, 439 n. 5 (Alaska 1998) (citing James v. McCombs, 936 P.2d 520, 523 n. 2 (Alaska 1997)).

      . Both parties agree that this is the applicable statute of limitations.

      8. AS 13.36.1100.

      . Civil Rule 60(b) provides in part:
      The motion shall be made within a reasonable time, and for ... [fraud or misrepresentation] not more than one year after the date of the notice of the judgment or orders as defined in Civil Rule 58.1(c).

      . Calhoun v. Greening, 636 P.2d 69, 71-72 (Alaska 1981).

      . Id.

      . Appellate Rule 202 provides in part:

        (a) An appeal may be taken to the supreme court from a final judgment entered by the superior court, in the circumstances specified in AS 22.05.010.


author: COATS, Chief Judge. MANNHEIMER, Judge,

text:
    STATE of Alaska, Petitioner, v. Gregory SIMPSON, Respondent.
    No. A-8367.
    Court of Appeals of Alaska.
    April 25, 2003.
    Rehearing Denied July 31, 2003.
    W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Petitioner.
    Frederick T. Slone, Kasmar and Slone, P.C., Anchorage, for Respondent.

      Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

Under the due process clause of the Alaska Constitution, a person arrested for driving while intoxicated is entitled to an independent test of his blood aleohol level. The State charged Gregory Simpson with felony driving while intoxicated (DW1) based in part upon two prior California convictions for diving while intoxicated. Simpson moved to suppress the State's use of his prior California convictions on the ground that those convictions were constitutionally suspect under Alaska law because his right to an independent test was not constitutionally protected in California. Superior Court Judge Stephanie E. Joannides agreed with Simpson and granted his motion. The State filed a petition for review. We granted the petition. We reverse Judge Joannides's decision and conclude that Simpson's prior California convictions are admissible to support the felony DWI charge.

Normally driving while intoxicated is a class A misdemeanor. But the State can charge the person with a class C felony if the person has two or more prior convictions "since January 1, 1996, and within the 10 years preceeding the date of the present offense." Judge Joannides's ruling prevented the State from using Simpson's two prior California convictions to charge Simpson with a felony.

In reaching her decision to not allow the State to use Simpson's prior convictions to support a felony driving while intoxicated charge, Judge Joannides relied on two cases where we held that some prior convictions were too unreliable to enhance a defendant's sentence. In Pananen v. State, we addressed a prior conviction where the defendant had not been afforded a right to counsel. In Pananen, the defendant was convicted of two counts of driving while intoxicated. The trial court sentenced the defendant as a third offender because he had two prior convictions for that offense in Wisconsin. On appeal, the defendant argued that the first of the two Wisconsin convictions was invalid to enhance his sentence because, under Wisconsin law, he was not afforded the right to be represented by counsel. We concluded "that an uncoun-seled conviction is simply too unreliable to be depended on for purposes of imposing a sentence of incarceration, whether that sentence is imposed directly or collaterally." Based on this conclusion, we held that "[blecause Wisconsin law did not extend to Pananen the right to court-appointed counsel for his first DWI offense, Pananen's first Wisconsin conviction should not have been relied upon by the district court as a basis for determining the applicable mandatory minimum sentence."

In State v. Peel, we addressed whether a prior driving while intoxicated conviction could be used to support a mandatory minimum sentence for driving while intoxicated where the defendant had been denied the right to a jury trial. In Peel, the trial court concluded that it would not use the defendant's prior Louisiana conviction for driving while intoxicated to impose a mandatory minimum sentence required by law for second driving while intoxicated offenders. The trial court relied on the fact that, under Louisiana law, Peel had not been entitled to a trial by jury for his prior offense. The State challenged the trial court's ruling, distinguishing Pananenr by arguing that the right to a jury trial was not as critical as the right to counsel. We relied on Alaska decisions that equated the right to counsel and the right to a jury trial and upheld the trial court's decision to not use the prior Louisiana driving while intoxicated conviction to apply the mandatory minimum sentencing provisions.

Using the logic of these two decisions, Judge Joannides concluded that Simpson's two prior California convictions could not be used to support enhancing Simpson's offense from a misdemeanor to a felony. She held that because California did not mandate that a defendant was entitled to an independent test of his blood aleohol level, Simpson's prior convictions, like the prior convictions we disallowed in Pananen and Peel, were constitutionally suspect. The State petitioned, arguing that the right to an independent test is not the equivalent to the right to counsel or the right to a jury trial.

In order to understand the nature of the right to an independent test in Alaska, it is helpful to explore the history of the development of that right. The Alaska Supreme Court first recognized a due process right to challenge the result of a police-administered breath test in Lauderdale v. State. In Lauderdale, the court held that in order to introduce the result of a police administered breath test at trial, the State had to give the defendant a reasonable opportunity to challenge the breath test result. The court required the State to preserve ampoules that were part of the breath test procedure so that the defendant could independently test the ampoules to potentially attack the breath test result.

In Anchorage v. Serrano, this court was asked to determine whether, under the logic of Lauderdale, the State should be required to preserve a breath sample so that a person charged with driving while intoxicated could have the breath sample independently examined to challenge the result of a State administered breath test. Relying on Lauderdale, we concluded that "due process [requires] the prosecution to make reasonable efforts to preserve a breath sample in those cases in which they wish to admit the result of a breath test." } But we concluded that the State was not limited to preserving a breath sample to allow the defendant to challenge a breath test result. We pointed out that the State could "take other steps" to allow a defendant to determine the accuracy of the breath test. We suggested that the defendant could be informed of his right to secure an independent test and, if he requested an independent test, could be allowed or assisted to obtain that test.

The Alaska Supreme Court has continued to expand and protect the right to an independent test. The court has explained that "[a] positive Intoximeter test result is the single most important piece of evidence against a defendant accused of driving while intoxicated" and concluded that "[slince a defendant must provide the state with potentially incriminating evidence at the risk of criminal penalties, ... the defendant [must] be given an opportunity to challenge the reliability of that evidence in the simplest and most effective way possible, that is, an independent test." The State has met its obligation to provide defendants with the right to challenge their breath test results by providing them with the opportunity to take an independent blood test.

Other courts have generally reached a different result. In California v. Trombetta, the United States Supreme Court held that "the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial." Since the United States Supreme Court's decision in Trombet-ta, most states have concluded that a defendant does not have a right to an independent test under the due process clauses of their respective state constitutions. Few, if any, states protect the right to an independent chemical test to the extent that Alaska does.

The constitutional right to an independent chemical test is a firmly established and important right in Alaska. But, as important as this right is, we do not believe that criminal proceedings in states that do not recognize this right can be equated to criminal proceedings in which the defendant has no right to counsel or no right to a jury trial. When a defendant has been denied the right to counsel or the right to trial by jury, the trial process itself is fundamentally flawed. But the right to an independent chemical test is not so crucial a right.

This distinction is illustrated in our decision in Serrano, where we held that the supreme court's Lauderdale decision required the State to offer a defendant the right to an independent chemical test. In Serrano, we declared that law enforcement officials could satisfy their burden to provide the defendant with an independent chemical test if they made "reasonable efforts to preserve a breath sample or to take other steps to allow a defendant to verify their results of the [breath] test." That is, the rule we announced in Serrano was limited by practicality: the State suffers adverse consequences for failing to afford a defendant the opportunity to obtain an independent chemical test only if the police fail to make reasonable efforts to offer the independent test.

More recently in Snyder v. State, the Alaska Supreme Court reiterated this doe-trine of reasonable efforts. The court compared the police department's duty to offer defendants an independent chemical test to the requirement announced in Stephan v. State that the police electronically record custodial interrogations. - The supreme court stated:

As long as it is not impracticable for the police to take a defendant to a facility where he or she can obtain an independent test, this potentially exculpatory evidence cannot be denied a defendant. However, if obtaining an independent test is impracticable or exceedingly burdensome, as may be the case, for example, if the accused is arrested in a community without the capability of providing a blood test, no test would be constitutionally required.

Thus, even in Alaska, a defendant charged with driving while intoxicated is not always entitled to an independent chemical test. If it is "impracticable or exceedingly burdensome" to obtain an independent chemical test, then the test is not required. Under such cireumstances, a defendant may properly be convicted of the offense even though there is no independent chemical test. Moreover, if the defendant were ever again prosecuted for driving while intoxicated, this conviction would qualify as a prior conviction for purposes of enhancing the defendant's sentence or supporting a charge of felony driving while intoxicated.

All of this demonstrates the very real difference, from a due process standpoint, between criminal proceedings where the defendant had no opportunity to obtain an independent chemical test and criminal proceedings where the defendant had no right to counsel or no right to a jury trial. It is obvious that our supreme court would never excuse the failure to provide a defendant with legal counsel or the failure to grant the defendant a jury trial on the ground that it was "impracticable or exceedingly burdensome" to do so.

One other aspect of our Serrano decision offers insight regarding the nature of a defendant's right to an independent chemical test. When we decided Serrano, we also had to decide whether to apply our decision retroactively. We concluded that the right to an independent chemical test "should be applied mainly prospectively, since there has been considerable reasonable reliance on the prior standard of law by law enforcement officials." In contrast, when the United States Supreme Court decided Gideon v. Wainwright, extending the right to counsel in criminal prosecutions to indigent state defendants under the Fourteenth Amendment, the Supreme Court made its decision retroactive. If we had concluded that the lack of an independent chemical test rendered any resulting conviction fundamentally unfair, we likewise would have made Serrano retroactive.

We accordingly conclude that, even though the Alaska due process clause normally guarantees the right to an independent chemical test, the failure of another state to provide an equivalent guarantee does not bar the use of prior convictions from that state in Alaska prosecutions for driving while intoxicated-either to establish the applicable mandatory minimum sentence or to establish the predicate prior convictions for a charge of felony driving while intoxicated.

The decision of the superior court is REVERSED.

MANNHEIMER, Judge,

dissenting.

This case raises the issue of whether a defendant's prior DWI conviction from another state qualifies as a "prior conviction" under AS 28.35.030(r)(4) if that other state does not recognize a motorist's right to an independent chemical test of their breath or blood. Simpson has prior DWI convictions from California. California statutory law gives motorists the right to choose a blood test (presumably, an independent chemical test) instead of a breath test: see California Vehicle Code § 23612(a)(2)(A). - However, the California courts have repeatedly held that this statutory right is not a due process right, and that failure to advise a motorist of their right to choose a blood test does not invalidate the motorist's conviction or require suppression of breath test results.

In our original decision, State v. Simpson, Alaska App. Opinion No. 1869 (April 25, 2003), we concluded that even when other states do not give motorists the right to an independent test, convictions from these states still qualify as "prior convictions". We acknowledged that a motorist's right to an independent test is a component of the due process of law guaranteed by Article I, Seetion 7 of the Alaska Constitution. See Gundersen v. Anchorage, 792 P.2d 673, 676-77 & n. 6 (Alaska 1990). We further acknowledged that DWI convictions from other states do not qualify as "prior convictions" if those states do not guarantee motorists the right to counsel or the right to trial by jury. See Pananen v. State, 711 P.2d 528 (Alaska App. 1985) (right to counsel), and State v. Peel, 843 P.2d 1249 (Alaska App. 1992) (right to jury trial). Nevertheless, we concluded that the due process right to an independent chemical test is not as fundamental as the due process rights to counsel and trial by Jury. See Simpson, opinion at p. 599.

After considering Simpson's petition for rehearing, I am no longer firmly convinced that this analysis is correct. I also question whether, after our supreme court has declared that a particular right is so fundamental that it is guaranteed by the due process clause, this Court is then authorized to declare that this same right is not as fundamental as other fundamental rights.

For these reasons, I would grant the petition for rehearing and order further briefing on the questions raised in the petition.

      . AS 28.35.030(b).

      . AS 28.35.030(n). Simpson was charged under former AS 28.35.030 but changes to the statute are not relevant to this appeal.

      . 711 P.2d 528 (Alaska App.1985). w

      . Id. at 529.

      . Id.

      . Id. at 530 ("'Under Wisconsin law, a first-of fense DWI is treated as a civil forfeiture, not as a crime. The offense is not punishable by imprisonment.... Accordingly, an indigent person charged with a first-offense DWI in Wisconsin is not entitled to court-appointed counsel.").

      . Id. at 532.

      . Id.

      . 843 P.2d 1249 (Alaska App.1992).

      . Id. at 1250.

      . Id. ("[Uinder Louisiana law, defendants who were charged with criminal offenses which carry a penalty of no more than six months in jail cannot obtain a jury trial. DWI is such an offense in Louisiana, and [the defendant] therefore had no right to a jury trial.").

      . Id. at 1250-51.

      . Id. at 1251.

      . 548 P.2d 376 (Alaska 1976).

      . Id. at 381-82.

      . Id. at 382.

      . 649 P.2d 256 (Alaska App.1982).

      . Id. at 260.

      . Id. at 258.

      . Id. at 258 n. 5.

      . Gundersen v. Anchorage, 792 P.2d 673, 675-76 (Alaska 1990).

      . Snyder v. State, 930 P.2d 1274, 1277 (Alaska 1996) (extending the right to an independent chemical test even if the defendant had refused to take the statutorily prescribed breath test); Gundersen, 792 P.2d at 675-78 (holding that the police could satisfy a defendant's due process right to an independent test by informing the defendant of his right to an independent test and assisting him to obtain the test); Champion v. State, Dep't of Pub. Safety, 721 P.2d 131, 132-33 (Alaska 1986) (extending the right to an independent test to license revocation proceedings).

      . 467 U.S. 479, 104 S.Ct. 2528, 81 LEd.2d 413 (1984).

      . Id. at 491, 104 S.Ct. at 2535.

      . See, eg., People v. Trombetta, 173 Cal.App.3d 1093, 1100, 219 Cal.Rptr. 637 (Cal.App.1985); Havens v. Charnes, 738 P.2d 1202, 1204 (Colo.App.1987); State v. Vernon, 218 Neb. 539, 356 N.W.2d 887, 889-90 (1984); Montoya v. Metro. Court, 98 N.M. 616, 651 P.2d 1260, 1261 (1982), rev'd on other grounds, State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993); Commonwealth v. Gamber, 352 Pa.Super. 36, 506 A.2d 1324, 1327 (1986); State v. Williams, 480 A.2d 1383, 1390 (R.I.1984); State v. Sandler, 175 W.Va. 572, 336 S.E.2d 535, 538 (1985).

      . See, eg., Snyder, 930 P.2d at 1282 n. 3 (Eastaugh, J., dissenting); John P. Ludington, Annotation, Drunk Driving: Motorist's Right to Private Sobriety Test, 45 A.L.R.4th 11, 1986 WL 361638 (1986) (discussing the various states' extension of statutory and constitutional protections to independent tests); Flem Whited, III, Independent Test, 1 Drinking/Driving Litigation: Criminal and Civil § 11:19 (2002) (same).

      . Serrano, 649 P.2d at 258.

      . 930 P.2d 1274, 1278 (Alaska 1996).

      . 711 P.2d 1156 (Alaska 1985).

      . - Snyder, 930 P.2d at 1278.

      31. Id.

      . Serrano, 649 P.2d at 260.

      . 372 U.S. 335, 83 S.Ct. 792, 9 LEd.2d 799 (1963).

      . See Johnson v. New Jersey, 384 U.S. 719, 727-28, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966) (recognizing and defending the retroactive application of Gideon); Gideon v. Wainwright, 153 So.2d 299, 300 (Fla.1963) (outlining the procedure adopted by the Florida court system to handle the anticipated future appeals arising from the Supreme Court's Gideon decision).

      . California Vehicle Code § 23612(a)(1)(A) reads:
      If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person has the choice of whether the test shall be of his or her blood or breath, and the officer shall advise the person that he or she has that choice. If the person arrested is either incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test. If a blood or breath test, or both, are unavailable, then paragraph (2) of the subdivision (d) applies.
      (§ 23612(d)(2) reads: ""If a blood or breath test is not available ..., the person shall submit to the remaining test in order to determine the percent, by weight, of alcohol in the person's blood. If both the blood and breath tests are unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.")

      . See People v. Superior Court (ex rel. Maria), 13 Cal.Rptr.2d 741, 11 Cal.App.4th 134 (Cal.App. (3rd Dist.) 1992) (a police officer's failure to offer a suspected drunk driver the chemical test of his choice does not require dismissal of the charges); Skinner v. Sillas 130 Cal.Rptr. 91, 58 Cal.App.3d 591 (Cal.App. (2nd Dist.) 1976) (a motorist has no right to be told of all possible chemical tests, so long as he is told of one potential test and he thereafter takes the chemical test of which he was informed); People v. Brannon, 108 Cal.Rptr. 620, 32 Cal.App.3d 971 (Cal.App. (5th Dist.) 1973) (even though the police officer violated the portion of the implied consent statute that requires arresting officers to inform motorists that they have the choice of taking a breath, blood, or urine test, the motorist's choice of tests does not involve any constitutionally protected interest; thus, even though the motorist was offered only a breath test, the failure to advise the motorist of the other choices does not require suppression of the results of the breath test).
      See also Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998), cert. denied 525 U.S. 981, 119 S.Ct. 444, 142 L.Ed.2d 399 (holding that police officers did not violate the Fourth Amendment when they failed to inform suspects arrested for driving under the influence (DUI) of their choice of alcohol tests, pursuant to California's implied consent statute. The court reasoned that suspects do not have to be advised of their Fourth Amendment rights, much less their statutory rights. Therefore, the Fourth Amendment did not require police officers to advise DUI suspects of their right to choose among breath, blood, or urine tests, even though the California statute required that arrestees be informed of these options.)