author: RUSSON, Justice:

text:
    2002 UT 88
    WEBBANK, a Utah industrial loan corporation, Susan Soliz, Justin Magner, Econuel Ingram, and Johnny Childers, Plaintiffs and Appellees, v. AMERICAN GENERAL ANNUITY SERVICE CORP., a Texas corporation, Allstate Insurance Company, Allstate Settlement Company, a Nebraska corporation, and Metropolitan Insurance and Annuity Co., a Delaware corporation, Defendants and Appellant. WebBank, a Utah industrial loan corporation, and Jesse Rodriguez, Plaintiffs and Appellees, v. Metropolitan Insurance and Annuity Co., a Delaware corporation, Defendant and Appellant. WebBank, a Utah industrial loan corporation, and Justice Lockridge, Plaintiffs and Appellees, v. Metropolitan Insurance and Annuity Company, a Delaware corporation, Defendant and Appellant.
    Nos. 20010253, 20010256, 20010259.
    Supreme Court of Utah.
    Aug. 16, 2002.

      (Glen F. Strong, Craig T. Jacobsen, David C. Wright, Salt Lake City, and Craig M. Lessner, Norcross, GA, for WebBank.
    Stephen C. Baker, Michael J. Miller, Philadelphia, PA, and Milo Marsden, Salt Lake City, for American General Annuity Service Corp., Allstate Insurance Co., Allstate Settlement Co.
    Bret F. Randall, Melissa J. Barbanell, Salt Lake City, for Metropolitan Insurance & Annuity Co.
   RUSSON, Justice:

T1 American General Annuity Service Corporation ("American General") appeals the trial court's grant of summary judgment in favor of WebBank. We reverse and remand.

BACKGROUND

¶ 2 The instant case arises in connection with a financial transaction centered around a structured settlement agreement, specifically, the transfer of payments of money owing under the structured settlement agreement. A structured settlement agreement is a method for compensating an injured person. Under a structured settlement, a plaintiff becomes entitled to and receives an amount of money payable over time in the form of monthly and periodic payments ("structured settlement payments") as compensation for personal injury from a defendant or its insurer.

¶ 3 Structured settlements first came into common usage in the 1960s and 1970s and subsequently gained favorable tax status with a 1982 amendment to the federal Internal Revenue Code. At that time, Congress recognized that many personal injury victims were dissipating the settlements received as compensation for their tort claims, leaving them without means of support. In response to this concern, Congress amended the Internal Revenue Code to provide, among other things, tax benefits to personal injury victims and insurers that settle claims through the steady payment of settlement funds over an extended period of time. See 26 U.S.C. § 104(a)(2) (2002) (exeluding such payments from the calculation of an individual's gross income for federal income tax purposes); 26 U.S.C. § 130 (2002) (providing tax benefits to certain personal injury liability assignments and qualified funding assets). Consequently, structured settlements have become a common and familiar means of settling lawsuits.

¶ 4 In the unrelated, yet predicate, action to this case, Susan Soliz ("Soliz"), a personal injury victim, commenced a lawsuit arising out of an injury she suffered. To resolve the lawsuit, Soliz entered into a structured settlement agreement with the defendant in that action and/or the defendant's lability insurer under which she received monthly settlement payments. As part of the settlement agreement, Soliz agreed, among other things, that the payments to which she was entitled under the structured settlement agreement would not be accelerated or assigned. The structured settlement agreement, however, did provide that American General would assume the obligation to make future settlement payments to Soliz pursuant to the structured settlement agreement. Under this arrangement, structured settlement payments were made to Soliz without incident.

¶ 5 At some point after the initiation of the structured settlement payments, Soliz, for reasons irrelevant to this appeal, was in need of an immediate, lump-sum payment of money instead of the periodic payments she had been receiving under her structured settlement agreement. To this end, Soliz entered into a financial transaction with WebBank, an industrial loan corporation organized under the laws of this state. Under their Loan and Security Agreement ("security agreement") and attendant promissory note, Soliz agreed to transfer her interest in her future structured settlement payments to WebBank in exchange for a purported loan. In other words, Soliz sought to exchange her structured settlement payments over a period of time for an immediate, lump-sum payment from WebBank, and WebBank offered to lend her a present sum of money and required her to secure the repayment of the purported loan with her future stream of structured settlement payments as collateral. In addition, as a condition precedent to the execution of the purported loan and the immediate payment of a lump sum to Soliz, WebBank required the receipt of a final, non-appealable court order determining that WebBank had a security interest in the structured settlement payments as collateral for the purported loan. It also required that payments on the purported loan be made directly from American General to WebBank, thus by-passing Soliz. That financial transaction and its underlying security agreement are the subject of this appeal.

PROCEDURAL HISTORY

¶ 6 Sometime between November 1999 and April 2000, WebBank, for itself and on behalf of Soliz, commenced a declaratory judgment action seeking a judicial determination pursuant to the conditions precedent required in the security agreement.

¶ 7 WebBank and American General filed cross-motions for summary judgment. On August 18, 2000, the trial court granted partial summary judgment in favor of WebBank, denied American General's motion for summary judgment, and permitted further discovery focused on the discrete and, in the trial court's view, dispositive issue of whether the financial transaction between WebBank and Soliz was a loan or a sale. After further discovery, WebBank and American General renewed and re-briefed their motions for summary judgment. On November 13, 2000, the trial court granted summary judgment in favor of WebBank on the remaining issue of whether the financial transaction between WebBank and Soliz should be considered a loan or a sale, concluding that there were no genuine issues of material fact and that the transaction or transfer was as a matter of law a loan instead of a sale or an assignment. American General timely appealed.

¶ 8 On appeal, American General argues that the trial court erred in concluding as a matter of law that the financial transaction between WebBank and Soliz was a loan and not a sale because the question of whether the parties to a particular transaction, such as the one in this case, intended to create a loan or a sale is a question of fact to be resolved by the trier of fact, therefore precluding the grant of summary judgment. In addition, American General asserts that, despite the lack of any ambiguity in the terms and provisions of the security agreement and promissory note, the nature and character of the transaction as a whole is ambiguous, and that the existence of such an ambiguity as to WebBank's and Soliz's true intent regarding the nature or character of the transaction should have precluded the trial court's grant of summary judgment. Alternatively, American General argues that, even if the trial court did not err in concluding that the transaction in question was a loan, it did err by concluding that Article 9 of the UCC governed the transaction and that the "tort exemption" and/or the "insurance and annuity exemption" of Article 9 of the UCC, codified at Utah Code Ann. § 70A-9-104(k) and -104(g) (1997) respectively, did not apply to the transfer of Soliz's structured settlement payments to WebBank.

¶ 9 WebBank counters that the trial court correctly held that as a matter of law Web-Bank and Soliz intended to create a security interest in favor of WebBank in the structured settlement payments through their security agreement and related promissory note. WebBank argues that the trial court could properly decide this issue as a matter of law because the trial court needed only look to the four corners of the unambiguous security agreement and promissory note executed between WebBank and Soliz to determine that WebBank and Soliz intended to create a security interest in the structured settlement payments, and consequently, a secured transaction subject to Article 9 of the UCC. Furthermore, WebBank contends that the trial court was correct in concluding that Article 9 of the UCC governed the transaction and that the exemptions to the application of Article 9 did not apply.

STANDARD OF REVIEW

110 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." Utah R. Civ. P. 56(c); see also Holmes Dev., LLC v. Cook, 2002 UT 38, 21, 48 P.3d 895; Ault v. Holden, 2002 UT 33, ¶ 15, 44 P.3d 781; State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, ¶ 8, 44 P.3d 680. The propriety of a trial court's grant of summary judgment is a question of law. Holmes Dev., 2002 UT 38 at ¶ 21, 48 P.3d 895. In deciding whether summary judgment was appropriate, we need review only whether the trial court erred in applying the relevant law and whether a material fact was in dispute. Id.; Hill v. Allred, 2001 UT 16, ¶ 12, 28 P.3d 1271. "We thus review the trial court's legal conclusions for correctness, according them no deference." Holmes Dev., 2002 UT ¶ 38 at ¶ 21, 48 P.3d 895; see also Ault, 2002 UT 33 at ¶ 15, 44 P.3d 781.

ANALYSIS

¶ 11 On appeal, both WebBank and American General agree that the central issue in this case concerns WebBank's and Soliz's intentions, that is, whether WebBank and Soliz intended to create a secured transaction, ie., a loan, secured by Soliz's structured settlement payments or whether they actually intended to effectuate a sale or an assignment of Soliz's interest in her structured settlement payments disguised as a loan. WebBank and American General disagree, however, on the proper means for determining or discerning WebBank's and Soliz's true intent regarding the transaction, and consequently, the proper characterization of the transaction as a loan or a sale. They also disagree as to whether the trial court or the jury, as the trier of fact, should properly make such a determination as to WebBank's 'and Soliz's intentions.

¶ 12 American General contends that the trial court erred in its determination as a matter of law that the transaction between WebBank and Soliz was a loan, relying on a line of cases that, according to American General, stands for the general proposition that the question of whether a transaction is a loan or a sale is a question of fact to be decided by the trier of fact, thus precluding summary judgment. In American General's view, the ambiguity or uncertainty as to whether WebBank and Soliz intended their transaction to be a genuine loan or a sale masquerading as a loan presents a triable issue of fact.

¶ 13 WebBank relies on our general principles of contract construction and interpretation to argue that the trial court did not err in interpreting as a matter of law WebBank and Soliz's security agreement as creating a secured transaction or loan by ascertaining. WebBank's and Soliz's true intentions regarding the nature and character of the transaction from the clear and unambiguous language contained in the four corners of their security agreement and promissory note.

¶ 14 To resolve this matter, we must review whether the trial court's interpretation of the security agreement was proper insofar as it explicitly determined as a matter of law that the transaction in question was a loan, and insofar as it implicitly determined that the language of the security agreement was unambiguous, and consequently, that Web-Bank and Soliz intended the transaction to be a loan.

¶ 15 We begin with a review of our well-settled rules of contract interpretation. In our review of the trial court's conclusion, " '[wle accord [its] interpretation of [the] contract no deference and review it for correctness." " Jones v. ERA Brokers Consol., 2000 UT 61, 112, 6 P.8d 1129 (alterations in original) (quoting Aquagen Int'l, Inc. v. Cal-rae Trust, 972 P.2d 411, 418 (Utah 1998)).

¶16 WebBank and Soliz effectuated the financial transaction in question through various documents, including a security agreement and a promissory note. A security agreement is a contract that is interpreted according to the well-settled rules of contract construction. 68A Am.Jur.2d Secured Transactions § 163 (1993); Ronald A. Anderson, 8A Anderson on the Uniform Commercial Code § 9-208:51 (8d ed.1996). The same is true for a promissory note. 10 C.J.S. Bills and Notes § 79 (1995) ("The rules of construction applicable to contracts are applicable to bills and notes.").

¶ 17 The underlying purpose in construing or interpreting a contract is to ascertain the intentions of the parties to the contract. Peterson v. Coca-Cola USA, 2002 UT 42, ¶ 9, 48 P.3d 941; SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT 54, ¶ 14, 28 P.3d 669. " 'In interpreting a contract, the intentions of the parties are controlling." " Dixon v. Pro Image, Inc., 1999 UT 89, ¶ 13, 987 P.2d 48 (quoting Winegar v. Froerer Corp., 813 P.2d 104, 108 (Utah 1991)); see also Peterson v. Sunrider Corp., 2002 UT 43, ¶ 18, 48 P.3d 918. Moreover, specifically in the context of interpreting a security agreement, "[t]he controlling factor in determining whether a transaction is in fact a security transaction or an absolute sale is the intent of the parties ...." 79 C.J.S. Secured Transactions § 24 (1995); see also 68A Am.Jur.2d Secured Transactions § 5 ("[The principal test for determining whether there: is a secured transaction under Article 9 is the intent of the parties; that is, the test for determining whether a transaction is a secured transaction governed by Article 9 is whether the parties intended the collateral to secure the payment or performance of an obligation.").

118 In interpreting a contract, " '[w]e look to the writing itself to ascertain the parties' intentions, and we consider each contract provision ... in relation to all of the others, with a view toward giving effect to all and ignoring none' " Jones, 2000 UT 61 at ¶ 12, 6 P.3d 1129 (quoting Plateau Mining Co. v. Utah Div. of State Lands & Forestry, 802 P.2d 720, 725 (Utah 1990) (further quotation omitted)); see also Cent. Fla. Invests., Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 12, 40 P.3d 599; Dixon, 1999 UT 89 at ¶ 14, 987 P.2d 48.

119 "If the language within the four corners of the contract is unambiguous, the parties' intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law." Cent. Fla. Invests., Inc., 2002 UT 8 at ¶ 12, 40 P.3d 599; see also Sunrider Corp., 2002 UT 43 at ¶ 18, 48 P.3d 918; Dizon, 1999 UT 89 at ¶ 13, 987 P.2d 48; Winegar, 813 P.2d at 108. However, if the language of the contract is ambiguous such that the intentions of the parties cannot be determined by the plain language of the agreement, "extrinsic evidence must be looked to in order to determine the intentions of the parties" Cent. Fla. Imvests., Inc., 2002 UT 3 at ¶ 12, 40 P.3d 599; see also Sunvider Corp., 2002 UT 48 at ¶ 18, 48 P.3d 918; Coca-Cola USA, 2002 UT 42 at ¶ 9, 48 P.3d 941; SME Indus., Inc., 2001 UT 54 at T 14, 28 P.3d 669. If a contract is ambiguous, the court may consider the parties' actions and performance as evidence of the parties true intention. See Plateau Mining Co., 802 P.2d at 725.

120 An ambiguity exists in a contract term or provision "if it is capable of more than one reasonable interpretation because of 'uncertain meanings of terms, missing terms, or other facial deficiencies." " SME Indus., Inc., 2001 UT 54 at ¶ 14, 28 P.3d 669 (quoting Winegar, 813 P.2d at 108 (further quotation omitted)); see also Sunrider Corp., 2002 UT 43 at ¶ 19, 48 P.3d 918; Coca-Cola USA, 2002 UT 42 at ¶ 9, 48 P.3d 941; Cent. Fla. Invests., Inc., 2002 UT 3 at ¶ 12, 40 P.3d 599.

¶ 21 Specifically in the context of whether a particular agreement should be considered a secured transaction for purposes of Article 9 of the UCC, however, we have extended the notion of ambiguity in contracts to include instances where, despite the lack of ambiguity in the terms and provisions of the contract themselves, an ambiguity exists as to the nature and character of the contract or transaction as a whole. See Colonial Leasing Co. of New England, Inc. v. Larsen Bros. Constr. Co., 731 P.2d 488, 487 (Utah 1986).

122 "Whether an ambiguity exists in a contract is a question of law." Winegar, 813 P.2d at 108; see also Sunrider Corp., 2002 UT 43 at ¶ 14, 48 P.3d 918; Dixon, 1999 UT 89 at ¶ 14, 987 P.2d 48. "When ambiguity exists, the intent of the parties becomes a question of fact." SME Indus., Inc., 2001 UT 54 at ¶ 14, 28 P.3d 669; see also Plateau Mining Co., 802 P.2d at 725. "[A] motion for summary judgment may not be granted if a legal conclusion is reached that an ambiguity exists in the contract and there is a factual issue as to what the parties intended." Faulkner v. Farnsworth, 665 P.2d 1292, 1293 (Utah 1983); see also Sunrider Corp., 2002 UT 48 at ¶ 14, 48 P.3d 918; Winegar, 813 P.2d at 108. "Therefore, in considering a motion for summary judgment, '[fJailure to resolve an ambiguity by determining the parties' intent from parol evidence is error' " SME Indus., Inc., 2001 UT 54 at ¶ 14, 28 P.3d 669 (alteration in original) (quoting Plateau Mining Co., 802 P.2d at 725).

¶ 23 In the case at hand, the trial court determined as a matter of law based upon the security agreement and promissory note composing the financial transaction and the undisputed facts that WebBank and Soliz had executed a secured transaction in the form of a loan secured by Solig's right to receive future structured settlement payments. In making this determination, the trial court implicitly determined that there was no ambiguity in the security agreement that would have required extrinsic evidence to resolve and that would have precluded summary judgment.

¶ 24 WebBank argues, in accordance with our established rules of contract interpretation and construction, that the language of the security agreement is clear and unambiguous, and that the trial court was therefore correct in determining from the four corners of the security agreement that WebBank and Soliz intended to create a secured transaction and that the financial transaction was a loan. We disagree.

25 We consider this case to be sufficient ly similar to Colonial Leasing to be governed by it. In Colonial Leasing, the plaintiff transferred possession of a piece of construction equipment to the defendant pursuant to a document called a "lease." Id. at 484. The defendant defaulted on the payments required under the agreement, and the plaintiff sued for damages. The defendant argued that the terms of the agreement indicated that the contract was meant not as a true lease, but instead as a security agreement for the sale of the construction equipment. Id. at 487. The plaintiff argued that the agreement was plainly a lease on its face and according to its terms. Faced with this situation, we held:

In some cases, such a judgment [as to whether the parties intended an agreement to constitute a lease or security agreement] may be apparent from the face of the document, but in other cases, the basic nature of the agreement, judging solely from its contents, may be ambiguous. It is the general rule that if an agreement is ambiguous because of a lack of clarity in the meaning of particular terms, it is subject to parol evidence as to what the parties intended with respect to those terms. We hold that that rule also applies where the character of the written agreement itself is ambiguous even though its specific terms are not ambiguous.

Id. (citations omitted). The court reversed the trial court's grant of summary judgment and remanded so that parol evidence as to the parties' intentions regarding the nature and character of the transaction could be presented. Id. at 487-88.

126 Colonial Leasing, much like the case at hand, involved the issue of the interpretation of an agreement and whether the agreement, depending on its proper characterization, was a security agreement governed by Article 9 of the UCC. Our holding in Colonial Leasing is consistent with the general rules for interpreting security agreements in that, by allowing extrinsic evidence to determine the parties' intent as to whether the agreement was a security agreement, we ensured on remand that the trial court would properly focus the inquiry on the intent of the parties, on the substance, not on the mere form, of the transaction, and on the entire surrounding context of the transaction. See id. at 487 (concluding that "the need for parol evidence [was] also suggested by the nature and the terms of the lease itself and the surrounding cireamstances" and outlining factors for determining whether transaction was lease or security agreement); see also 79 C.J.S. Secured Transactions § 24 ("'The controlling factor in determining whether a transaction is in fact a security transaction or an absolute sale is the intent of the parties which is ascertained from all of the facts and cireumstances surrounding the transaction, including the language of the agreement."); id. § 41 ("It is substance, not form, which is decisive in determining whether an agreement is intended to create a security interest.... Parol evidence ... may be permitted to inform the determination of whether the parties actually intended to create a security interest."). The inquiry as to whether the parties intended to create a secured transaction presents a question of fact for the trier of fact. See 68A Am.Jur.2d Secured Transactions § 159 ("It is a question of fact whether a writing was intended to create a security interest ...."); 8A Anderson on the Uniform Commercial Code § 9-203:84 (same); T9 C.J.S. Secured Tramsactions § 41 ("[The issue of whether there was a meeting of the minds as to whether there was an underlying contractual intent to create a security agreement is a question of fact.").

127 Here, American General and Web-Bank have "presented contrary, tenable interpretations" of the nature and character of the contract and the transaction as a whole as either a secured transaction or an assignment or sale transaction. SME Indus., Inc., 2001 UT 54 at ¶ 14, 28 P.3d 669. American General points to provisions of the security agreement and promissory note, such as the grant of an irrevocable and absolute power of attorney by Soliz to WebBank, the provision that renders the "collateral" the principal source of repayment of the alleged loan, and the explicit reference to the loan payments to be made by Soliz as the "[alssigned [play-ments," that support its interpretation of the contract and the true character of the transaction as a sale or an assignment. WebBank likewise points to other provisions of the contract that are indicative of a loan transaction. Both interpretations are tenable, reasonable, and supportable after a careful review of the documents. Accordingly, it is unclear from the language and provisions contained in the security agreement and promissory note whether WebBank and Soliz intended to effectuate a genuine secured transaction or whether they intended to create a sale or an assignment.

128 Despite the absence of ambiguity in the contract language and provisions themselves, we conclude that an ambiguity exists as to the nature or character of the transaction as a whole. See Colonial Leasing, 731 P.2d at 487. In other words, when we view all of the provisions of the contract together, we conclude that an ambiguity exists as to whether WebBank intended to create a genuine loan transaction or a sale or an assignment disguised as a loan transaction. Because the nature and character of the transaction is ambiguous and the intent of the parties unclear, resort to extrinsic evidence is required to determine the intent of the parties to the security agreement and promissory note. See Cent Fla. Invests., Inc., 2002 UT 3 at ¶ 12, 40 P.3d 599; see also Sunrider Corp., 2002 UT 43 at ¶¶ 18, 23, 48 P.3d 918; SME Indus., Inc., 2001 UT 54 at ¶ 15, 28 P.3d 669; Dixon, 1999 UT 89 at ¶ 14, 987 P.2d 48; Winegar, 813 P.2d at 108; Faulkner, 665 P.2d at 1293. Such ambiguity may be resolved only by the trier of fact after consideration of parol or extrinsic evidence as to the parties' intentions, that is, a review and evaluation of all the facts and circumstances surrounding the substance of the transaction. See Winegar, 813 P.2d at 108; Colonial Leasing, 731 P.2d at 487; 79 C.J.S. Secured Transactions § 24. Therefore, the trial court erred in granting summary judgment to WebBank. See SME Indus., Inc., 2001 UT 54 at ¶ 15, 28 P.3d 669; Colonial Leasing, 731 P.2d at 487-88.

129 Because the grant of summary judgment was improper due to the existence of a disputed factual issue as to WebBank's and Soliz's intentions and the nature and character of the transaction, we reverse and remand for trial in order that extrinsic evidence may be presented as to WebBank's and Soliz's intentions regarding the nature and character of the transaction.

30 Furthermore, because we remand for determination of the parties' intent in connection with the transaction and the true character of the transaction, that is, because the transaction's legal classification as a loan or a sale remains undetermined, we do not reach the parties' arguments regarding the legal question of whether certain exceptions to Article 9 of the UCC apply to the transaction at issue in this case.

CONCLUSION

131 For the foregoing reasons, the trial court's grant of summary judgment to Web-Bank was improper. We reverse and remand for a trial to determine the intentions of the parties and the character of the transaction.

T 32 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice WILKINS concur in Justice RUSSON's opinion.

      . Between November 1999 and April 2000, Web-Bank and its purported borrowers commenced more than seventy declaratory judgment actions. Many of those actions were summarily discontinued by WebBank and its purported borrowers. The trial court consolidated the four declaratory actions that are the subject of this appeal. The trial court then granted summary judgment in favor of WebBank and its purported borrowers in those four consolidated actions and in two other actions against Metropolitan Insurance and Annuity Company ("Metropolitan"). For purposes of appeal, this court consolidated all of these actions. Pursuant to a stipulated motion, the actions on appeal against Metropolitan were dismissed. Allstate Insurance Company, Allstate Settlement Corporation, and American General collectively briefed the legal issues involved in this consolidated appeal and submitted one unified memorandum of law in support of their position. Prior to the rendering and issuance of this opinion, Allstate Insurance Company and Allstate Settlement Corporation settled their dispute with WebBank, leaving American General as the sole appellant in this case.

      . The two documents incorporate each other by reference and together are the primary documents that compose the transaction at issue.

      . It is important to note that the Utah Legislature, during the 2002 general session, passed Senate Bill 163, the Structured Settlement Protection Act ("S.B. 163" or "Act"), S.B. 163, 54th Leg., Gen. Sess., 2002 Utah Laws --, which became effective as to transfers in connection with structured settlement agreements on May 6, 2002. This statute sets forth guidelines for transferring structured settlements, establishes disclosure, notice, and hearing requirements, and requires that such transfer agreements be approved by a court. The Act also exempts such transfers from application of Utah's version of Article 9 of the Uniform Commercial Code ("UCC"), Utah Code Ann. §§ 70A-9a-101 to -709 (Supp.2001). While this statute is meant to govern all such transactions in the future, it does not affect our decision in this case. See State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, n. 2, 44 P.3d 680 (noting that law as it existed at time of events giving rise to suit governs).
      References to Article 9 of the UCC hereinafter are to the 1997 Utah Code version of Article 9. That version of Article 9 was in effect at the time the transaction at issue in this case was executed. The previous version of Article 9 was repealed and supplanted with the passage of Senate Bill 168 during the 2000 general session. See S.B. 168, 53d Leg., Gen. Sess., 2000 Utah Laws 866-943. The new version of Article 9 became effective July 1, 2001. Id.

      . As noted above, structured settlement agreements, including the one related to the instant transaction, commonly include an anti-assignment provision. Presumably, the anti-assignment provision in Soliz's structured settlement agreement would prohibit her from transferring her interest in her structured settlement payments to a third party such as WebBank.
      Ultimately, American General seeks to have the transaction in question deemed a sale or an assignment in order to trigger the anti-assignment provision of the structured settlement agreement, thus precluding or invalidating the transaction between WebBank and Soliz.

      . WebBank seeks to have the transaction at issue declared a loan, ie., a secured transaction, in order for the transaction to be governed by Article 9 of the UCC. Under Utah's version of Article 9 of the UCC, specifically subsection 70A-9-318(4) (1997), a contractual term, such as the anti-assignment provision in the structured settlement agreement, is ineffective if it "prohibits assignment of an account or prohibits creation of a security interest in ... a general intangible for money due or to become due [i.e., the structured settlement payments]." Id. According to Web-Bank, this provision would apply if the transaction in question is deemed a loan or secured transaction. WebBank therefore seeks to trigger this provision of the statute in order to prevent the anti-assignment clause of the structured settlement agreement from invalidating Soliz's attempted transfer of her future structured settlement payments to WebBank in exchange for an immediate, lump-sum payment of money from WebBank. It is for this reason that WebBank urges the interpretation of the financial transaction in this case as a loan or secured transaction instead of a sale or simple assignment to which the anti-assignment provision of Soliz's structured settlement agreement presumably would be effective and section 70A-9-318(4) inapplicable.


source: Caselaw Access Project

author: DURRANT, Associate Chief Justice:

license: Public Domain

text:
    2002 UT 91
    Tyler W. BLUTH and Heidi T. Orme, husband and wife, Michael Vail, an individual, and Peter Wimbrow an individual, on behalf of themselves and all others similarly situated, Plaintiffs and Respondents, v. UTAH STATE TAX COMMISSION, Defendant and Petitioner.
    No. 20010438.
    Supreme Court of Utah.
    Aug. 30, 2002.

      Thomas R. Karrenberg, Scott A. Call, Jon V. Harper, Salt Lake City, Philip Gordon, Boise, Idaho, for plaintiffs.
    Mark L. Shurtleff, Att'y Gen., Clark L. Snelson, Asst. Att'y Gen., Salt Lake City, for defendant.
   DURRANT, Associate Chief Justice:

INTRODUCTION

111 This case raises the question of whether a district court has subject matter jurisdiction over a challenge to a rule promulgated by the Utah State Tax Commission (the "Commission") when plaintiffs have failed to exhaust administrative remedies within the Commission. The district court dismissed the case for lack of jurisdiction. The court of appeals reversed, concluding that plaintiffs' case was subject to a statutory exception under which exhaustion is not required when it would result in irreparable harm. Bluth v. Tax Comm'n, 2001 UT App. 138, 26 P.3d 882. Because we conclude the court of appeals erred in ruling that exhaustion of administrative remedies would irreparably harm plaintiffs, we reverse and remand with instructions that plaintiffs' case be dismissed for lack of jurisdiction.

BACKGROUND

I. DISTRICT COURT PROCEEDINGS

T2 The Commission promulgated two rules under which plaintiffs were charged sales tax on membership fees paid to discount vendors. See Bluth, 2001 UT App. 138 at ¶ 12 (citing Utah Admin. Code R865-198-33, -62 (1999)). Plaintiffs filed a class action lawsuit on September 30, 1999, seeking a declaratory judgment that the rules exceeded the Commission's rulemaking authority under the Utah Code. Plaintiffs alternatively claimed that even if the Commission had authority to promulgate the rules, membership fees at discount stores do not fall within the scope of the rules.

¶ 3 On October 21, 1999, the Commission filed a motion to dismiss, claiming that plaintiffs had not exhausted their administrative remedies within the Commission. In particular, the Commission noted that plaintiffs had failed to avail themselves of administrative procedures that permit taxpayers to (1) request a refund for sales tax they believe was collected in error, see Utah Code Ann. § 59-12-110(2)(a) (Supp.2001), or (2) petition the Commission to amend or repeal a tax rule, see id. § 68-46a-12. The district court granted the Commission's motion to dismiss on the ground that plaintiffs' failure to avail themselves of these administrative remedies deprived the court of subject matter jurisdiction. In reaching this conclusion, the district court relied on Article XIII, Section 11(5) of the Utah Constitution, which provides as follows:

Notwithstanding the powers granted to the State Tax Commission in this Constitution, the Legislature may authorize any court established under Article VIII to adjudicate, review, reconsider, or redetermine any matter decided by the State Tax Commission ... relating to revenue and taxation as provided by statute.

Utah Const. art. XIII, § 11(5) (emphasis added).

¶ 4 Focusing on the "matters decided" language in this constitutional provision, the district court concluded that "it would be an unconstitutional infringement for the Court in this case to decide these matters in the first instance without allowing the Tax Commission the opportunity to address this issue." Bluth, 2001 UT App. 138 at 15. Accordingly, the district court dismissed the case for lack of jurisdiction.

II. PLAINTIFFS' APPEAL TO THE UTAH COURT OF APPEALS

¶ 5 Plaintiffs filed a notice of appeal on March 2, 2000, and the case was assigned to the Utah Court of Appeals. On April 26, 2001, the court of appeals issued an opinion in which it reversed the district court's conclusion under the Utah Constitution and then concluded that the "irreparable harm" exception to the exhaustion requirement conferred jurisdiction on the district court. Id. at ¶¶ 6-10.

¶ 6 In reversing the district court's interpretation of the Utah Constitution, the court of appeals first characterized the taxpayer's challenge to the Commission's rule as being a facial challenge. Id. at 16. Relying on this characterization of plaintiffs' challenge, the court of appeals then concluded that "[when a Commission rule is being challenged on its face, the requirement in Article XIII, Section 11(5) of the Utah Constitution that the Commission 'decide' the 'matter' is satisfied at the time the Commission enacts the rule." Id.

¶ 7 Having concluded that the Utah Constitution did not deny the district court jurisdiction over plaintiffs' class action, the court of appeals next addressed the Commission's argument that the district court's ruling could be affirmed on statutory grounds. Specifically, the Commission argued that subsection 63-46a-12.1(2) of the Utah Code requires exhaustion as a prerequisite to judicial review of a Commission rule. Id. at 17. In rejecting the Commission's argument, the court of appeals concluded that immediate judicial review of the rule was permitted under section 63-46a-12.1(2)(b)(iii) of the Utah Code, id. at ¶ 8, which excuses a person from exhausting his or her administrative remedies pertaining to a rule when doing so "would cause the person irreparable harm." Utah Code Ann. § 63-462-12.1(2)(b)@) (1997).

T8 The court of appeals concluded that plaintiffs would be irreparably harmed for two reasons. First, the court of appeals observed that Brumley v. Utah State Tax Commission, 868 P.2d 796 (Utah 1998), "support[ed] application of the irreparable harm exception in declaratory judgment actions" that "involve[] threshold legal questions that [cannot bel finally determined by the Commission."" Bluth, 2001 UT App. 138 at ¶ 8 (quoting Brumley, 868 P.2d at 799). The court of appeals reasoned that the rationale underlying Brumley's reliance on the irreparable harm exception applied to the present case. Specifically, the court of appeals explained that the question presented by plaintiffs' declaratory judgment action-whether the Commission validly exercised its rule-making authority-was a "threshold legal issue [that] could not be avoided in a Commission proceeding and could not be definitively determined by the Commission." Id.

T9 Second, the court of appeals concluded that "the irreparable harm exception is particularly suited for the present case given the Commission's threat to subject any taxpayer seeking a refund to a counterclaim hearing to determine whether that taxpayer has failed to pay any use tax in the past." Id. at 19.

110 The court of appeals also noted that its decision not to require exhaustion was supported by "the de minimis amount of money at stake for individual taxpayers," allegedly $2.50 per membership per year. Id. at T9 n. 83. It reasoned that the de minimis value of the refunds tended to make exhaustion "futile and useless." Id. at 19.

{11 Having concluded plaintiffs would suffer irreparable harm if required to exhaust their administrative remedies, the court of appeals ruled that plaintiffs need not exhaust their remedies within the Commission. Id. at 110. Accordingly, the court of appeals reversed the district court's dismissal of the case. Id. -

4 12 We granted the Commission's petition for a writ of certiorari on August 15, 2001. We have jurisdiction pursuant to subsection 78-2-2(8)(a) of the Utah Code. Utah Code Ann. § 78-2-28)(a) (Supp.2001).

ANALYSIS

I. STANDARD OF REVIEW/ISSUE PRESENTED

118 "When exercising our certiora-ri jurisdiction, we review the decision of the court of appeals and not that of the trial court." Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 13, 9 P.3d 762. "On certiorari, we review the decision of the court of appeals for correctness." Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 11, 48 P.3d 968.

II. IRREPARABLE HARM

114 The court of appeals concluded that plaintiffs were not required to exhaust their administrative remedies under the irreparable harm exception to the exhaustion requirement set forth in section 63-46a-12.1(2)(b)(iii) of the Utah Code. On certiorari, the Commission argues the court of appeals erred in concluding plaintiffs would suffer "irreparable harm" if required to exhaust their administrative remedies We agree. None of the reasons cited by the court of appeals supports the conclusion that exhaustion would irreparably harm plaintiffs.

A. The Threshold Legal Question Might Be Avoided By The Commission

15 The court of appeals concluded that exhaustion is not required in this case because the Commission could not avoid or finally determine the threshold legal issues. Bluth, 2001 UT App. 138 at 18. We disagree.

€ 16 The issue of whether the rules exceeded the Commission's rulemaking authority might have been avoided if plaintiffs had pursued their administrative remedies within the Commission. Specifically, under the administrative procedures, the Commission has authority to amend or repeal the challenged rule in a manner that would moot and avoid plaintiffs' claims. Indeed, the Commission could have mooted plaintiffs' claims pursuant to section 68-46a-12 of the Utah Code, which states as follows:

(1) An interested person may petition an agency requesting the making, amendment, or repeal of a rule.
(2) The division shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition.
(B)A statement shall accompany the proposed rule, or amendment or repeal of a rule, demonstrating that the proposed action is within the jurisdiction of the agency and appropriate to the powers of the agency.
(4) Within 80 days after submission of a petition, the ageney shall either deny the petition in writing stating its reasons for the denial, or initiate rulemaking proceedings in accordance with Section 68-46a-4.

Utah Code Ann. § 638-46a-12 (2001) (emphasis added).

17 Requiring exhaustion might have permitted the Commission to avoid this issue in another way. Specifically, plaintiffs raised an alternative claim (Le., that even if the Commission had authority to promulgate the rules, membership fees do not fall within the seope of the rules) that could have been resolved administratively and thereby obviated the need to address plaintiffs' facial challenge to the rule. See Nebeker v. Utah State Tax Comm'n, 2001 UT 74, ¶¶ 16-17, 34 P.3d 180 (requiring exhaustion because it would give the Commission the opportunity to address plaintiffs' alternative non-constitutional claims and thereby potentially avoid the need to address plaintiffs' constitutional claims). Plaintiffs' alternative claim challenges the Commission's application of its own rules, the sort of question ideally suited to resolution by the Commission. Accordingly, we conclude that Brumley and related case law does not support the court of appeals' conclusion that plaintiffs would be irreparably harmed if required to exhaust their administrative remedies.

B. The Commission's Declared Intent To Offset Overdue Use Taxes Owed Against Any Refund Of Sales Tax Does Not Support Application Of The Irreparable Harm Exception

118 The court of appeals also reasoned that "the irreparable harm exception is particularly suited for the present case given the Commission's threat to subject any taxpayer seeking a refund to a counterclaim hearing to determine whether that taxpayer has failed to pay any use tax in the past." Bluth, 2001 UT App. 138 at ¶ 9. We disagree.

{19 To begin with, the Commission's statement was not the kind of "threat" that supports the application of the irreparable harm exception. Rather, the Commission is statutorily required to offset any overpayment of tax against other taxes due from the taxpayer. Specifically, subsection 59-12-110(2)(a) of the Utah Code states as follows:

If a taxpayer pays a tax, penalty, or interest more than once or the commission erroneously receives, collects, or computes any tax, penalty, or interest, including an overpayment described in Subsection (1)(c), the commission shall: () credit the amount of tax, penalty, or interest paid by the taxpayer against any amounts of tax, penalties, or interest the taxpayer owes; and (i) refund any balance to the taxpayer..

Utah Code Ann. § 59-12-110(@)(a) (2000). Thus, the Commission's declared intent to offset the refund is merely a procedural requirement.

120 Second, the Commission indicated that it would attempt to offset any refund whether plaintiffs pursued their claims for a tax refund administratively or in district court. Therefore, requiring exhaustion would place no additional burden on plaintiffs.

C. The De Minimis Amount Of Money At Stake For Each Taxpayer Does Not Relieve Plaintiffs Of Their Obligation To Exhaust Their Administrative Remedies

121 We likewise reject the notion that the de minimis amount of money at stake for each taxpayer (e., approximately $2.50 a year per membership) supports the conclusion that the irreparable harm exception to the exhaustion requirement is applicable. The court of appeals did not elaborate on this point and plaintiffs cite no legal authority, nor are we aware of any, that supports the proposition that when de minimis amounts of money are at stake, irreparable harm would result if exhaustion were required. We therefore reject plaintiffs' argument as inadequately briefed, researched, and presented. State v. Lusk, 2001 UT 102, ¶ 34, 37 P.3d 1103.

22 Moreover, we do not believe that the de minimis amounts of plaintiffs' potential refunds would reduce their incentive to individually seek a refund to the point that they would be irreparably harmed. A taxpayer requesting a refund at the administrative level can do so with little burden. According to the Commission, a hearing can be conducted and a taxpayer may receive a refund in a timely manner. There is no filing fee and a taxpayer can seek a refund pro se. Accordingly, plaintiffs would not suffer irreparable harm by satisfying their obligation to exhaust.

CONCLUSION

1 23 The court of appeals erred in concluding that plaintiffs were not required to exhaust their administrative remedies because they would suffer irreparable harm. Plaintiffs would not suffer irreparable harm because (A) the Commission had the authority to make a final determination regarding the issues presented before it, (B) offsetting overdue taxes is statutorily required, and (C) there has been no demonstration that when de minimis amounts of money are at stake requiring exhaustion would result in irreparable harm. Accordingly, we reverse and remand with instructions that plaintiffs' case be dismissed for lack of subject matter jurisdiction.

[ 24 Chief Justice DURHAM, Justice HOWE, Justice RUSSON, and Justice WILKINS concur in Associate Chief Justice DURRANT'S opinion.

      . Utah Code Ann. § 63-46a-12.1(2) (1997) provides as follows:
      (a) Except as provided in Subsection (b), a person seeking judicial review [of an administrative rule] under this section shall exhaust his administrative remedies by complying with the requirements of Section 63-46a-12 [for amending or repealing the rule] before filing the complaint.
      (b) When seeking judicial review of a rule, the person need not exhaust that person's administrative remedies if:
      (i) less than six months has passed since the date that the rule became effective and the person had submitted verbal or written comments on the rule to the agency during the public comment period;
      (i) a statute granting rulemaking authority expressly exempts rules made under authority of that statute from compliance with Section 63-46a-12; or
      (iii) compliance with Section 63-46a-12 would cause the person irreparable harm.

      . Although the court of appeals did not specify the context of the Commission's "threat," plaintiffs' brief indicates it occurred before the district court during a hearing on the Tax Commission's motion to dismiss. During this hearing, counsel for the Tax Commission indicated that whether the taxpayers pursued their claims for a tax refund administratively or in district court, the Commission would attempt to recover other taxes the taxpayers may owe:
      [If administrative procedures are followed,] each of these individuals would have to come in and have some type of a hearing to establish the individual amounts that they're entitled to. The Tax Commission is entitled to offset, before refund, any other taxes owed. It is my assertion and if this case moves forward it will be our counterclaim that the Tax Commission is entitled to a counterclaim against every claimant for any use tax that is not paid by them. Every time you buy something from Land[']s End or another catalog or over the internet, bring that into the State without paying the tax you're liable for use tax on that. If they haven't paid that use tax we're entitled to an offset for any amounts that they've purchased and ... there's no statute of limitations. We can go back as far as we can obtain records to determine what those amounts are and we're entitled to that offset.

      . The Commission also argues that prior to seeking judicial review of a rule, the "matters decided" language of Article XIII, Section 11(5) of the Utah Constitution requires a party to first bring the issue before the Commission to decide the matter. We need not reach this constitutional question, however, because we conclude that exhaustion is required on statutory grounds. Specifically, we conclude that because the "irreparable harm"" exception to the exhaustion requirement does not apply, plaintiffs are required to exhaust their administrative remedies within the Commission.

      . In Nebeker, the Utah State Tax Commission determined that Nebeker was deficient in payment of the Utah Special Fuel Tax and imposed a twelve percent interest rate on the amount he owed. Id. at 1 1. Nebeker filed suit alleging that the 12% interest rate violated the Utah Constitution. We explained that while ane administrative agencies do not generally determine the constitutionality of their organic legislation, ... the mere introduction of a constitutional issue does not obviate the need for exhaustion of administrative remedies'" because the Commission's decision in the administrative proceeding could avoid and moot the constitutional issue. Id. at ¶ 16 (quoting Johnson v. Utah State Ret. Office, 621 P.2d 1234, 1237 (Utah 1980)). We further explained that had Nebeker petitioned for a redetermination of his deficiency, the Tax Commission, pursuant to the Administrative Procedures Act, could have determined that the interest rate was unwarranted. If the Tax Commission agreed with Nebeker's claim, and redetermined Nebeker's taxation, the twelve percent interest rate would have been inapplicable. Id. at 117. Therefore, Nebeker could have avoided the constitutional questions if he had sought administrative review of his non-constitutional claims. Id.

      . Plaintiffs also assert in their brief that they "might" lose the right to reimbursement of a portion of the overpayment if required to exhaust their administrative remedies because of the three-year statute of limitations. They offer no legal argument in support of this assertion, however. The issue is therefore inadequately briefed, and we decline to address it. Lusk, 2001 UT 102 at ¶ 34.


text:
    2002 UT 90
    Robert LOW, Joel Palmer, Julia Redd, and Albert Steele, Plaintiffs and Appellants, v. CITY OF MONTICELLO, K. Dale Black, Douglas Allen, Julie Bronson, Kim Burtenshaw, Clyde Christensen, Evan Lowry, and C. Trent Schaffer, Defendants and Appellees.
    No. 20010191.
    Supreme Court of Utah.
    Aug. 30, 2002.

      R. Brent Stephens, Heather S. White, Salt Lake City, for plaintiffs.
    Randy T. Austin, Alexander Dushku, Matthew K. Richards, Salt Lake City, for defendants.
   RUSSON, Justice:

1 Robert Low, Joel Palmer, Julia Redd, and Albert Steele appeal from the trial court's order granting in part the motion for summary judgment filed by the City of Monticello (individually, "the city"), certain members of the city council, and certain city government officials (collectively, "Monticello City") and from the trial court's concomitant denial of Low's cross-motion for summary judgment. We affirm in part, reverse in part, and remand.

BACKGROUND

T2 In an April 24, 1979, special election, voters residing in the city authorized the city to sell its electrical power distribution system (the "system"). Thereafter, the Monticello city council enacted an ordinance on November 7, 1979, that sold the system to Empire Electric Association, Inc. ("Empire"), a private entity, and granted Empire the exclusive right to maintain and operate an electric distribution franchise. In the same ordinance, however, the city retained an option to repurchase the system, which provided:

This franchise shall be granted for a 20 year term from the date it is passed by the City Council and shall be automatically renewable at the end of said term for an additional 20 year term, unless the City exercises its right to repurchase the electrical system in accordance with the terms set forth in that certain agreement between the parties dated August 8 and September 9, 1979.

Empire and the city further agreed that if the city chose to exercise the repurchase option, the system repurchase price would be the system's fair market value at the time of repurchase.

13 Eighteen years later, on September 8, 1997, the city council passed resolution 1997-6 in which it resolved "that the City of Monticello shall pursue its option to repurchase the municipal electrical system" and to undertake a feasibility study regarding the possible repurchase. Thereafter, the city began discussing the fair market value with Empire.

T 4 In 1998, the city and Empire agreed to jointly retain a qualified firm to appraise the system, its real and personal property, customer base, capital investments, and other features influencing the fair market value. After the appraiser issued its report, the parties agreed that the fair market value of the system was $1,815,271.

¶ 5 After determining this base value, the city conducted a feasibility analysis to estimate the yearly costs and revenues associated with the system. The purpose of the feasibility analysis was to provide information to the city so that it could determine the benefits of repurchasing the system. According to the analysis, the city concluded that it could expect annual net revenues averaging between $200,000 and $300,000 through the year 2019 or, alternatively, that the city could reduce electric rates.

¶ 6 As the process continued, the city residents raised objections to the proposed repurchase. In particular, some of the objecting residents urged the city council to submit the decision of whether to repurchase the system to a public vote. The city council refused, explaining to the objecting residents that the decision of how the city fulfills its duty to supply utility services to its residents is an administrative decision not subject to referendum. On March 22, 2000, a petition for a referendum election on the issue, which was signed by 270 of the city residents, was presented to the city council. Nevertheless, that same day the city council again refused to hold a referendum and instead voted to adopt resolution 2000-2, which formally exercised the city's option.

¶ 7 On April 6, 2000, the city council adopted resolution 2000-3, which authorized the future issuance of bonds to finance the repurchase. Resolution 2000-8 specified that the aggregate principal amount of the bonds would be "not more than $3,000,000" and the maximum interest rate would be 6.75 percent per annum for a period of not more than twenty-six years. On April 12, 2000, the city notified the public of its intention to issue revenue bonds to finance the repurchase by publishing a notice of bonds to be issued in The Sam Juan Record, which is designated as the city's official newspaper. Consistent with resolution 2000-3, the notice stated that the principal amount would be just under three million dollars and the maximum interest rate would be 6.75 percent.

¶ 8 Then, on April 14, 2000, the San Juan County Clerk received eleven official packets petitioning city officials for a referendum on whether the city should purchase the system pursuant to resolution 2000-2. The clerk verified the signatures and certified that 855 of the 367 signatures were those of registered voters and that 349 of the signatures were those of registered voters who lived in the city. The city recorder concluded that the city had received sufficient signatures under Utah Code section 20A-7-601 to impel a referendum. Accordingly, the city attorney prepared a ballot title for the proposed referendum. Subsequently, however, on June 29, 2000, the city recorder withdrew the vote from the public, and the city informed the residents of the withdrawal, stating, "The decision to repurchase the utility is a purely administrative decision that is not the proper subject of a referendum within the meaning of Section 1, Article VI, of the Utah Constitution" and that a successful referendum would violate the contracts clauses of the United States and Utah Constitutions. Dissatisfied, certain city residents threatened a lawsuit.

¶ 9 During the pendency of the bond issue but before the city notified the residents that the referendum petition would be denied, the city attempted to attain interim sources of funding. At one point, the city negotiated an agreement with Zion's Bank in an attempt to finance the repurchase of the system on a short-term line of credit. On May 10, 2000, the city council approved entering into such a loan agreement.

¶ 10 Ultimately, Robert Low, Joel Palmer, Julia Redd, and Albert Steele (collectively, "Low") filed a verified complaint on May 12, 2000, initiating this lawsuit. In the verified complaint, Low alleged that (1) Monticello City contravened the Utah Municipal Bond and Notice of Debt Issuance Acts and (2) Monticello City violated the Open and Public Meetings Act. To redress these alleged statutory violations, Low prayed for injunctive relief to enjoin the repurchase of the system and declaratory relief that any final action taken to consummate the repurchase or to incur debt in connection therewith was void. The instigation of legal action led to the termination of the loan negotiations with Zion's Bank, and to date the city has not issued any bonds or otherwise incurred any debt to finance the repurchase. On July 12, 2000, the city filed an amended answer that included a counterclaim seeking a declaration that the city's exercise of the option was not the proper subject of a referendum.

¶ 11 Monticello City moved for summary judgment on all claims asserted in both the verified complaint and its counterclaim. Low filed a eross-motion for partial summary judgment. On January 16, 2001, the trial court granted Monticello City's motion with respect to Low's claim alleging violation of the Utah Municipal Bond and Notice of Debt Issuance Acts and with respect to Monticello City's counterclaim on the referendum issue. Further, the trial court certified this summary judgment order as a final order pursuant to rule 54 of the Utah Rules of Civil Procedure. The trial court reserved judgment on the Open and Public Meetings Act claim at that time, but ultimately resolved the claim in a sealed memorandum decision and a subsequent order on the memorandum decision.

¶ 12 Low appealed the trial court's order granting summary judgment to Monticello City. Low first argues that the trial court erred in granting summary judgment to Monticello City on the referendum issue because the trial court incorrectly concluded that the city's decision to purchase the system was administrative instead of legislative and the trial court erred in concluding that submitting resolution 2000-2 to the voters via a referendum would violate the contracts clauses of the United States and Utah Constitutions. In response, Monticello City contends that the city did not make a new law when it exercised the option to repurchase the system, but instead availed itself of an opportunity that previous legislative acts reserved. Monticello City also argues that holding a referendum after the city had already contracted to repurchase the system would contravene the contracts clauses of the United States and Utah Constitutions.

¶ 3 Further, Low contends on appeal that the trial court erred in concluding that Monticello City did not contravene the Utah Municipal Bond Act (the "Act") and that the trial court erred in concluding that the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -38 (1997 & Supp.2001), the ripeness doctrine, and the standing doctrine preclude Low's claim that Monticello City violated the Act. Monticello City counters that the city did not violate the Act because (1) the city was not required to publish notice under the Act, (2) the terms stated in the notice do not control the terms of the bonds ultimately issued, (8) the notice fully complies with Utah law and reflects the good faith parameters set by the city, and (4) the ripeness and standing doctrines preclude Low's claim that Monticello City violated the Act. Neither Low nor Monticello City has appealed the trial court's memorandum decision or the attendant order regarding Monticello City's alleged violation of the Open and Public Meetings Act, and therefore that issue is not before us on appeal.

STANDARD OF REVIEW

114 Summary judgment is appropriate 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." Utah R. Civ. P. 56(c); see also Bakowski v. Mountain States Steel, Inc., 2002 UT 62, 14, 52 P.3d 1179. "Whether the trial court properly granted summary judgment is a question of law that we review for correctness, according no deference to the trial court's legal conclusions." Bakowski, 2002 UT 62 at ¶ 14, 52 P.3d 1179. Additionally, when reviewing a grant of summary judgment, " 'we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party' " Ault v. Holden, 2002 UT 33, ¶ 15, 44 P.3d 781 (quoting DCM Inv. Corp. v. Pinecrest Inv. Co., 2001 UT 91, ¶ 6, 34 P.3d 785).

ANALYSIS

I. REFERENDUM

¶ 15 The first issue in this case is whether the city council's exercise of the option to repurchase the system is subject to a referendum. The trial court, in granting summary judgment to Monticello City, concluded that the city council's enactment of resolution 2000-2 was not subject to referendum because the enactment was an administrative, rather than a legislative, act and because "it would violate the contracts clause[s] of the Utah and United States Constitutions to allow a referendum that would have the possible effect of interfering with the 'contract' created between the City and Empire Electric by the passage of Resolution 2000-2." Low asserts that the trial court erred in both conclusions.

A. Failure to Appeal to Supreme Court within Ten Days

¶ 16 Initially, Monticello City argues that Utah Code section 20A-7-607(4)(a) bars any challenge to the city's refusal to hold a referendum because Low did not apply to the Utah Supreme Court to obtain an extraordinary writ to compel a referendum within ten days after the city clerk informed the city residents petitioning the city for a referendum that such referendum would not be held. Section 20A-7-607(4)(a) provides:

If the local clerk refuses to accept and file any referendum petition, any voter may apply to the Supreme Court for an extraordinary writ to compel him [or her] to do so within ten days after the refusal.

Utah Code Ann. § 20A-7-607(4)(a) (1998) (emphasis added); cf. id. §§ 20A-7-608(4), -610(4). The plain language of the statute specifically states that any voter may apply to this court for an extraordinary writ, and if the voter does so, the voter must apply within ten days. See id. § see also Holmes Dev., LLC v. Cook, 2002 UT 38, 25, 48 P.3d 895 (noting that use of word "may" indicates that individual is permitted to act in particular manner). The statute does not limit either the remedies that can be sought or the court in which those remedies can be pursued, but rather provides for a particular remedy and the limitations to which that remedy is subject.

¶ 17 Moreover, the referendum issue in this case was presented to the trial court within the ten-day limitation period set forth in the statute, although brought by Monticello City in its counterclaim. Rule 6(a) of the Utah Rules of Civil Procedure provides:

In computing any period of time prescribed or allowed ... by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.... When the period of time prescribed or allowed ... is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.

Utah R. Civ. P. 6(a). In addition, rule 6(e) provides:

Whenever a party has the right or is required to do some act ... within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the end of the prescribed period as calculated in subsection (a). Saturdays, Sundays and legal holidays shall be included in the computation of any 3-day period under this subsection....

Utah R. Civ. P. 6(e).

¶ 18 In a letter dated June 29, 2000, the city notified the sponsors of the referendum petition by mail that the petition would be denied. Assuming that the denial letter was mailed on Thursday, June 29, 2000, the ten day statutory limitation period would have expired on Friday, July 14, 2000, after five days are excluded from the computation according to rule 6(a): July 4 should be excluded as a legal holiday, and July 1, 2, 8, and 9 should be excluded as Saturdays and Sundays. Once three days are added under rule 6(e) to the end of the prescribed period as computed, any challenge could have been filed until and including July 17, 2000. Monticello City raised the referendum issue in its answer and counterclaim that was filed on July 12, 2000, before the expiration of the limitation period. Therefore, section 20A-7-607(4)(a) does not time-bar any challenge to the city's refusal to hold a referendum.

B. Contracts Clauses

¶ 19 Next we must address Monticello City's contracts clause contentions, which if dispositive would be a sufficient ground upon which to affirm the trial court's summary judgment order on the referendum issue, thus obviating the need to determine if resolution 2000-2 is subject to referendum. Monticello City contends that a referendum should not be held because a "referendum voiding Resolution 2000-2 would vitiate the currently binding contract between the City and Empire Electric" in violation of the contracts clauses of the United States and Utah Constitutions. The Contracts Clause of the United States Constitution provides: "No state shall ... pass any ... law impairing the obligations of contracts...." U.S. Const. art. I, § 10, cl. 1. Similarly, the contracts clause of the Utah Constitution provides: "No ... law impairing the obligation of contracts shall be passed." Utah Const. art. I, § 18. The contracts clauses' prohibitions of the passage of laws that impair the obligations of contracts extend to any form of legislative action, including referenda and other direct action by the people. See Ross v. Oregon, 227 U.S. 150, 163, 33 S.Ct. 220, 57 L.Ed. 458 (1918); Fuller-Toponce Truck Co. v. Pub. Serv. Comm'n, 99 Utah 28, 36-37, 96 P.2d 722, 726 (1989). Essentially, Monticello City contends that if a referendum is passed that abrogates resolution 2000-2, the voters would be passing a law impairing the city's obligation to repurchase the system under the city's contract with Empire.

120 However, we need not decide this question. A contract's obligation cannot be constitutionally impaired by the passage of a law if the contract itself relieves the parties of the obligations to perform, even if the duty to perform is rescinded by a clause in the contract that contemplates legislative action that would otherwise impair the obligations of contract. Nat'l Bldg. v. State Bd. of Educ., 85 N.M. 186, 510 P.2d 510, 512 (1973); see also Manhattan Bldgs., Inc. v. Hurley, 231 Kan. 20, 643 P.2d 87, 95 (1982). Indeed, contract obligations are not impaired if the contract itself relieves the parties of their obligations as a result of a provision of the contract that conditions the obligations to perform on the government's not passing a particular law. See Harper v. Great Salt Lake Council, Inc., 1999 UT 34, ¶ 14, 976 P.2d 1213 (stating that "[fjailure of a material condition precedent relieves the obligor of any duty to perform").

121 In the instant case, the city and Empire specifically agreed:

If a REFERENDUM election relating to the purchase of the SYSTEM is held ... and
() the result of the election is that MONTICELLO Resolution 2000-2 is upheld, then the closing shall be scheduled for 60 days from the date of the election; or
(i) the result of the election is that MONTICELLO Resolution 2000-2 is rescinded, and/or the citizens vote that the City shall not purchase the SYSTEM, then EMPIRE's franchise under Ordinance 79-11 shall be extended for 20 years pursuant to Ordinance 79-11.

According to the plain language of the parties' agreements, the repurchase of the system was expressly conditioned upon resolution 2000-2 being upheld in a referendum election if a referendum is held. In other words, the parties agreed in the contract itself that the continued contractual obligations regarding the purchase of the system would continue only if resolution 2000-2 is upheld by a referendum # a referendum were to be held and the parties would be relieved of their reciprocal respective duties to sell and purchase the system if the resolution were to be rescinded by referendum. Because the contract unequivocally conditioned the sale on resolution 2000-2 being upheld in a referendum if held, the contract obligations in this case cannot be impaired because the contract itself relieves the parties of the duties to perform if resolution 2000-2 is not upheld in a referendum. The very event that Monticello City claims would impair the obligations under the contract and would repudiate the parties' duties to perform is the same event which triggers the condition in the contract and upon which the continued duties to perform are conditioned if a referendum is ever held. See Nat'l Bldg., 510 P.2d at 512.

122 It is therefore impossible to contend that if a referendum repudiates resolution 2000-2, then the referendum would violate the contracts clauses of the United States and Utah Constitutions. Further, it is of no moment that this provision was in an agreement to extend the closing and not in the original contract because any agreement can be amended, modified, or altered by subsequent agreement of the parties, as is the case here. Copper State Leasing Co. v. Blacker Appliance & Furniture Co., 770 P.2d 88, 90 (Utah 1988); Rapp v. Mountain States Tel. & Tel. Co., 606 P.2d 1189, 1191-92 (Utah 1980). Therefore, a referendum election abrogating resolution 2000-2, if required in this case, see infra part I.C., does not contravene the contracts clauses of the United States and Utah Constitutions, and the trial court erred in concluding that the city properly refused to hold the referendum for this reason.

C. Option to Repurchase Not Subject to Referendum

123 Next it must be decided whether the city council's exercise of the option to repurchase the system is subject to a referendum. Article VI of the Utah Constitution vests the sovereign legislative power of the state in two separate bodies: (1) the state's legislatures, including city councils, and (2) the people of the state, which is exercised by initiative and referenda. Utah Const. art. VI, § 1; see also Gallivan v. Walker, 2002 UT 89, §28, 54 P.3d 1069. Section 1 of article VI provides in pertinent part:

The legal voters or such fractional part thereof as may be provided by law, of any legal subdivision of the State, under such conditions and in such manner and within such time as may be provided by law, |.. may require any law or ordinance passed by the low making body of said legal subdivision to be submitted to the voters thereof before such law shall take effect.

Utah Const. art. VI, § 1(2) (emphasis added); see also Utah Code Ann. § 20A-T-102(8) (1998); Wilson v. Manming, 657 P.2d 251, 252 (Utah 1982). If a petition for a referendum concerning an appropriate subject is properly made to public officials, then the public officials must set the issue for public vote. See Utah Code Ann. §§ 20A-7-607 to -608; see also Keigley v. Bench, 97 Utah 69, 72-78, 84, 89 P.2d 480, 481-82, 486 (1989) ("Keigley II"). However, public officials of a municipality can reject a referendum petition that is directed to a matter that is not subject to referendum. Salt Lake on Track v. Salt Lake City, 989 P.2d 680, 682 (Utah 1997).

124 Under article VI, only "law[s] and ordinance{[s]" enacted by "the law making body," or in other words, legislative enactments, of a municipality are to be referred to the municipality's voters, Utah Const. art. VI, § 1(2); see also Utah Code Ann. § 20A-7-102(8); Bigler v. Vernon, 858 P.2d 1390, 1391 (Utah 1998), and public officials can reject a referendum petition regarding non-legislative municipal action, see Salt Lake on Track, 989 P.2d at 682. Thus, the city council's exercise of the option to repurchase the system is amenable to referendum only if it is legislative in nature and not administrative in nature. Keigley II, 97 Utah at 76, 89 P.2d at 483; see also Wilson, 657 P.2d at 252; Bird v. Sorenson, 16 Utah 2d 1, 2, 394 P.2d 808, 808 (1964); Shriver v. Bench, 6 Utah 2d 329, 380-31, 3183 P.2d 475, 476 (1957). The formal label of a city council's action is not determinative; courts must look to the substance of the city council's action to determine if it is legislative or administrative. See Keigley v. Bench, 90 Utah 569, 573-74, 68 P.2d 262, 265 (19836) ("Keigley I"). In general, to be legislative, an ordinance must make a new law; to be administrative, an ordinance must execute or implement an existing law. Keigley II, 97 Utah at 77-78, 89 P.2d at 484; see also Citizen's Awareness Now v. Marakis, 873 P.2d 1117, 1122 (Utah 1994) ("The original enactment of a zoning ordinance is usually legislative and subject to referendum, while the implementation of that ordinance is typically administrative and inappropriate for referendum."). When legislative action is passed, it often authorizes public officials, including city councils, to exercise administrative powers and make administrative decisions. See Citizen's Aware-mess Now, 873 P.2d at 1122 (stating that implementation of ordinance enacted legislatively is administrative). To determine whether the city's decision to exercise the option to repurchase the system from Empire is subject to referendum, it must first be resolved whether the decision to purchase a power system in general is legislative in nature, and if it is, it must next be decided whether the exercise of the option to repurchase is subject to a referendum.

§25 Both parties assert various tests for determining whether particular action by a city council constitutes legislative or administrative action. However, application of the various competing tests is unnecessary in this case, because we have previously decided that the decision to purchase or acquire a power system, such as the system at issue here, is a purely legislative decision, which is subject to submission upon petition to the voters. We previously explained that

in the matter of acquiring or constructing a power plant, the legislative or lawmaking function would go at least to the extent of a decision to (1) acquire or construct, (2) the size of the plant as regards [sic] capacity, (8) the type of plant, [and] (4) the maximum eost of the plant. Perhaps all other matters may be executive or administrative, such as the make of generators, the material of which the plant is to be constructed, whether brick, stone, or concrete, and the other multitude of minutiae attendant on the building of such a plant.

Utah Power & Light, 94 Utah 208, 224, 74 P.2d 1191, 1200 (1987) (emphasis added); see also Keigley I, 90 Utah at 574-75, 63 P.2d at 265 (stating that resolution regarding issuing revenue bonds was legislative action subject to referendum because it was "calculated to bind Provo City to contract for or purchase an electric lighting and power system and to operate the same until the revenue bonds were paid" (dictum). Consequently, the original ordinance or enactment codifying the city council's decision to purchase a power system is subject to referral upon petition to the voters. CL Citizen's Awareness Now, 873 P.2d at 1122 ("'The original enactment of a zoning ordinance is usually legislative and subject to referendum...."); Wilson, 657 P.2d at 258 (same).

¶ 26 The question remains whether the resolutions exercising the option to repurchase the system in this case are legislative actions to purchase a power system or whether they are the administrative implementation of the original 1979 reservation of the option to repurchase the system. On April 24, 1979, city residents voted to sell the system, which was owned by the city at that time. It is unclear from the record before us whether the special election included the option to repurchase the system.

127 Then on November 7, 1979, the city council enacted an ordinance that sold the system to Empire and simultaneously retained for the city the option to repurchase. In this ordinance, the city council concurrently performed two distinct legislative functions: (1) selling the system, and (2) retaining the option to repurchase. The portion of the ordinance retaining the option to repurchase provided:

This franchise shall be granted for a 20-year term from the date it is passed by the City Council and shall be automatically renewable at the end of said term for an additional 20-year term, unless the City exercises its right to repurchase the electrical system in accordance with the terms set forth in that certain agreement between the parties dated August 8 and September 9, 1979.

(Emphasis added.) Retaining the option is tantamount to making the decision to purchase the system. When the decision to purchase is made, the city council enacts a law authorizing city officials to take the administrative action necessary to realize the purchase, such as to contract with the seller or to conduct feasibility analyses. Similarly, in this case, the city council made the policy-based legislative decision to retain for itself the option to repurchase, which authorized the city officials to take the same administrative action that they would take to effectuate the purchase of the system, e.g., contract with the seller or conduct feasibility analyses. In other words, by codifying the option in the ordinance, the city council legislated the ability to repurchase the system and reserved for itself the administrative power to accomplish the repurchase of the system, thus retaining ultimate control over the system and its ownership. The city council made the legislative decision at that time to reserve the power to repurchase the system at its sole discretion, albeit twenty years in the future.

¶ 28 As a legislative enactment, the retention of the option to repurchase was amenable to a referendum election. See Utah Code Ann. § 20-11-21 (1976); Bird, 16 Utah 2d at 2, 394 P.2d at 808; Keigley II, 97 Utah at 76, 89 P.2d at 488. Nevertheless, the city residents neither challenged the retention of the option nor sought a referendum on that decision, and because the residents did not challenge that ordinance within thirty days after the city council passed the ordinance, a referendum on this issue would now be untimely. Utah Code Ann. § 20-11-24 (1976); see also Bigler, 858 P.2d at 1892; Riverton Citizens for Constitutional Gov't v. Beck-stead, 631 P.2d 885, 886-88 (Utah 1981).

¶ 29 However, even though city residents never submitted a timely referendum petition to challenge the option to repurchase, it is unclear from the record whether the city residents were adequately notified of the option's retention when it was codified by ordinance in 1979. City councils must give city residents adequate notice of legislative enactments so that the residents can be cognizant of legislative enactments that they may want to challenge by a referendum and so that the residents initiate referendum procedures promptly. See Citizen's Awareness Now, 873 P.2d at 1128. To have a meaningful opportunity to exercise their constitutional right to a referendum on whether the city should have retained the option, the city must have afforded the voters adequate notice regarding the option when it was codified.

130 Ostensibly, the city prepared an official notice of sale of the system on July 3, 1979, signed by the city's mayor, that explained the city intended to reserve a right to repurchase the system. It is unclear from the record, however, whether this notice of sale was ever recorded or otherwise made public such that it would provide actual notice of the reservation of the option.

¶ 31 We therefore remand to the trial court. On remand, it must first be determined whether the special election held on April 24, 1979, incorporated the option to repurchase the system. If it did, then the residents have already exercised their right to a referendum regarding the option to repurchase, and therefore resolutions 1997-6 and 2000-2 were administrative exercises of that option as a matter of law. If the residents did not have the opportunity to vote on the retention of the option, however, then it must be resolved whether the city provided adequate notice to the residents concerning the retention of the option such that the residents had an opportunity to initiate a referendum. If it is determined that the city provided the residents adequate notice, then resolutions 1997-6 and 2000-2 merely executed the original 1979 legislative ordinance, and these resolutions would be purely administrative in nature, not subject to referendum.

II. UTAH MUNICIPAL BOND ACT

¶ 32 Low sought injunctive and declaratory relief in the verified complaint in which Low alleged that Monticello City violated the Utah Municipal Bond Act (the "Act"), Utah Code Ann. §§ 11-14-1 to -9 (1999), or in the alternative, that Monticello City violated the Notice of Debt Issuance Act, id. § 11-l14a-1. The trial court granted Monticello City summary judgment on this claim, concluding that (1) the Governmental Immunity Act shields Monticello City from this claim, (2) this claim is unripe, (8) Low lacks standing to pursue this claim, (4) the Act did not require Monticello City to publish a bond notice, and thus any alleged misstatement in the notice did not violate the Act, and (5) the Notice of Debt Issuance Act is inapplicable to this case. Low did not argue on appeal that the trial court erred in concluding that the Notice of Debt Issuance Act is inapplicable, and we will therefore not address it. See Holmes Dev., LLC v. Cook, 2002 UT 38, ¶¶ 54-55, 48 P.3d 895. Thus, we turn to whether the trial court properly granted Monticello City summary judgment on Low's claim that Monticello City contravened the Act by making misstatements in the notice of bonds to be issued.

T 33 "To the extent constitutionally permissible, municipalities ... may issue bonds payable solely from ... revenues" derived from the operation of revenue-producing facilities such as electrical power systems. Utah Code Ann. § 11-14-17 (1999); see also id. § 11-14-1(1)(k); Tribe v. Salt Lake City Corp., 540 P.2d 499, 505 (Utah 1975) (noting that revenue bonds "are to be paid, interest and amortization of the principal, by the revenues derived from the project"); Utah Power & Light Co. v. Ogden City, 95 Utah 161, 171, 79 P.2d 61, 66 (1938) (stating that holders of proposed revenue bonds can satisfy bonds only from earnings of proposed power plant). Before the municipality can issue revenue bonds under the Act to cover the power system acquisition costs, the municipality's governing body must pass a resolution providing for the issuance of the bonds, Utah Code Ann. § 11-14-14 (1999); see also id. § 11-14-17, but the Utah Code does not obligate the municipality to hold an election of the general public regarding the issuance of revenue bonds, id. § 11-14-13; see also Mun. Bldg. Auth. v. Lowder, 711 P.2d 273, 277 (Utah 1985). The resolution must "specify either the rate or rates of interest, if any, on the bonds or specify the method by which the interest rate or rates on the bonds may be determined while the bonds are outstanding." Utah Code Ann. § 11-14-14(1).

134 Low first argues summary judgment was inappropriate because the trial court erred in concluding that the Act did not require the city to publish the notice of bonds to be issued and that therefore Monticello City did not violate the Act in making any misstatements in an optional notice. It is unnecessary, however, to address this contention if it is determined that the notice of bonds to be issued published by the city did not contravene the Act. Although we may not directly address the trial court's conclusion with such a holding, we can affirm a trial court's order if the order " 'is sustainable on any legal ground or theory apparent on the record." " Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (quoting Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225 (quotation omitted)).

T35 In this case, after the city passed resolution 2000-3 authorizing the issuance of revenue bonds to cover the cost of acquisition of the system, the city published a notice of bonds to be issued. With respect to such notice of bonds to be issued, the Utah Code states:

In case of a resolution or other proceeding providing for the issuance of bonds, the governing body may, in lieu of publishing the entire resolution or other proceeding, publish notice of bonds to be issued, titled as such, containing:
(a) the name of the issuer;
(b) the purpose of the issue;
(c) the type of bonds and the maximum principal amount which may be issued;
(d) the maximum number of years over which the bonds may mature;
(e) the maximum interest rate which the bonds may bear, if any;
(f) the maximum discount from par, expressed as a percentage of principal amount, at which the bonds may be sold; and
(g) the times and place where a copy of the resolution or other proceeding may be examined, which shall be at an office of the issuer, identified in the notice, during regular business hours of the issuer as described in the notice and for a period of at least 30 days after the publication of the notice.

Utah Code Ann. § 11-14-21(8) (1999) (emphasis added).

€86 Low asserts that Monticello City violated subsection 11-14-21(8) of the Act because "the City misrepresented to its residents [both] in ... the notice of intent to issue and in the information on file with the City the maximum interest rate and maximum principal amount of the bonds." Subsection 11-14-21(8) provides that the municipality can give notice of a resolution authorizing the issuance of bonds "in lieu of publishing the entire resolution" because the subsection merely serves to afford persons in interest notice that a resolution was enacted authorizing the issuance of bonds and notice of the material contents of such resolution so that persons in interest have the opportunity to challenge the bonds. See id. § 11-14-21(8). Accordingly, a municipality makes misrepresentations in a notice of bonds to be issued only if the material terms of the bonds to be issued as set forth in the notice do not comport with the resolution authorizing the bonds.

T 37 In this ease, the notice of bonds to be issued provided that the aggregate principal amount of the revenue bonds authorized in resolution 2000-8 would not exceed three million dollars. The notice of bonds to be issued also provided that the interest rate on those bonds would not exceed 6.75 percent per annum. The notice of bonds to be issued simply notified the public of the contents of resolution 2000-38: The notice provided that the city would issue "not more than $3,000,000 aggregate principal amount of its Electric Revenue Bonds ... to bear interest at a rate or rates of not to exceed six and three-quarters percent (6.75%) per annum." Because the notice of bonds to be issued perfectly recapitulates resolution 2000-3, the notice does not contain any misstatements regarding the city's intent to issue bonds.

138 However, this is not to say that a municipality does not have a duty to issue the bonds in conformity with the resolution as enacted, and consequently, with the notice of bonds to be issued. Indeed, because a resolution defines the parameters delimiting the material terms of a bond issuance, a municipality acts within its authority in issuing revenue bonds only when those bonds accord with the resolution.

139 Therefore, because Monticello City did not make any misstatements in the notice of bonds to be issued, it did not violate the Act, and the trial court did not err in granting Monticello City summary judgment on Low's Utah Municipal Bond Act claim. Accordingly, there is no need to decide whether the trial court correctly determined that the Act did not require the city to publish notice. In addition, because the city did not violate the Act, Low's contentions that the trial court erred in granting Monticello City summary judgment under the Governmental Immunity Act, the ripeness doctrine, and the standing doctrine are now moot and those issues need not be resolved on appeal.

CONCLUSION

[ 40 In sum, while Low's referendum claim is not time-barred by Utah Code section 20A-T-607(4)(a), the trial court erred in concluding that a referendum vote regarding the propriety of repurchasing the system would violate the contracts clauses of the United States and Utah Constitutions. Further, we reverse the grant of summary judgment to Monticello City on the referendum issue and remand to the trial court for proceedings consistent with this opinion. Finally, the trial court correctly granted summary judgment to Monticello City on the Utah Municipal Bond Act claim because Monticello City did not violate the Act, and we therefore affirm the summary judgment order on that issue.

{[ 41 Associate Chief Justice DURRANT, Justice HOWE, Justice WILKINS, and Judge HANSON concur in Justice RUSSON's opinion.

1 42 Having disqualified herself, Chief Justice DURHAM does not participate herein; District Judge TIMOTHY R. HANSON sat.

      . When Low filed the verified complaint on May 12, 2000, the city had not yet denied its petition for a referendum, and Low stated in the verified complaint that a petition for a referendum election was pending before the city.

      . This provision of the Utah Constitution has been amended and is found at Utah Constitution article VLI, section 1(2)(b)(ii) (Supp.2001) (effective January 1, 2001). We apply the constitution as it existed at the time of the events giving rise to this suit, and we therefore apply the previous version. Taghipour v. Jerez, 2002 UT 74, n. 1, 52 P.3d 1252.

      . In 1979, Utah Code section 20-11-24 permii-ted only thirty days in which a party in interest could petition for a referendum on legislation passed by the governing body of a city or town. The present statutory scheme addressing this issue permits a referendum petition to be filed within thirty-five days after the local law is enacted. Utah Code Ann. § 20A-7-601(3)(a) (Supp. 2001).

      . The current version of this statute is codified at Utah Code Ann. § 20¥A-7-601(3) (Supp.2001), but because we apply the law as it existed at the time of the relevant events, we apply the 1976 statute. Taghipour v. Jerez, 2002 UT 74, n. 1, 52 P.3d 1252.

      . Low further asserts in the briefs that Monticello City made arrangements with Zion's Bank as an alternate method of financing the purchase of the system without providing proper nolice and without a public vote in violation of Utah Code section 10-7-16. However, because the transaction with Zion's Bank was never consummated, the issue is either unripe or moot, and we will therefore not address it. Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 16, 48 P.3d 968 (holding that this court will not issue opin-fons on issues that are moot); State v. Ortiz, 1999 UT 84, ¶ 3, 987 P.2d 39 (holding that this court will not issue opinions on issues that are unripe).