author: DURRANT, Justice.

text:
    2002 UT 30
    SALT LAKE CITY, Plaintiff and Appellant, v. Keith ROBERTS, Defendant and Appellee.
    No. 20000679.
    Supreme Court of Utah.
    March 15, 2002.

      Roger F. Cutler, Boyd A. Ferguson, Richard W. Daynes, Salt Lake City, for plaintiff.
    W. Andrew McCullough, Orem, UT, for defendant.
    Janelle P. Eurick, Stephen C. Clark, Salt Lake City, for amicus curiae.
   DURRANT, Justice.

INTRODUCTION

1 On writ of certiorari, plaintiff Salt Lake City seeks review of Salt Lake City v. Roberts, 2000 UT App. 201, 7 P.3d 789, in which a divided Utah Court of Appeals construed a Salt Lake City ordinance criminalizing sexual conduct in a "place open to public view" as requiring the sexual conduct occur in a place where it "is likely to be observed by a member of the public." The court of appeals adopted this definition from the case law of other jurisdictions. Because the Salt Lake City Code provides a definition establishing the meaning of a "place open to public view," we reverse the court of appeals' interpretation of the ordinance and remand with instructions to apply the codified definition.

BACKGROUND

I. EVENTS SURROUNDING DEFENDANT'S ARREST

T2 At approximately 8:45 p.m. on July 9, 1999, two undercover Salt Lake City police officers saw defendant pick up a woman. Roberts, 2000 UT App. 201 at ¶ 2, 7 P.3d 789. Believing the woman was a prostitute, the officers followed defendant's car to a parking lot behind a bar that was open for business. Id. Defendant parked his car behind two flatbed trucks in the rear of the parking lot. Id. Bordering the parking lot was "a two-story cement wall, a chain-link fence, and a closed business." Id. at T10. One of the officers later testified that, at the time, numerous patrons of the bar were entering and leaving the parking lot, and that anyone could walk back to the area of the lot where defendant was parked. Id. at 12.

T3 To avoid detection, the officers parked in front of the bar and proceeded to the parking lot on foot. One officer crawled beneath one of the flatbed trucks and emerged approximately 15 to 20 feet from defendant's car. Id. The officer later testified that this vantage point permitted him to "see into the back window" of defendant's car and observe defendant put his mouth to the woman's exposed breasts. Id. The officer further testified that when he approached the car, he also observed defendant's exposed genitals. Id. at 16.

I 4 The officers arrested defendant for disorderly conduct under Salt Lake City Code § 11.16.100 ("disorderly conduct ordinance"), which, in relevant part, makes it "unlawful for any person, while in a place open to public view, to willfully ... [engage in sexual conduct, alone or with another person[, or] ... [mJjake an intentional exposure of his or her genitals...." Salt Lake City Code § 11,16.100.

II TRIAL COURT PROCEEDINGS

T5 At defendant's bench trial, the officer who crawled beneath the truck conceded that the trucks somewhat concealed defendant's conduct, and that no member of the public would likely crawl beneath the truck to observe the conduct. Roberts, 2000 UT App. 201 at 12, 7 P.3d 789. However, the officer repeatedly stated that a person could have approached defendant's car and observed the conduct without crawling under the truck. Id.

16 The trial court found that defendant willfully engaged in sexual conduct with his companion. The court further found that defendant's conduct occurred in a "place open to public view" under the ordinance because it occurred in a public parking lot. Accordingly, the trial court found defendant guilty of disorderly conduct.

III. DEFENDANTS APPEAL TO THE UTAH COURT OF APPEALS

17 On appeal to the Utah Court of Appeals, defendant claimed that (1) differences between the state lewdness statute and Salt Lake City's disorderly conduct ordinance rendered the ordinance invalid under preemption principles, Roberts, 2000 UT App. 201 at 14, 7 P.3d 789; (2) the facts did not support a finding that he willfully engaged in sexual conduct with another person, id. at T5; and (8) the trial court misconstrued the ordinance in concluding that his conduct occurred in "a place open to public view." Id. at 17.

T8 The court of appeals rejected defendant's first two claims. In reviewing his first claim, the court of appeals noted that "ordinances passed by municipalities are valid unless they are inconsistent or conflict with state law." Id. at T 4 (citing, inter alia, Redwood Gym v. Salt Lake County Comm'n, 624 P.2d 1188, 1144 (Utah 1981)). For guidance on what constitutes an inconsistency, the court of appeals relied on Salt Lake City v. Allred, 20 Utah 2d 298, 299, 437 P.2d 434, 435 (1968), in which we held that "[mJunicipal ordinances and state law are not inconsistent when they share a common purpose and are 'closely related in subject matter. " Roberts, 2000 UT App. 201 at ¶ 4, 7 P.3d 789 (quoting Allred, 20 Utah 2d at 302, 437 P.2d at 437). Applying the Allred standard to the disorderly conduct ordinance and the state lewdness statute, Utah Code Ann. § 76-9-702 (1996), the court of appeals concluded that the two provisions share the common purpose of "prohibitling] sexual behavior in places where the public may be affronted or offended." Id. at 14 (applying Allred ). Having found no conflict between the state lewdness statute and the disorderly conduct ordinance, the court of appeals upheld the validity of the ordinance. Id.

19 The court of appeals also rejected defendant's claim that the evidence did not support the trial court's conclusion that he engaged in "sexual conduct" within the meaning of the ordinance. Id. at TT 5-6. Reviewing this finding for clear error, the court of appeals concluded that the arresting officer's undisputed trial testimony that defendant kissed the exposed breasts of his female companion and exposed his genitals was "sufficient to show beyond a reasonable doubt that defendant 'engaged in sexual conduct' within the meaning of the ordinance." Id. at I 6.

110 As to defendant's third claim, the court of appeals noted that, in concluding defendant's conduct occurred in a "place open to public view," the trial court evidently did not consider the totality of the cireum-stances, but only the fact that it occurred in a place accessible to the public:

The [trial] court apparently relied [solely] upon the fact that the conduct took place in a public parking lot, stating at [defendant's bench] trial, "I think the problem is that the language [of the ordinance] is tough to deal with but I am not going to struggle with it too much. It was a public parking lot, in my view, it was [therefore] open to public view."

Id. at 111 (first and second alterations added).

111 Reviewing the trial court's interpretation for correctness, id. at T7, the court of appeals first noted that no Utah appellate court has defined "open to public view" as used in the ordinance. Id. at 18. For guidance, the court turned to case law from other Jurisdictions interpreting statutes criminalizing sexual activity in a "public place." Id. at 118-9. In contrast to the trial court's reliance solely on the fact that defendant's conduct occurred in a public parking lot, these jurisdictions have interpreted "public place" as requiring a "fact-intensive" inquiry into "whether the conduct is likely to be observed by the public." Id. at 141 8-9, 11.

1 12 Adopting this interpretation, the court of appeals ruled that the trial court erred in considering only the fact that defendant's conduct occurred in a public parking lot. Id. at T 11. From the record before it, however, the court of appeals could not determine as a matter of law whether or not defendant's conduct occurred in a place likely to be observed by a member of the public. See id. at Accordingly, the court remanded the case with instructions that the trial court make this determination. Id. at TT 12, 13.

{13 One judge dissented from the majority's interpretation of a "place open to public view" and its decision to remand. Id. at TT 15-18 (Beneh, J., dissenting in part). Specifically, the dissent contended that, in interpreting this language, instead of relying on "case law from foreign jurisdictions," id. at 17, the majority should have drawn upon the court's significant experience from the Fourth Amendment search and seizure context "in assessing what is open to public view." Id. at 116. In the Fourth Amendment context, the dissent noted, Utah courts "have consistently allowed officers to seize evidence when the evidence is in open view from a position that is lawfully accessible to the public." Id. (citations and internal quotations omitted) (emphasis added). This standard, reasoned the dissent, better comports with the plain language of the ordinance than the majority's interpretation, which the dissent believed "import[ed]" into the ordinance the "likely [to be] seen" requirement. Id. at 17. Applying its interpretation to the facts of the case, the dissent concluded that, as a matter of law, defendant's sexual conduct occurred in a "place open to public view" because "the officer witnessed this sexual conduct from a place lawfully accessible to any member of the general public-as he stood in the public parking lot." Id. Thus, the dissent would have affirmed defendant's conviction without remand. Id. at T 18.

' 14 We granted Salt Lake City's petition for certiorari, and now reverse the court of appeals' interpretation of a "place open to public view" and remand.

STANDARD OF REVIEW

115 "When exercising our certiora-ri jurisdiction, we review the decision of the court of appeals and not that of the trial court. Inasmuch as the issues before this court are questions of law related to statutory construction, we review the court of appeals' ruling for correctness." Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 13, 9 P.3d 762 (citations omitted).

ANALYSIS

I. THE COURT OF APPEALS ERRED IN NOT RELYING ON THE DEFINITION OF A "PLACE OPEN FOR PUBLIC VIEW" IN THE SALT LAKE CITY CODE

T16 The section of the Salt Lake City Code that defendant was found guilty of violating, section 11.16.100 ("disorderly conduct ordinance"), provides in relevant part as follows:

11.16.100 Urinating in public and other disorderly conduct.
It is unlawful for any person, while in a place open to public view, to willfully:
B. Engage in sexual conduct, alone or with another person ...
C. Make an intentional exposure of his or her genitals ...

Salt Lake City Code § 11.16.100 (1996) (emphasis added).

117 On certiorari, Salt Lake City argues that the court of appeals erred in interpreting a "place open to public view" as used in the ordinance. Specifically, Salt Lake City contends that, in interpreting this language, the court of appeals should not have relied on the case law of other jurisdictions, but instead on the definition provided by the Salt Lake City Council. We agree.

118 In interpreting legislation, "our primary goal is to give effect to the [legislative] intent in light of the purpose" of the ordinance. See Evans v. State, 963 P.2d 177, 184 (Utah 1998). When a legislative body provides a section containing the definitions of terms, and specifies the legislation to which the definitions apply, this demonstrates the body's intent that the "definitions establish meaning where the terms appear" within the legislation. 2A Sutherland's Statutory Construction § 47.07 (6th ed.2000).

T19 The Salt Lake City Code contains a definition section in which the Salt Lake City Council defined a "place open for public view" for purposes of the chapter encompassing the disorderly conduct ordinance:

11.16.010 Definitions:

As used in this chapter, unless context requires otherwise:
M. - "Place open for public view" means an area capable of use or observance by persons from the general community, where an expectation for privacy for the activity engaged in by individuals is not reasonably justified.

Salt Lake City Code § 11.16.010(M) (1996) (emphasis added).

T 20 Thus, had the drafters of the disorderly conduct ordinance used the exact words of the defined phrase (Le., "place open for public view" (emphasis added)), they clearly would have intended the phrase have the meaning provided by the definition in section 11.16.010(M). However, the operative phrase in the disorderly conduct ordinance differs slightly from the phrase defined in section 11.16.010(M): specifically, the operative phrase contains the preposition "to" instead of the preposition "for" - Id. § 11.16.100 (criminalizing certain conduct when it occurs in a "place open to public view" (emphasis added)).

121 As a result, we must decide whether, despite this difference, the city council intended to apply the definition in section 11.16.010(M) to the phrase "place open to public view" in the disorderly conduct ordinance. To thus apply the defined phrase in section 11.16.010(M) would require, in effect, the substitution of "for" in place of "to" in the operative phrase in the ordinance.

Although courts generally presume a legislative body chooses its words advisedly, "[a] majority of cases permit the substitution of one word for another if necessary to carry out the legislative intent or express clearly manifested meaning." 2A Sutherland's Statutory Construction § 47.86 (6th ed.2000) (citing, inter alia, White v. Rio Grande W. Ry. Co., 25 Utah 346, 71 P. 593 (1903) (substituting "causes of actions" for "businesses" in former Article VIII, Section 5 of Utah Constitution)). "[Plroperly understood, and exercised with due caution, [substitution of one word for another] is not judicial legislation, but is simply a method of arriving at legislative intent defectively expressed." Id. (quoting Gill v. Miller, 94 Ill.2d 52, 67 Ill.Dec. 850, 445 N.E.2d 330, 334 (1983)).

123 There are strong indications that the city council intended that the definition of "[a] place open for public view" in section 11.16.010 apply to the disorderly conduct ordinance. The preamble of section 11.16.0110 states that the definitions it provides are for terms and phrases "(als used in this chapter," which indicates that the drafters believed they had used the defined terms and phrases somewhere within chapter 11.16. Contrary to this apparent intent, the defined phrase "[a] place open for public view" is not used in the chapter. However, the phrase "a place open to public view," which differs from the defined phrase only by a preposition, is used twice, both in the disorderly conduct ordinance and in section 11.16.020(A)(6). Salt Lake City Code § 11.16.020(A)(6) (1996) (prohibiting "meretricious display[s] in or near any public place, any place frequented by the public, or any place open to the public view" (emphasis added)). Under the circumstances, it appears the city council intended that section 11.16.010's definition of a "place open for public view" apply to a "place open to public view" in the disorderly conduct ordinance, but defectively expressed this intent by using different prepositions. Accordingly, we hold that the definition of a "place open for public view" establishes the meaning of a "place open to public view" in the disorderly conduct ordinance.

II. INTERPRETATION OF THE CITY COUNCILS DEFINITION

124 Based on the definition in the Salt Lake City Code, for defendant's sexual conduct to have occurred in a "place open to public view," the sexual conduct must have occurred (1) in "an area capable of use or observance by persons from the general community," and (2) "where an expectation for privacy for the activity engaged in by individuals is not reasonably justified." Salt Lake City Code § 11.16.010(M) (1996).

[25 Neither party contends that the definition's first element requires additional interpretation. Regarding the definition's see-ond element, Salt Lake City echoes the views of the court of appeals' dissent and argues that, in determining what the city council intended by an "expectation for privacy" that "is not reasonably justified," we should rely on case law from the Fourth Amendment search and seizure context. Under this case law, observations by law enforcement of activity in "open view" from a position "lawfully accessible to the public" do not infringe upon an individual's "reasonable expectation of privacy," and thus do not constitute a search under the Fourth Amendment. State v. Lee, 633 P.2d 48, 51 (Utah 1981) (emphasis added) (ruling, in Fourth Amendment search and seizure context, that a person does not have a reasonable expectation of privacy in an automobile parked in a parking lot open to the public). We reject Salt Lake City's argument for two reasons.

126 First, interpreting the definition's second element as turning on whether law enforcement observed the conduct from a "position lawfully accessible to the public" would render it almost identical to the first requirement, ie., whether the conduct oc-eurred in "an area capable of use or observance by persons from the general community" Salt Lake City Code § 11.16.010(M) (1996). Thus, under Salt Lake City's proposed interpretation, the "expectation for privacy" element would become largely superfluous. An interpretation of statutory language that renders other parts of the statute superfluous is to be avoided. State v. Morrison, 2001 UT 73, ¶ 11, 31 P.3d 547.

127 Second, in the absence of evidence of intent to the contrary, the words of a statute or ordinance are given their common meaning. Ambassador Athletic Club v. Utah State Tax Comm'n, 27 Utah 2d 377, 378, 496 P.2d 883 (Utah 1972) (holding that, because "legislature did not define the word 'hotel' " in statute taxing proceeds from the rental of rooms, "it must be understood to have a meaning generally understood and accepted by the public"). The Salt Lake City Council did not evidence an intent to depart from the common meaning of the terms in the second element and adopt a definition from a different legal context. Turning first to the language of the ordinance and the definition, we note that the city council did not express an intent to adopt the Fourth Amendment definition. In addition, in Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 LEd.2d 214 (1984), in which the United States Supreme Court held that law enforeement's entry onto open fields to observe marijuana plants was not a Fourth Amendment "search," the Supreme Court downplayed the existence of a correlation between a "reasonable expectation of privacy" and the viewing of the conduct by the general community:

[Whe reject the suggestion that steps taken to protect privacy establish that expectations of privacy in an open field are legitimate. It is true, of course, that [the alleged drug growers], in order to conceal their criminal activities, planted the marihuana upon secluded land and erected fences and "No Trespassing" signs around the property. And it may be that because of such precautions, few members of the public stumbled upon the marihuana crops seized by the police. Neither of these suppositions demonstrates, however, that the expectation of privacy was legitimate in the sense required by the Fourth Amendment. The test of legitimacy is not whether the individual chooses to conceal assertedly "private" activity. Rather, the correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment.

Id. at 182-88, 104 S.Ct. 1785 (emphasis added). Thus, because a "reasonable expectation of privacy" in the Fourth Amendment sense is a term of art that embodies policies unrelated to the purpose of the disorderly conduct ordinance, the city council likely did not intend for Fourth Amendment case law to establish the meaning of the terms used in the ordinance. See Evans v. State, 963 P.2d 177, 184 (Utah 1998) (stating that "our primary goal [in interpreting legislation] is to give effect to the [legislative] intent in light of the purpose" of the legislation (emphasis added)). Instead, courts should apply the terms in the definition according to their common meaning.

III. APPLICATION OF THE CITY COUNCIL'S DEFINITION

128 Applying the definition of a "place open for public view" according to the common meaning of its terms, we conclude that defendant's conduct satisfied the definition's first element, but we remand for a determination of whether his conduct satisfied the second element.

A. Whether Defendant's Sexual Conduct Occurred In An "Area Capable Of Use Or Observance By Persons From The General Community"

129 To satisfy the definition's first element, defendant's sexual conduct must have occurred in an "area capable of [either] use or observance by persons from the general community." Salt Lake City Code § 11.16.010(M) (1996). 'We conclude that the "area" in which defendant engaged in sexual conduct, i.e., the interior of a car located in the parking lot of a bar was "capable of ... observance by persons from the general community." Id. Specifically, based on the common meaning of the word "capable," defendant's conduct in the car's interior was "capable of ... observance" if persons from the general community were "able" to observe the conduct. See Webster's Third International Dictionary 380 (1986). This was certainly the case. According to the officer's undisputed trial testimony, "anyone" could have reached the officer's vantage point on foot. Moreover, as noted by the court of appeals, the trial court concluded that defendant was in a "public" parking lot, which indicates that it was used by "persons from the general community." Salt Lake City Code § 11.16.010(M) (1996). Accordingly, we conclude that, as a matter of law, defendant engaged in sexual conduct in "an area capable of ... observance by persons from the general community."

B. Whether Defendant Had An "Expectation For Privacy" In The Sexual Conduct That Was "Reasonably Justified"

130 The second element of the definition of a "[pllace open for public view" requires a determination of whether "an expectation for privacy for the activity engaged in by individuals is reasonably justified." Salt Lake City Code § 11.16.010(M). In this regard, we conclude that the trial court's limited factual findings do not permit us to determine whether defendant's conduct satisfied the second element, which requires an inquiry into the totality of the relevant cireumstances. We therefore remand with instructions that the trial court make this determination according to the common meaning of the words of the second element. See, eg., State v. Hansen, 857 P.2d 978, 982 (Utah Ct.App.1998) (remanding for additional findings because trial court's factual findings did not allow appellate court to determine whether the legal standard was satisfied). If the court finds that defendant's expectation of privacy was not reasonably justified, the court should find defendant guilty of disorderly conduct as it has already been determined that his conduct satisfied the other elements of this crime.

CONCLUSION

31 The court of appeals erred in relying on case law from other jurisdictions instead of the city council's definition in interpreting "a place open to public view" as used in the Salt Lake City disorderly conduct ordinance. Although we conclude that defendant's conduct satisfied the definition's "capable of ... observance" requirement, we remand for a determination regarding the definition's see-ond requirement, i.e., whether defendant's "expectation of privacy for the [sexual conduct was] reasonably justified."

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

      . Evidently, neither party brought this definition to the court of appeals' attention, because the court neither cited nor alluded to it. Salt Lake City cites this definition, apparently for the first time, in its appellate brief, and it clearly is a better indicator of the city council's intended meaning of a "place open for public view"" than judicial interpretations of "public place" from other jurisdictions.
      Defendant argues that because Salt Lake City did not rely on this definition before either the trial court or the court of appeals, the City may not rely on this definition before this court. We disagree. The definition provided by the Salt Lake City Council is a "pertinent and significant authorit[y]" on the issue of the intended meaning of "a place open to public view," and thus either party could properly bring it to our attention, even after oral argument. Utah R.App. P. 24G) (providing that "[when pertinent and significant authorities come to the attention of a party after that party's brief has been filed, or after oral argument but before decision, a party may promptly advise the clerk of the appellate court, by letter setting forth the citations"). Utah R.App. P. 24(i). To disregard the definition provided by the Salt Lake City Council just because the parties failed to inform the lower courts of its existence would be contrary to our primary goal in interpreting legislation: to discern the intent of the drafters. See generally Evans v. State, 963 P.2d 177, 184 (Utah 1998).

      . The trial court has already determined that defendant willfully engaged in "sexual conduct" within the meaning of the disorderly conduct ordinance. The court of appeals affirmed this ruling, Roberts, 2000 UT App. 201 at ¶¶ 5-6, 7 P.3d 789, and defendant does not challenge this ruling before this court. In addition, we have concluded that defendant's conduct satisfied the first of the two elements set forth in the definition of a "place open for public view." Supra 129. Thus, in order for the trial court to determine whether defendant is guilty of disorderly conduct, it need assess only whether defendant's conduct satisfied the definition's second element. Salt Lake City Code §§ 11.16.010(M), 11.16.100 (1996).


source: Caselaw Access Project

author: DURHAM, Justice.

license: Public Domain

text:
    2002 UT 31
    WESTSIDE DIXON ASSOCIATES LLC, Petitioner, v. UTAH POWER & LIGHT COMPANY/PACIFICORP, Utah Public Service Commission, Respondents.
    No. 20000731.
    Supreme Court of Utah.
    March 19, 2002.

      J. Kent Holland, Salt Lake City, for petitioner.
    Mark E. Hindley, John M. Eriksson, Sandy Mooy, Salt Lake City, for respondents.
   DURHAM, Justice.

INTRODUCTION

1 1 This case arises from the installation of a master meter for the provision of electric service by petitioner Westside Dixon Associates, LL.C. (Westside) to its condominium units in the Broadway Lofts Building (Broadway Lofts). Westside challenges the determination of the Utah Public Service Commission (the PSC) that it was prohibited from installing a master meter under Utah Admin. Code Rule 746-210, and that no exemption applied to it under the rule. We affirm.

BACKGROUND

T2 The instant petition for review arises from the conversion of the Broadway Lofts building in downtown Salt Lake City from a warehouse into a building containing a mix of commercial and retail space on the lower level and individual residential condominium space on the upper levels. The building, originally known as the J.G. MeDonald Building, was built in 1901. In December 1999, a "gut" renovation of the Broadway Lofts was substantially completed, including the installation of separate heating and cooling systems for each unit. There is no central boiler or central chiller for the condominium units. In July, 1998, Westside, the project's developer, obtained a building permit as required by Salt Lake City to undertake the renovation.

T3 As part of the conversion of the building, Westside installed a "master meter" system for metering electrical service to the condominiums. Master metering is the practice of metering and billing the electric usage of multiple tenants or individuals through one utility meter. Westside's metering system is also "sub-metered." Sub-metering is the practice whereby the tenant or individual is metered and billed by an entity other than the utility. Westside contracted with Relms, Inc. (Relms) to provide the sub-metering and billing for the condominium owners.

T4 Douglas Marks (Marks), PacifiGorp's operations manager, testified before the PSC that PacifiCorp received two Requests for Electric Service from Westside for the provision of electricity to the Broadway Lofts, but neither requested master metering. Both requests stated that there were 101 units involved, thus suggesting that PacifiCorp would individually meter all the condominium units. While Westside contends that it submitted plans to PacifiCorp in February 1998 "showing master metering/sub metering," Westside did not introduce these plans into evidence before the Commission. Marks testified that Westside submitted an electrical site plan, but that it did not show or suggest master metering.

T5 During the construction of the condominium units at the Broadway Lofts, Pacifi-Corp supplied power to the contractor. As the project neared completion, the contractor informed Westside that arrangements for the permanent provision of electricity would have to be made. On December 10, 1999, Pacifi-Corp's attorney wrote a letter to Westside's attorney informing him that the master metering system in place at the Broadway Lofts was forbidden under the Commission's rules. PacifiCorp stated that electricity would be provided to the condominiums as long as PacifiCorp could install its own meters.

T 6 In light of Westside's refusal to permit PacifiCorp to install meters, on December 21, 1999, PacifiCorp informed Westside that power to the condominium units would be terminated on January 3, 2000. The termination was based on Westside's non-compliance with Utah Administrative Rule 746-210 and PacifiGorp's Electric Service Regulation No. 7. In response, Westside filed a Formal Complaint with the PSC on January 4, 2000. The PSC adopted the Report and Order of the administrative law judge, who found that Westside was in violation of Rule 746-210, and did not qualify for an exemption under the rule. Upon Westside's request for review, the PSC granted it a second opportunity to establish that it qualified for an exemption under Rule 746-210. Finding that Westside failed again to support its claimed entitlement to an applicable exemption, the PSC dismissed the complaint. Westside petitioned this court for judicial review.

STANDARD OF REVIEW

T7 The Utah Administrative Procedures Act, Utah Code Ann. section 63-46b-1 to -22 (1997) (UAPA), governs the appropriate standards of review of an agency determination. When reviewing an agency action that is "contrary to a rule of the agency," Utah Code Ann. § 63-46b-16(4)(h)(i), we apply an intermediate standard of review, deferring to an agency's interpretation as long as it is both reasonable and rational. Thorup Bros. Constr. v. State Tax Comm'n, 860 P.2d 324, 327 (Utah 1993), see also SEMECO Indus. v. State Tax Comm'n, 849 P.2d 1167, 1174 (Utah 1993) (Durham, J., dissenting). This standard applies to the first issue argued as agency error by Westside, regarding the interpretation of Utah Admin.Code Rule 746-210.

18 As to the second and third claims of error, regarding the determination of whether an exemption applied to Westside according to the terms of the statute and whether or not any waiver was made, section 63-46b-16(4)(g) of UAPA is implicated. That subsection of the statute may permit granting relief to an appellant who "has been substantially prejudiced" if "the agency action is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court[.]" Id. These issues are also governed by a reasonableness standard, in view of the fact that the Commission, "by virtue of its experience or expertise, is in a better position than the courts to give effect to the regulatory objective to be achieved." Morton Int'l, Inc. v. State Tax Comm'n, 814 P.2d 581, 586 (Utah 1991); SEMECO, 849 P.2d at 1172.

ANALYSIS

I. PUBLIC UTILITY REGULATORY POLICIES ACT

T9 Utah Administrative Code Rule 746-210, whose interpretation and application is at the heart of this dispute, is derived from the federal Public Utility Regulatory Policies Act of 1978, 16 U.S.C. section 2601-2645 (2000) et seq. (PURPA). PURPA's aims include "conservation of energy" and "optimization of the [electric utility] efficiency." 16 U.S.C. § 2611. PURPA's stance on master metering is unambiguous. It states, "to the extent determined appropriate under section 2625(d) of this title, master metering of electric service in the case of new buildings shall be prohibited or restricted to the extent necessary to carry out the purposes of this chapter." 16 U.S.C. § 2623(b)(1)(2000) (emphasis added). Section 2625(d) states:

separate metering shall be determined appropriate for any new building for purposes of section 2628(b)(1) of this title if (1) there is more than one unit in such building; (2) the occupant of each such unit has control over a portion of the electric energy used in such unit; and (8) with respect to such portion of electric energy used in such unit, the long-run benefits to the electric consumers in such building exceed the costs of purchasing and installing separate meters in such building.

16 U.S.C. § 2625(d).

110 In most instances, master metering of an entire building with multiple tenants through only one meter would be appropriate if a central boiler or chiller were servicing all the units. Utah Admin. Code Rule 746-210-2(A)(2). - Otherwise, master metering is discouraged because an individual electric consumer is not billed exclusively for the consumer's own use of electricity. PURPA's purpose is to encourage conservation by, for instance, rewarding consumers who turn off unnecessary lights, purchase energy efficient appliances, or conserve heat or air conditioning. If consumers cannot track their use of electricity, as occurs with master metering, their motivation to conserve is greatly diminished. Additionally, even if users receive individual bills as a result of sub-metering, such metering is problematic because consumers in a master metered building are not customers of a regulated utility. If any dispute arises between the tenant and the landlord, neither the PSC nor the utility can offer assistance. Utah Admin. Code Rule 746-210-5.

T11 In order to implement PURPA, in 1981 the PSC adopted the PURPA standards, and subsequently enacted Utah Administrative Code Rule 746-210.

A. "New Building" under PURPA

{12 Rule 746-210 prohibits master metering in "new buildings." Utah Admin. Code Rule 746-210-1(A). Because the Broadway Lofts building was originally built in 1901, Westside has argued that it is not bound by the master metering prohibition. The term "new building," however, is defined as: "[1] those structures ... for which a building permit is obtained on or after August 1, 1984 or [2] if no permit is required, for which construction is commenced on or after August 1, 1984." Rule 746-210 3(A) (emphasis added). According to the plain meaning of the definition provided in the rule, the Commission found that the Broadway Lofts was indeed a "new building," inasmuch as Westside was "required to obtain a building permit to convert the warehouse into a condominium, which it did on or about July 1, 1998." The PSC's interpretation of the rule, and its application of the facts found to the rule, was reasonable and rational. Westside's argument that the PSC incorrect ly found that it was a "new building" under rule 746-210 fails.

B. Exemption under Rule 746-210

113 Westside next argues that the PSC erred concluding, first at the evidentiary hearing and a second time in its response to the PSC's Order Granting Review, that Westside did not qualify for an exemption under rule 746-210-8's specific benefit-to-cost exemptions. Such exemptions are contemplated when the goals of PURPA would not be served. Utah Admin. Code Rule 7A6-210-2, -8.

14 To qualify for a case-specific exemption from the master metering prohibition, a party must engage in a two-step procedure: (1) it must make a request in writing to the utility using a benefit-to-cost ratio analysis showing that master metering costs are less than separate metering costs, and (2) in employing the methodology specified in the rule, which requires a showing that "the benefit-to-cost ratio is less than one with respect to separate metering using the cost effectiveness test guidelines," it must "demonstrate that the long-run benefits of individual metering to the electric consumer are less than the costs of purchasing and installing separate meters." Utah Admin. Code Rule 746-210-8. In the event that a utility denies the exemption request, the PSC is empowered to "initiate ... proceedings ... arising out of an informal complaint." Utah Admin. Code Rule 746-210-4. The PSC is reminded that not only must the benefit-to-cost determination be made, but that the customer must also show "that a granted exemption status will be consistent with the stated purposes of Title I of PURPA; i.e., conservation, efficien-ey and equity." Id.

1 15 The PSC found that Westside failed to meet its burden on both of the rule's requirements. First, Westside did not "[make] a written request to PacifiCorp for permission to master meter or sub-meter the condominiums." Second, Westside did not satisfy the burden of proof placed upon it by the rule to "demonstrate that the long-run benefits of individual metering to the electric consumer are less than the costs of purchasing and installing separate meters." Utah Admin. Code Rule 746-210-3. At the evidentiary hearing, the PSC determined that Westside "made no attempt" to apply the rule's formula, and after reviewing additional information submitted by Westside after the grant of review, the PSC concluded that Westside "has failed to submit a study meeting the requirements" of Rule 746-210-3.

116 Review of the record reveals that Westside failed: (1) to show that a difference in energy consumption at the Broadway Lofts would result if the condominiums were master metered rather than separately metered, as required by Rule 746-210-8(B); (2) to quantify the difference in installed cost between master and individual metering, as required by Rule 746-210-8(D); or (8) to present a cost-to-benefit ratio equal to the present worth of benefits described in section (B) divided by the present worth costs de-seribed in section (D). see rule 746-210-8(E). Contrary to the PSC's directive, Westside utilized an inapplicable rate schedule in its attempt to satisfy the cost-to-benefit analysis required by the rule and entirely failed to establish an evidentiary basis for an exemption.

117 Finally, the PSC found as a matter of law that Westside could not meet its burden to establish an exemption, because Westside itself installed individual meters. The rule requires that the customer demonstrate that "the long-run benefits of individual metering to the electric consumer are less than the costs of purchasing and installing separate meters.... The benefits ... shall reflect the difference in electricity use which results when separate metering is utilized rather than master-metering." Utah Admin. Code Rule 746-210-3 and 3(B). Westside cannot fulfill the requirements of the rule because it cannot show that the "benefits" of its metering system are less than the "costs" of sub-metering because the Broadway Lofts already have sub-meters in place.

{18 The record demonstrates that the PSC was reasonable in its finding that West-side failed to make the necessary showing under the rule to qualify for an exemption to the master metering prohibition, and that its ruling was supported by substantial evidence.

C. Waiver of Right to Object to Master Metering

"119 Westside next argues that it submitted electrical plans to PacifiCorp in February 1998, which PacifiCorp accepted, "showing master metering/sub metering" and PacifiCorp "waived" any objection to master metering at the Broadway Lofts. We disagree.

120 Utah law is clear on the elements needed to find waiver: (1) "A waiver is the intentional relinquishment of a known right.... [There must be an existing right, benefit or advantage, a knowledge of its existence, and an intention to relinquish it." Geisdorf v. Doughty, 972 P.2d 67, 72 (Utah 1998) (emphasis added) (quoting Soter's Inc. v. Deseret Fed. Sav. & Loan Ass'n, 857 P.2d 935, 942 (Utah 1993) (other citation omitted)). PacifiCorp had no "right" to waive regarding Westside's purported "request" to master meter the Broadway Lofts. The PSC is the only body empowered, pursuant to rule 746-210, to ultimately find and grant an exemption to the master metering prohibition, not PacifiCorp. The utility has no discretion in granting an exemption. Utah Admin. Code Rule 746-210-1.

{21 Furthermore, the record provides no factual support for establishing waiver on PacifiGorp's part. While Westside asserts that it submitted plans that PacifiCorp accepted that showed master metering the condominiums, there is no evidence of this. These plans were not presented at the evi-dentiary hearing and Westside's only witness testified he did not submit any such plans to PacifiCorp and had no knowledge of anyone else doing so. The documents Westside did submit at the hearing, one dated February 3, 1998, and the other apparently undated, were titled "Requests for Electrical Service" and do not refer to master metering. The logical inference from both documents, which state "For each unit" and "In addition to the 101 units and the house panels, we have to provide 2 x 800 Amp [illegible] services for the future restaurants[,]" respectively, is that individual metering, not master metering, was contemplated.

1 22 Thus, as a matter of both law and fact, Westside's waiver argument fails.

II. CONSTITUTIONAL MATTERS RAISED IN THIS PETITION

123 The record shows that, for the first time, Westside has raised arguments in this petition about the unconstitutionality of Rule 746-210 under both the Due Process and Equal Protection Clauses of the United States Constitution. Pursuant to the Utah Code, "No applicant may urge or rely on any ground not set forth in the application [for rehearing] in an appeal to any court." Utah Code Ann. § 54-7-15(2)(b) (2001). As this court has stated, in the interest of avoiding "procedural confusion and piecemeal litigation|,]" a petitioner must bring all potential claims, including constitutional challenges, before the state agency involved. Nebeker v. Utah Tax Comm'n, 2001 UT 74, ¶ 19, 34 P.3d 180. This requirement serves several objectives: (1) such notice gives the state agency the ability to reassess its own administrative rule if the rule is the subject of a constitutional challenge, (2) the agency involved may engage in fact-finding best suited to assess and resolve the constitutional claim, and (8) a petitioner will not be able to revive claims . "originally lost due to his [or her] own lack of diligence in failing to exhaust ... administrative remedies." Id. at 120 (citation omitted). Since Westside did not raise these claims when petitioning the PSC for review of its original ordér, which petition was granted as to the rate exemption argument, it has waived its right to raise these arguments in this court. We therefore will not consider the substance of its constitutional challenges.

CONCLUSION

[ 24 The PSC's conclusion that the Broadway Lofts building is subject to the master meter prohibition was both reasonable and rational. The PSC's determination that Westside failed to establish an exemption under Rule 746-210 to the prohibition was supported by substantial evidence. There has been no showing that PacifiCorp, either legally or factually, waived any right to object to Westside's master metering. Finally, Westside's constitutional arguments were not timely raised. We therefore affirm the PSC's order dismissing Westside's complaint.

1 25 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURRANT, and Justice WILKINS, concur in Justice DURHAM's opinion.

      . We note that all parties to this petition cite Drake v. Industrial Comm'n, 939 P.2d 177 (Utah 1997), regarding appropriate agency standards of review. We note that Drake was not a UAPA case, an observation that applies to State v. Pena, 869 P.2d 932 (Utah 1994), as well.

      . The second type of "new building" defined in the rule, for which construction is defined as commencing "when footings are poured{,]" is not applicable to the Broadway Lofts, since a building permit was required for the renovation, and this second definition only applies to buildings which do not require a building permit. See Utah Admin. Code Rule 746-210-3(A).


author: RUSSON, Associate Chief Justice.

text:
    2002 UT 33
    Leo H. AULT and Virginia Ault, Plaintiffs and Appellants, v. Darrell C. HOLDEN and Patsy E. Holden, Defendants and Appellees.
    Nos. 20000690, 20001008.
    Supreme Court of Utah.
    March 26, 2002.

      William J. Hansen, Karra J. Porter, Salt Lake City, for plaintiffs.
    Seott A. Broadhead, Tooele, for defendants.
   RUSSON, Associate Chief Justice.

1 1 Leo and Virginia Ault (collectively, "the Aults") appeal from an order granting Darrell and Patsy Holden (collectively, "the Hol-dens") summary judgment, quieting title to two disputed parcels of property in the Hol-dens. We reverse and remand.

BACKGROUND

T2 This matter involves claims by two adjoining landowners to a strip of land that runs along their respective properties in Vernon, Utah ("the strip"), and to another parcel ("the western parcel"). See Figure 1. The lot to the north of the strip is owned by the Aults. The lot south of the strip is owned by the Holdens. The Aults claim title to both of these disputed parcels by virtue of their warranty deed, and the Holdens claim title under the doctrine of boundary by acquiescence. The Holdens also claim that the Ault deed was defective and, in any case, was not

recorded prior to the Holdens’ deed and did not affect the Holdens’ rights in the disputed property.

I. RELEVANT PROPERTIES AND PROPERTY INTERESTS

¶ 3 The Aults purchased the north lot in 1962 from Clarence M. Plant and Anna M. Plant Ross pursuant to a uniform real estate contract. The real estate purchase contract provided for delivery of a warranty deed upon completion of a series of payments. This contract was recorded with the Tooele County Recorder’s Office in December 1962. The payments were made, and Plant and Ross executed a warranty deed on June 15, 1972, and delivered it to the Aults (“Ault deed”). The Aults recorded the deed on August 22,1975.

¶4 On March 21, 1973, the Holdens purchased the property directly south of the Ault property. They recorded the warranty deed conveying the south lot to them (“Holden deed”) on April 9, 1973. Then, on February 26,1976, the Holdens purchased a thin, triangle-shaped parcel of property (“triangular parcel”) located on the west of the Holden property and west of the southern portion of the Ault property.

¶ 5 Along the border of the north and south lots sits the strip in question, which is approximately 30 feet wide and 553 feet long. On the north side of the strip is a fence line, which runs westwardly from a county road-bounding the south lot, the north lot, and the strip on the east—to a point about 26 feet from the Ault property’s western boundary, as defined by the Ault deed, and then turns northward. The Ault deed’s legal description of the north lot expressly encompasses the strip, but the Holden deed’s legal description of the south lot does not explicitly include the strip.

T 6 On the west, the fence continues northwesterly for about 115 feet. West of this section of the fence is the western parcel, a rectangular parcel of property. The western parcel, which is about 26 feet wide and 115 feet long, is also claimed by both the Aults and the Holdens. The legal description of the Ault property also expressly encompasses the western parcel, but the legal description of the Holden property does not. Whether the Holdens have occupied the western parcel for more than twenty years is unclear from the record and the parties' briefs, but the trial court specifically found that the "Holdens are in possession of the disputed property," implicitly finding that the Holdens occupied the western parcel.

T7 Before purchasing the south lot, the Holdens leased the lot commencing in 1969. From that time, the Holdens occupied the south lot. They also used the strip in controversy up to the fence. Indeed, between April 1, 1972, and sometime in 1977, the Holdens leased the Ault property from the Aults. Further, the Holdens used the Ault property between 1982 and 1997.

II. CONVERSATIONS

18 At various times during the period relevant to this appeal, Darrell Holden and Leo Ault had conversations in which they discussed the strip. They both acknowledged that the fence did not demarcate the boundary between the Holden and Ault properties. The first conversation occurred in 1978. Another such conversation occurred during the early 1990s. During this conversation, Ault apprised Holden that the fence was not the boundary. In response, Holden offered to trade a parcel of property to Ault in exchange for the strip or offered to purchase the strip from the Aults. However, neither a trade nor a purchase was ever consummated. Before the trial court, the Holdens acknowledged that "those conversations took place."

T9 In 1997, Ault told Holden that he did not want the Holdens on the Ault property because the Holdens had erected structures and fences on the Ault property without the Aults' consent. Subsequently, on June 2, 1998, the Holdens received a letter from Ault demanding that the Holdens remove their possessions from the Ault property.

III. DEEDS AND SURVEYS

[ 10 The legal description in the Ault deed defines all the courses to the Ault property: The last course simply states "(thence south 1.77 chains to the place of beginning, containing approximately 17 acres." The Holden deed provides that the northern boundary of the Holden property is "the South line of the A.M. Ross and C.M. Plant property." The parties do not dispute that this boundary description actually refers to the southern boundary of the Ault property.

{11 Based upon the Ault and Holden deeds, several surveys of the Ault and Holden properties have been conducted during the time period relevant to this appeal. The first survey, the Rosenberg survey, was performed in 1969 and was a survey of the south lot. A second survey was completed by HK. Bullen for the Holdens on July 8, 1974, in connection with Holden's 1976 purchase of the triangular parcel. The third was obtained by the Aults of the north lot in connection with previous litigation in the late 1970s or early 1980s. The fourth survey, dated July 5, 1998, was performed by D.H. Jensen and Associates. Jensen and Associates surveyed both the Ault and Holden properties. All four of the surveys determined that both of the disputed parcels belonged to the Aults. However, the Jensen survey noted that the legal description of the Ault property in the Ault deed did not close. Darrell Holden denies seeing the first three surveys until "the late '8083," including the Bullen survey that Holden requested.

IV. PROCEDURAL HISTORY

1 12 On November 30, 1998, the Aults filed a complaint against the Holdens, asserting four causes of action: (1) quiet title, (2) conversion of personal property, (8) unjust enrichment, and (4) trespass. On February 8, 2000, the Holdens moved for summary judgment. On July 18, 2000, the district court granted the Holdens summary judgment, quieting title to the strip and the western parcel in the Holdens. Specifically, the trial court determined that the Holdens were entitled to the disputed parcels based on, inter alia, the doctrine of boundary by acquiescence. The trial court reasoned in the order granting summary judgment:

The parties agree they had a conversation in 1978, that the fence was not the actual record boundary line as noted in their deeds. Nonetheless, the Aults did not seek to oust the Holdens from occupying the disputed property. In spite of the conversation, the objective evidence and conduct of the parties shows that they each acquiesced in the fence as their dividing line.

In its order, the trial court determined that the Holdens occupied the strip for boundary by acquiescence purposes between 1978 and 1998.

1 13 On August 1, 2000, the Holdens filed a verified memorandum of attorney fees and costs. The district court then awarded the Holdens $3,518.65 in costs and $13,550 in attorney fees. The Aults appealed.

T 14 On appeal, the Aults contend that the trial court erred by concluding that (1) the Holdens had established their ownership of the disputed parcels under the doctrine of boundary by acquiescence, (2) the Ault deed was ineffective in that it failed to close, and (3) the Ault deed was subject to the Holdeng' rights in the disputed parcels because the Holdens were parties in possession. Further, the Aults argue that the Holdens are not entitled to attorney fees or costs. In response, the Holdens argue that the trial court properly granted summary judgment to them and that they are entitled to attorney fees and costs.

STANDARD OF REVIEW

115 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, e.g., State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, ¶ 8, 44 P.8d 680; Tustian v. Schriever, 2001 UT 84, 113, 34 P.3d 755. To determine whether a trial court properly granted summary judgment, we review the trial court's legal conclusions for correctness, affording those legal conclusions no deference. Utah Coal & Lumber Rest., Inc. v. Outdoor Endeavors Unlimited, 2001 UT 100, ¶ 9, 40 P.3d 581; SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT 54, 19, 28 P.3d 669. "Because summary judgment is granted as a matter of law, we may reconsider the trial court's legal conclusions." Winegar v. Froerer Corp., 813 P.2d 104, 107 (Utah 1991). 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." DCM Inv. Corp. v. Pinecrest Inv. Co., 2001 UT 91, ¶ 6, 34 P.3d 785.

ANALYSIS

I. BOUNDARY BY ACQUIESCENCE

$16 The paramount issue in this case is whether the trial court erred in quieting title to the strip and the western parcel in the Holdens under the doctrine of boundary by acquiescence. For a court to quiet title in a parcel of property on the basis of boundary by acquiescence, the party claiming title to property under the doctrine must establish " 'i) occupation up to a visible line marked by monuments, fences, or buildings, (ii) mutual acquiescence in the line as a boundary, (iii) for a long period of time, [and] (iv) by adjoining landowners' " Orton v. Carter, 970 P.2d 1254, 1257 (Utah 1998) (quoting Jacobs v. Hafen, 917 P.2d 1078, 1080 (Utah 1996). If the party attempting to establish boundary by acquiescence fails to satisfy any one of the elements of the doe-trine, the boundary is defeated. Goodman v. Wilkinson, 629 P.2d 447, 448 (Utah 1981); Hales v. Frakes, 600 P.2d 556, 559 (Utah 1979).

{17 In this case, the first element has been established with respect to the strip because the parties do not dispute that the Holdens have occupied and used the strip up to the fence. See Edgell v. Canning, 1999 UT 21, ¶ 7, 976 P.2d 1193. Further, the fourth element has been established as to both parcels because the parties do not dispute that the properties in question are contiguous and that the parties are the respective owners. Therefore, we address only the second and third elements: whether (1) there was mutual acquiescence in the fence as a boundary (2) for a long period of time.

A. Mutual Acquiescence

118 Under the doctrine of boundary by acquiescence, the party attempting to establish a particular line as the boundary between properties must establish that the parties mutually acquiesced in the line as separating the properties. See Hales, 600 P.2d at 559 ("Where there is no proof of acquiescence in the line as the boundary, there can be no boundary by acquiescence."). To do so, the party must show that both parties recognized and acknowledged a visible line, such as a fence or building, as the boundary of the adjacent parcels. Id.; Florence v. Hiline Equip. Co., 581 P.2d 998, 1000 (Utah 1978); Fuoco v. Williams, 18 Utah 2d 282, 286, 421 P.2d 944, 947 (1966); see also Carter v. Hanrath, 925 P.2d 960, 960 (Utah 1996) ("The rule of boundary by acquiescence serves a useful and practical purpose when applied where adjoining owners are seemingly content to recognize a marked line or monument not on the true line as the practical boundary between them." (emphasis added)). As explained in American Jurisprudence:

When adjoining landowners occupy their respective premises up to a certain line which they mutually recognize and acquiesce in for a long period of time, ... they are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one. In other words, such recognition of, and aequies-cence in, a line as the true boundary line, if continued for a sufficient length of time, will afford a conclusive presumption that the line thus acquiesced in is the true boundary line. ... When the parties agree that the line to which they occupy is not the true line and agree subsequently to ascertain the true boundary, the quality of acquiescence is destroyed and no boundary is fixed by continued occupation.

12 Am.Jur.2d Boundaries § 88 (1997) (emphasis added). Acquiescence is defined as "[a] person's tacit or passive acceptance; implied consent to an act." Black's Law Dictionary 23 (ith ed.1999).

119 In other words, to acquiesce, a landowner must recognize and treat an observable line, such as a fence, as the boundary dividing the owner's property from the adjacent landowner's property, regardless of whether the landowner knows where the actual boundary lies or whether the boundary is uncertain. The acquiescence, or recognition, may be tacit and inferred from evidence, i.e., the landowner's actions with respect to a particular line may evidence the landowner impliedly consents, or acquiesces, in that line as the demarcation between the properties. See, eg., Van Dyke v. Chappell, 818 P.2d 1023, 1027 (Utah 1991); Judd Family Ltd. P'ship v. Hutchings, 797 P.2d 1088, 1089-90 (Utah 1990); Staker v. Ainsworth, 785 P.2d 417, 420 (Utah 1990).

120 In this case, the trial court granted summary judgment to the Holdens because "the Aults did not seek to oust the Holdens from occupying the disputed property." However, record property owners are not required to take legal action or otherwise "oust" someone adversely occupying their property to maintain their legal rights in their property. See Hales, 600 P.2d at 559 ("[Tlhe plaintiffs occupation to the fence without interference was not sufficient to establish defendant's acquiescence in the fence as a boundary."). They must only take some action manifesting that they do not acquiesce or recognize the particular line, e.g., a fence, as a boundary between the properties. _ -

$21 Indeed, mere conversations between the parties evidencing either an ongoing dispute as to the property line or an unwillingness by one of the adjoining landowners to accept the line as the boundary refute any allegation that the parties have mutually acquiesced in the line as the property demarcation. See Van Dyke, 818 P.2d at 1027 (Mustrating that conversations about purchasing disputed property up to fence is evidence of whether parties have acquiesced in fence as boundary); Judd Family Ltd. P'ship, 797 P.2d at 1089 ("During that time, he had never heard any talk or suggestion that the fence was not the deed line."); Parsons v. Anderson, 690 P.2d 535, 539 (Utah 1984) (noting that plaintiff's objection to defendant's use of property was evidence that plaintiff never acquiesced in fence as boundary); Williams v. Oldroyd, 581 P.2d 561, 563 (Utah 1978) (stating that offers to purchase disputed property show parties had not acquiesced in boundary). Specifically, conversations in which a record owner unequivocally informs the other that he owns beyond the "visible line" claimed as a boundary, and that the owner does not recognize that line as separating the properties, are conclusive that a party has not acquiesced in the line as the property line.

122 In this case, the conversations between Ault and Holden are dispositive. On several occasions relevant to the establishment of boundary by acquiescence in this case, the Aults and the Holdens had conversations to the effect that the fence was not the boundary between their adjacent parcels. At a minimum, conversations occurred in 1978 and during the early 1990s. Indeed, evidence that the Holdens and the Aults discussed the possibility of the Holdens either purchasing or trading for the disputed parcels unequivocally shows that neither party actually acquiesced in the fence as a boundary; that conversation showed that neither tacitly consented to the fence as a boundary and instead both contemplated that the Aults would convey the disputed parcels to the Holdens via a traditional conveyance. The conversations establish not only that the Aults and the Holdens knew where the true boundary was, but that neither the Aults nor the Holdens ever recognized the fence as the boundary. These conversations conclusively repudiate any allegation that the parties acquiesced in the fence as the boundary when the conversations took place. ' '

B. For a Long Period of Time

123 To establish the third element of boundary by acquiescence, the occupation up to a visible line and mutual acquiescence must last for at least twenty consecutive years. Jacobs v. Hafen, 917 P.2d 1078, 1080 (Utah 1996); see also Orton, 970 P.2d at 1257; Carter, 925 P.2d at 960. The trial court concluded that the Holdens occupied the disputed parcels up to the fence and both parties acquiesced in the fence as a boundary from 1978 to 1998, when the Aults filed this suit. However, in light of the parties' conversations in 1978 and in the early 1990s indicating that the parties had not acquiesced in the property as the boundary, there have never been twenty continuous years of acquiescence-assuming that there ever was acquiescence-in the fence as a boundary. See Parsons, 690 P.2d at 539 (holding fifteen years of acquiescence insufficient to establish boundary by acquiescence).

124 Because the Holdens cannot, as a matter of law, show twenty continuous years of acquiescence in the fence as a boundary, the trial court erred in holding that the Hol-dens were entitled to the property under boundary by acquiescence.

II. AULT AND HOLDEN DEEDS

«[ 25 In making their claims to the disputed parcels, however, the Holdens do not rely solely on the doctrine of boundary by aequi-escence. In addition to their boundary by acquiescence claim, the Holdens also claim that (1) the Ault deed is defective in that the boundary description was incomplete (failed to close), (2) the Holdens recorded the Holden deed before the Aults recorded the Ault deed, and (8) the Holdens held rights in the disputed parcels to which the Ault deed was subject when the Holdens were in possession of those parcels. In granting the summary judgment, the trial court held, as a matter of law, that the Ault deed "is insufficient to convey title, the description therein failing to close" and "is insufficient to convey title adverse to the interest of [the] Holdens, it being subject to the rights of parties in possession and [the] Holdens being in possession on August 22, 1975, when the Ault deed was recorded."

A. Deed Failing to Close

126 The trial court concluded that the Ault deed failed to convey title to the Aults when its legal description set forth therein was indefinite because it failed to close. In Utah, a warranty deed conveys title so long as the deed's description of the property is "sufficiently definite ... to identify the property it conveys." Colman v. Butkovich, 556 P.2d 503, 505 (Utah 1976) (emphasis added). In other words:

The fact that parts of the description given of the property are incorrect or incomprehensible will not destroy the operative effect of a conveyance, if a sufficient part of the description remains for purposes of identification. In such cases the misde-seription will be ignored and the land held to be sufficiently described. The test is said to be whether a surveyor or engineer with the deed before him and with or without the aid of extrinsic evidence can locate the land and establish the boundaries.

23 Am.Jur.2d Deeds § 54 (1983) (emphasis added).

27 In this case, surveyors prepared four different surveys based upon the Ault deed: the Rosenberg survey, the Bullen survey, the Jensen survey, and the survey prepared for the Aults' previous litigation. In each, the surveyors were able to identify the Ault property and establish the boundaries thereof pursuant to the legal description set forth in the Ault deed, including the boundary between the Ault and Holden properties.

128 While it is undisputed that the distance measurement of the final call of the legal description in the Ault deed does not extend to the point of beginning so as to close, the deed did not fail to convey the north lot to the Aults. "In the construction of boundaries, we ... find that the intention of the parties is the controlling consideration." Losee v. Jones, 120 Utah 385, 395, 285 P.2d 132, 137 (1951); see also Cornish Town v. Koller, 758 P.2d 919, 921 (Utah 1988). Indeed, we held in Losee that a deed sufficiently describing property conveys the property intended to be conveyed, although the description does not close according to the distance measurement articulated in the final call, so long as the intention is clear from the deed. 120 Utah at 394-96, 235 P.2d at 137.

1 29 In Losee, the final distance call of the property description failed to return to the point of beginning; that call concluded with "thence east 2.5 chains more or less to place of beginning." 120 Utah at 395, 235 P.2d at 137. We held that such a description sufficiently described the property because "the intention [of the grantor was for] the tract [to] close by extending the final call to place of beginning, and the words 'more or less' constitute a tolerance factor which enables this extension of the final distance, beyond the 2.5 chains, in order that the tract close." Id.

1 30 The language of the legal description in the Ault deed parallels the language of the legal description at issue in Losee. Here, the description culminates with the phrase "thence south 1.77 chains to the place of beginning, containing approximately 17 acres." As in Losee, this description concludes with "to the place of beginning," manifesting the grantor's intent that the de-seription close at the point where the legal description began. Id. Further, the property description in the Ault deed concluded with the phrase "containing approximately 17 acres" (emphasis added), which serves as a "tolerance factor [that] enables the extension of the final distance" so that the deed closes. 120 Utah at 395, 235 P.2d at 137. Therefore, surveyors were able to identify the Ault property although they had to extrapolate the final call "to the place of beginning," closing the legal description and effectuating the intent of the grantors. Because surveyors can identify the Ault property according to the deed's legal description, the Ault deed is sufficient to convey the property described.

B. Deed Recording

$31 The Holdens contend that under Utah's "race to the registry" system, the Holdens title is paramount to the Aults' title, and the Holdens are thus entitled to the property because they recorded their deed before the Aults recorded their deed. In Utah, between two purchasers of real property, the first to validly record a conveyance and take the property without notice of a prior interest in the property takes the property over a purchaser who subsequently records a deed. See Wilson v. Schneiter's Riverside Golf Course, 523 P.2d 1226, 1227 (Utah 1974). The Utah Code provides:

Each document not recorded as provided in this title is void as against any subsequent purchaser of the same real property, or any portion of it, if:
(1) the subsequent purchaser purchased the property in good faith and for a valuable consideration; and
(2) the subsequent purchaser's doeument is first duly recorded.

Utah Code Ann. § 57-83-1083 (2000) (emphasis added).

132 While it is undisputed the Holdens duly recorded their deed before the Aults recorded their deed, the Ault deed is not void as against the Holdens with respect to the disputed parcels because the Holden deed does not describe "the same real property" as the Ault deed, "or any portion of it." Id.

T 33 The legal description in the Ault deed explicitly encompasses both the western parcel and the strip. Conversely, the Holden deed describes neither the strip nor the western parcel because the northern boundary of the Holden property is defined in the Holden deed legal description as "the South line of the A.M. Ross and C.M. Plant property," which the parties agree refers to the Ault property. The south line of the Ault property is not the fence, see supra part I, but the boundary articulated in the Ault deed legal description. See Hancock v. Planned Dev. Corp., 791 P.2d 183, 185 (Utah 1990) (noting that "a specific description will control or limit a general description"); Neeley v. Kelsch 600 P.2d 979, 982 (Utah 1979) ("The specific description in chains and degrees prevails over the general reference [to the location of a boundary]."). Indeed, the Holden deed by its own terms excludes any property specifically included in the Ault deed.

134 We addressed a similar situation in Neeley, in which the defendants recorded their deed to a parcel of property before the plaintiff recorded. 600 P.2d at 980. However, the metes and bounds description in the defendants' deed did not include the disputed property. Id. Conversely, the plaintiff's deed "included the disputed property and was recorded," although it was recorded after the defendants recorded their deed. Id. at 982. Thus, we concluded that "under the recording act, [the defendants'] claim to the land [wals void." Id.

135 Similarly, in this case, where the Holden deed describes neither the strip nor the western parcel, the Holdens are precluded from claiming the disputed parcels by recording their deed before the Ault deed was recorded. Therefore, the Holdens cannot claim that the Ault deed is void as against them when first duly recorded because their deed does not cover "the same real property." Utah Code Ann. § 57-38-1038.

C. Rights of Parties in Possession

136 The trial court concluded, "The warranty deed to [the] Aults alleged in the complaint is insufficient to convey title adverse to the interest of [the] Holdens, it being subject to the rights of parties in possession and [the] Holdens being in possession on August 22, 1975, when the Ault deed was recorded." To determine whether the trial court was correct in concluding that the Ault deed was amenable to the Holdens' rights in the property, we must review the Ault deed.

137 Deeds are construed like other written legal instruments. Hartman v. Potter, 596 P.2d 653, 656 (Utah 1979). "In the absence of ambiguity, construction of a deed is a question of law," Terry v. Price Mun. Corp., 784 P.2d 146, 149 (Utah 1989), that we review for correctness, Jones v. ERA Brokers Consol., 2000 UT 61, 112, 6 P.3d 1129. When we construe a deed, we are not bound by the trial court's conclusions regarding the meaning of the deed. Cornish Town, 758 P.2d at 921; Hartman, 596 P.2d at 656.

188 "The paramount rule of construction of [a] deed[ ] is to give effect to the intent of the parties as expressed in the deed...." Hancock, 791 P.2d at 185; see also Cornish Town, 758 P.2d at 921; Creason v. Peterson, 24 Utah 2d 305, 309, 470 P.2d 403, 405 (1970). Specifically, we determine the parties' intent from the plain language of the four corners of the deed. Cent Fla. Invs., Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 12, 40 P.3d 599; see also Cornish Town, 758 P.2d at 921; Wood v. Ashby, 122 Utah 580, 585, 253 P.2d 351, 353 (1952).

139 The Ault deed provides that it is "subject to the rights of parties in possession." (Emphasis added.) This language is unambiguous. This clause in the Ault deed does not create any rights in the Holdens, but rather was only a recognition that parties in possession of the property may have rights in the property "against which the grantor did not warrant title." Johnson v. Peck, 90 Utah 544, 550, 63 P.2d 251, 254 (1986). "The words 'subject to' used here are commonly associated with attempts by grantors to give notice of encumbrances...." Hancock, 791 P.2d at 186.

{40 In Hancock, the trial court determined that language in a deed that stated the deed was "subject to a fence line eneroachment along the east line" reserved in the grantor the property east of the fence line, "which otherwise would have passed under the metes and bounds description." 791 P.2d at 185. However, we determined that the clause did not reserve the property to the grantor, but rather placed the grantee on notice that another may attempt to acquire the property by boundary by acquiescence "in order to insulate herself from a suit by ... grantee ... in the event [that al claim of title to the strip of land by acquiescence proved to be valid." Id. at 185-86. Thus, we concluded that the defendant could obtain title to the property only by boundary by acquiescence, not under the "subject to" clause of the deed. Id. at 187.

141 Here, the trial court concluded that the Ault deed did not convey title to the disputed parcels to the Aults where that deed was adverse to the right or interest of the Holdens as a party in possession. It is undisputed that the Holdens were in possession of the strip when the Aults recorded their deed on August 22, 1975. The Holdens contend that their possession of the disputed parcels placed the Aults on notice of their claim of title.

142 However, possession requires only inquiry into any rights in the property the possessor may hold. Hottinger v. Jensen, 684 P.2d 1271, 1273 (Utah 1984). Traditionally, in race-notice states like Utah, a purchaser takes subject to rights of parties in possession that are open and visible. Seq, e.g., Mathis v. Madsen, 1 Utah 2d 46, 57, 261 P.2d 952, 959 (1958); Neponset Land & Live-Stock Co. v. Dixon, 10 Utah 334, 336-37, 37 P. 573, 574 (1894); Ayers v. Jack, 7 Utah 249, 252-53, 26 P. 300, 300 (1891). In other words, possession by someone other than the seller engenders a duty to inquire on the part of the purchaser into the rights of the party in possession. See Webster v. Knop, 6 Utah 2d 273, 278, 312 P.2d 557, 560 (1957); Salt Lake, Garfield & W. Ry. Co. v. Allied Materials Co., 4 Utah 2d 218, 222, 291 P.2d 883, 886 (1955); Williams v. Barney, 119 Utah 61, 84-85, 224 P.2d 1042, 1053 (1950); Meagher v. Dean, 97 Utah 178, 179, 91 P.2d 454, 456 (1939). However, where a party in possession has no rights adverse to the purchaser, the property is conveyed to the purchaser free of any alleged right of the possessor.

€43 Proper inquiry by the purchaser "would [only] lead to actual knowledge as to the state of title." Johnson v. Bell, 666 P.2d 308, 310 (Utah 1983). In this case, inquiry into the state of the Holdens' title would have informed the Aults that the Holdens did not hold an ownership right in the disputed land contrary to the Aults' ownership under the Ault deed. The Holden deed covered neither the strip nor the western parcel, and the deeds do not conflict.

11 44 The only right the Holdens held in the property at the time the Aults recorded their deed was a leasehold from an agreement with the Aults, which is not contrary to the Ault deed. Between 1972 and 1977, the Hol-dens leased the Ault property from the Aults and were entitled to possession of the Ault property as lessees. Thus, the only rights the Holdens held as a party in possession in this case were limited to the Holdens' rights set forth in the lease agreement, and therefore, the Ault deed was, at most, subject to the rights and interests the Holdens held in connection with the lease agreement. See 66 Am.Jur2d Records and Recording Laws § 188 (1978). Therefore, the trial court erred by concluding that the Ault deed was subject to any ownership rights in the property although the Holdens were a party in possession.

III. CONCLUSION AS TO TITLE

'I 45 Because the trial court erred by quieting title in the Holdens, we reverse and remand to the trial court. Specifically, we reverse the summary judgment and remand with directions to quiet title in favor of the Aults consistent with this opinion.

IV. ATTORNEY FEES AND COSTS

146 The Holdens are not entitled to attorney fees or costs in this case. Whether a party may recover attorney fees in an action is a question of law that we review for correctness. Warner v. DMG Color, Inc., 2000 UT 102, ¶ 21, 20 P.3d 868. Likewise, although the question of whether costs should be awarded is within the discretion of the trial court, in this case, where the "mandatory language" of rule 54(d) is applicable and "leaves no discretion to the court," we review the trial court's award of costs for correctness. Lyon v. Burton, 2000 UT 19, 76, 5 P.3d 616.

147 In Utah, attorney fees are typically awarded only pursuant to statute or contract. Miller v. USAA Cas. Ins. Co., 2002 UT 6, 1 69, 44 P.3d 663. In this case, the relevant statute, section 78-27-56(1), provides:

In civil actions, the court shall award reasonable attorney's fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith.

Utah Code Ann. $ 78-27-56(1) (1996) (emphasis added). In addition, rule 54(d) of the Utah Rules of Civil Procedure, which governs when costs are awarded, provides that "costs shall be allowed as of course to the prevailing party." Utah R. Civ. P. 54(d)(1) (emphasis added).

148 A court may award attorney fees under section 78-27-56 and/or costs under rule 54(d) only to a prevailing party. Utah Code Ann. § 78-27-56(1); Utah R. Civ. P. 54(d); see also Robinson v. State, 2001 UT 21, 119, 20 P.3d 896; Faust v. KAI Techs,, Inc., 2000 UT 82, ¶¶ 15-16, 15 P.3d 1266. To be a prevailing party, a party "must obtain at least some relief on the merits" of the party's claim or claims. Crank v. Utah Judicial Council, 2001 UT 8, ¶ 38, 20 P.3d 307. In this case, we reverse the trial court's summary judgment award in favor of the Hol-dens in its entirety, denying them any relief on the merits at this point in the litigation. Given our reversal, we also reverse the award of attorney fees and costs because the Holdens are no longer the prevailing party. See Harper v. Summit County, 2001 UT 10, ¶ 40, 26 P.3d 198 (reversing attorney fee award when case was reversed); Hatch v. Boulder Town Council, 2001 UT App 55, ¶ 15, 21 P.3d 245 ("In light of our [reversal based upon] the merits of this case, Appel-lees are not entitled to an award of attorney fees as prevailing parties [under section 78-27-56(1) ].").

V. THE AULTS CAUSES OF ACTION

1 49 The Aults' claims against the Holdens for conversion, unjust enrichment, and trespass were not considered by the trial court inasmuch as these claims were dependent upon title to the disputed parcels being in the Aults. Because it has been determined that the Aults indeed hold title to the disputed parcels, their claims are revived and subject to further proceedings consistent with this opinion on remand to the trial court.

CONCLUSION

50 In view of the foregoing, we reverse the trial court and remand for further proceedings consistent with this opinion.

1 51 Chief Justice HOWE, Justice DURHAM, Justice DURRANT, and Justice WILKINS concur in Associate Chief Justice RUSSON's opinion.

      . Figure 1 was utilized by both parties in their briefs.

      . The Ault deed provides that the Aults' title is subject to the rights of parties in possession.

      . In late 1969, the Holdens began leasing the south lot.

      .Both parties agree that the fence predated the delivery of the Ault deed on July 15, 1972.

      . The parties dispute whether the Holdens used the property pursuant to a lease agreement or whether the Holdens merely managed the property for the Aults. Regardless of how the parties characterize the Holdens' use, it is undisputed that the Holdens had access to the Ault property and raised crops on it.

      . The exact date is unclear. In his deposition, Holden testified that this conversation occurred in 1990 "or so" and then added that the exact date "could be plus or minus five or six years."

      . Figure 1 shows a portion of the Jensen survey.

      . Often deeds are legally described by metes and bounds, which is a description of the boundary line by length and direction. To properly close, the metes and bounds boundary description must begin and end at the same geographical point. To say a deed "fails to close" is to say that the legal description of the boundary of a parcel of property does not completely describe the metes and bounds properly so that the boundary completely encompasses the parcel and returns to the point of the boundary description's inception.

      . As to the western parcel, the parties have not adequately addressed the issue of occupancy and we therefore will not address it.

      . The Holdens incorrectly state that Utah is a "race to the registry" system. Actually, Utah has a race-notice recording statute. See Utah Code Ann. § 57-3103 (2000); Neeley v. Kelsch, 600 P.2d 979, 982 (Utah 1979); South Sanpitch Co. v. Pack, 765 P.2d 1279, 1280-81 (Utah Ct.App. 1988).

      . The Holdens state that Raymond Pehrson testified the fence was the boundary between the northern parcel, which was owned by Ross and Plant before it was owned by the Aults, and the southern parcel. However, Pehrson stated only that the fence had been in existence for sixty-nine years and never testified that it was the boundary between the properties.