Davis v. Provo City Corp.

1 The Legislature renumbered Title 78 during the 2008
general legislative session. The language of the statute in
Title 78 did not change; therefore, we cite to the newly numbered
statute.
2008 UT 59
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Richard Davis, No. 20060909
Plaintiff and Appellant,
v.
Provo City Corporation; Greg
Sperry; Stephen Kapelow; Loren
Kapelow; Design West, LLC; Red F I L E D
Slab, LLC; and John L. Valentine,
Defendants and Appellee. August 26, 2008
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Fourth District, Provo Dep’t
The Honorable James R. Taylor
No. 000403760
Attorneys: James A. Boevers, M. David Eckersley, Michael N.
Zundel, Salt Lake City, for appellant
Jody K. Burnett, Dennis C. Ferguson, Salt Lake City,
David C. Dixon, James L. Wilde, Robert D. West,
Camille S. Williams, Provo, for appellee
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NEHRING, Justice:
INTRODUCTION
¶1 While the underlying litigation in this case involves
multiple issues and parties, this interlocutory appeal concerns
only the dismissal of one of Richard Davis’s many causes of
action. The district court dismissed Mr. Davis’s challenge to
Provo City’s annexation of his land, holding that he did not
bring his challenge within the statutory time limit. The
district court held that Utah Code section 78B-2-307(3)1 is the
statute of limitations that governs the time for bringing
challenges to annexations and that, contrary to Mr. Davis’s

No. 20060909 2
argument, Utah Code section 10-2-422 does not act as a statute of
limitations and does not control when a challenge to an
annexation may be brought. We agree and affirm the district
court’s dismissal of Mr. Davis’s claim against Provo City.
BACKGROUND
¶2 In 1978, Provo City annexed a large tract of land in
what came to be known as the Heritage Mountain Annexation. In
1998, Mr. Davis and his business partner, Greg Sperry, purchased
a mining claim within the Heritage Mountain Annexation. They
paid $75,000 for the property at closing and were to pay another
$75,000 by April 10, 1999. Each was to pay half of the remaining
$75,000 owed. Mr. Sperry failed to pay his share of the
outstanding cost, and Mr. Davis paid the full $75,000. Following
the final payment on the property, Mr. Davis learned that Mr.
Sperry had transferred his interest to Stephen Kapelow by special
warranty deed dated April 5, 1999, and recorded April 14, 1999.
¶3 Mr. Davis filed a complaint against Mr. Sperry and Mr.
Kapelow, alleging intentional misrepresentation, wrongful
conveyance of partnership property, wrongful dissolution of
partnership, and breach of the partnership agreement. The
complaint was later amended to include claims against Loren
Kapelow; Design West, LLC; Red Slab, LLC; John L. Valentine; and
Provo City Corporation. In the claim against Provo City, Mr.
Davis alleged that Provo City illegally annexed his land in 1978.
He asserted that Provo City’s annexation of his property did not
follow the statutorily required procedures and was void.
¶4 Provo City filed a motion to dismiss based on the
statute of limitations, laches, and the Governmental Immunity Act
of Utah. Beginning with the statute of limitations, Provo City
first argued that Mr. Davis was barred by Utah Code section 10-2-
422 from challenging the annexation because the statute requires
a resident of the annexed area to contest the annexation within
one year. Mr. Davis could not have challenged the annexation
under this statute because he did not own the property at the
time. In the alternative, Provo City argued that if section 10-
2-422 did not apply to Mr. Davis or the previous owners of the
property, then section 78B-2-307(3), the catch-all four-year
statute of limitations, applied and barred Mr. Davis’s claim.
¶5 In response, Mr. Davis argued that Utah Code section
10-2-422 was more specific than the general statute of
limitations and, as such, was the proper limitations period for
his claim against Provo City. Utah Code section 10-2-422
provides as follows:

2 The statute in effect at the time of Provo’s annexation of
the land was Utah Code section 10-2-403. It stated:
Whenever the inhabitants of any territory
annexed to any municipality pay property tax
levied by the municipality for one or more
years following the annexation and no
inhabitants of the territory protests the
annexation during the year following the
annexation, the territory shall be
conclusively presumed to be properly annexed
to the annexing municipality.
Utah Code Ann. § 10-2-403 (Supp. 1977). Since the current
version of the statute is not substantively different from the
former version, we will interpret the current statute.
3 No. 20060909
An area annexed to a municipality under
this part [Utah Code Ann. §§ 10-2-401 to
-428] shall be conclusively presumed to have
been validly annexed if:
(1) the municipality has levied and the
taxpayers within the area have paid property
taxes for more than one year after
annexation; and
(2) no resident of the area has
contested the annexation in a court of proper
jurisdiction during the year following
annexation.2
Utah Code Ann. § 10-2-422 (2007).
¶6 Mr. Davis contended that despite the property’s
location in an area that had been considered part of Provo City
for twenty years, he never received a tax notice assessing Provo
City taxes on the property while he had an interest in it. He
asserted that since he was never taxed, the property could not be
“conclusively presumed to have been validly annexed” and the
annexation that took place in 1978 remains open to challenge.
¶7 Although surprising, the absence of any assessment of
Provo City taxes on Mr. Davis’s property can be explained by the
fact that Mr. Davis’s property interest is a mining claim. The
Utah State Tax Commission is responsible for assessing mines and
mining claims. The Commission relies on the counties’ mapping of
mining claims to determine which taxing district the property is
in. Part of Mr. Davis’s property is located within Provo City
and part is located in unincorporated Utah County. When
assessing Mr. Davis’s property, however, the Commission admitted
to mistakenly treating Mr. Davis’s property as being entirely
within unincorporated Utah County. As a result, the tax notices

No. 20060909 4
Mr. Davis received did not include assessments of Provo City
taxes.
¶8 Despite the fact that Mr. Davis’s property had never
been taxed by Provo City, the district court granted Provo City’s
motion to dismiss because the statute of limitations had run.
The district court found that a challenge to an annexation falls
within the catch-all four-year statute of limitations in section
78B-2-307(3) and thus bars Mr. Davis’s challenge to the 1978
annexation. The court explained that section 10-2-422 is not a
statute of limitations, rather it “is a conclusive limitation
that can defeat a challenge to an annexation, but it does not
prevent a challenge, which is the function of a statute of
limitations.” We agree and affirm the district court’s
dismissal.
STANDARD OF REVIEW
¶9 The district court’s application of a statute of
limitations is a question of law, which we review for
correctness. Nolan v. Hoopiiaina (In re Hoopiiaina Trust), 2006
UT 53, ¶ 19, 144 P.3d 1129.
DISCUSSION
¶10 The core inquiry in this case is whether the language
in Utah Code section 10-2-422 providing for a conclusive
presumption of valid annexation makes section 10-2-422 a statute
of limitations. Mr. Davis argues that it is a statute of
limitations because, in his view, the language in the statute
providing for a conclusive presumption if certain conditions are
met implies that if those conditions are not met, the annexation
of the land can still be challenged. Provo City argues that the
conclusive presumption language in section 10-2-422 is a
substantive rule of law rather than a time limitation on bringing
an action.
¶11 A statute providing a conclusive presumption is very
different from a statute of limitations. First, there are
substantial textual differences between the two types of
statutes. Second, the purposes of the two types of statutes are
distinctly different.
¶12 Comparison of the text of section 10-2-422 and the text
of statutes that clearly limit the filing period shows that
section 10-2-422 is not a statute of limitations. Furthermore,
an examination of the purpose of conclusive presumptions and the
purpose of statutes of limitations demonstrates that Mr. Davis’s
interpretation of section 10-2-422 is inconsistent with the
purposes of both types of statutes.

5 No. 20060909
I. STATUTORY TEXT
¶13 The primary purpose of statutory interpretation is to
determine “the true intent and purpose of the Legislature.”
State ex rel. Div. of Forestry, Fire & State Lands v. Tooele
County, 2002 UT 8, ¶ 10, 44 P.3d 680 (internal quotation marks
omitted). The best evidence of legislative intent is the plain
language of the statute, and “[w]hen examining the statutory
language we assume the legislature used each term advisedly and
in accordance with its ordinary meaning.” State v. Martinez,
2002 UT 80, ¶ 8, 52 P.3d 1276. Thus, we begin our analysis of
whether section 10-2-422 is a statute of limitations with an
examination of the ordinary meaning of the words used in the
statute and a comparison of that meaning to the operative text
common to statutes of limitations.
¶14 Utah Code section 10-2-422 states as follows:
An area annexed to a municipality under
this part shall be conclusively presumed to
have been validly annexed if:
(1) the municipality has levied and the
taxpayers within the area have paid property
taxes for more than one year after
annexation; and
(2) no resident of the area has
contested the annexation in a court of proper
jurisdiction during the year following the
annexation.
Utah Code Ann. § 10-2-422 (2007).
¶15 Whether this statute operates as a statute of
limitations depends on the meaning and effect of the phrase
“conclusive presumption.” The ordinary meaning of conclusive is
“[s]erving to end doubt or uncertainty” and “decisive.”
Webster’s II New College Dictionary 233 (1995). This court has
previously interpreted the term conclusive in Wyatt v. Baughman,
239 P.2d 193, 196 (Utah 1951). In that case, we held that
conclusive means “that which from its nature the law allows no
contradiction” and “beyond question or beyond dispute.” Id.
¶16 Using these definitions, if the two conditions of
section 10-2-422 are met, there can be no dispute regarding the
validity of the annexation. Although the validity of the
annexation is irrefutable and beyond question when the conditions
listed in the statute are met, the ordinary meaning of conclusive
presumption leads us to conclude that the term is unrelated to
the time limit for bringing an action challenging an annexation.

No. 20060909 6
¶17 In contrast, statutes of limitations speak to legal
claims and when they may be brought. A statute of limitations
contains phrases such as “may not bring an action,” Utah Code
Ann. § 78B-2-201 (2008), “actions . . . shall be brought,” id.
§ 78B-2-303, “an action . . . may not be maintained,” id. § 78B-
2-204, or “an action may be commenced,” id. § 78B-2-206. These
phrases directly address whether an action may be filed. They
have no bearing on the merits of the case or which party would
prevail.
¶18 Section 10-2-422 does not contain any of the language
one would expect to find in a statute of limitations. Rather,
the conclusive presumption in section 10-2-422 affects the
ability of a party challenging annexation to prevail in their
challenge. Since section 10-2-422 does not establish any time
within which the challenge must be brought, it is not a more
specific statute of limitations provided by statute. Indeed, it
is not a statute of limitations at all. Since the catch-all
statute of limitations sets a four-year limit to bring a
challenge if a different period is not set by another statute,
any party challenging an annexation must do so within four years
of the annexation. See Utah Code Ann. §§ 78B-2-102, -307 (2008).
¶19 Applying the four-year statute of limitations would
lead to a practical result which would allow ample time to
challenge the annexation. An action brought within the four-year
statute of limitations may either concern an annexation that has
satisfied the conditions of subsections (1) and (2) of section
10-2-422 or it may concern an annexation that has not satisfied
those conditions. If the conditions in section 10-2-422 were not
met, the conclusive presumption would not affect the merits of a
plaintiff’s claim. If, however, the conditions in section 10-2-
422 were met, the government would receive the benefit of the
conclusive presumption, and it would be impossible for the
challenger to prevail on the merits of their claim. Such a
result would further both the intended purpose of a conclusive
presumption and the intended purpose of a statute of limitations.
II. PURPOSE OF A CONCLUSIVE PRESUMPTION
¶20 An examination of the general nature of conclusive
presumptions supports the conclusion that a statute providing for
a conclusive presumption is not a statute of limitations. A
presumption “requires the trier of fact, in the absence of
evidence . . . on that question, to assume the existence of an
ultimate fact” from underlying basic facts. Pilcher v. Pilcher
(In re Pilcher’s Estate), 197 P.2d 143, 150 (Utah 1948) (Wade,
J., concurring) (emphasis omitted). Where the presumption is
conclusive, “what is said to be the basic facts are in reality

7 No. 20060909
the ultimate facts and they have the same effect as though what
is said to be the ultimate facts did exist.” Id.
¶21 Commentators examining conclusive presumptions have
also stated that “[a] conclusive or irrebuttable presumption is
not a presumption at all; it is a substantive rule of law
directing that proof of certain basic facts conclusively provides
an additional fact which cannot be rebutted.” 29 Am. Jur. 2d
Evidence § 184 (2007). Also,
[w]herever from one fact another is said to
be conclusively presumed, in the sense that
the opponent is absolutely precluded from
showing by any evidence that the second fact
does not exist, the rule is really providing
that where the first fact is shown to exist,
the second fact’s existence is wholly
immaterial for the purpose of the proponent’s
case . . . .
9 Wigmore, Evidence § 2492 (Chadbourn rev. 1981).
¶22 Most often, presumptions operate to give one party an
opening advantage as to the burden of proof, an advantage that
can be lost by a showing of contrary facts by the opposing side.
In the case of a conclusive presumption, however, there is no
opportunity for rebuttal. The decision to make a presumption
conclusive “rests upon grounds of expediency or policy so
compelling in character as to override the generally fundamental
requirement of our system of law that questions of fact must be
resolved according to the proof.” United States v. Provident
Trust Co., 291 U.S. 272, 281-82 (1934). Legal presumptions set
up by statute “are established . . . as a matter of public
policy.” Buhler v. Maddison, 176 P.2d 118, 122 (Utah 1947).
When the Legislature includes a conclusive presumption in a
statute, they are stating that the objective promoted by the
conclusive presumption is of greater importance than the
opportunity to present facts challenging the presumed fact.
¶23 Section 10-2-422 is not the only Utah statute where the
Legislature has made such a choice. Several other statutes also
create conclusive presumptions. See, e.g., Utah Code Ann. § 7-1-
602(1) (2006); id. § 34A-2-702(5)(c)(i) (Supp. 2008). Conclusive
presumptions also occur frequently in statutes regarding
decisions of government entities. See, e.g., id. § 10-2-122
(2007) (providing a conclusive presumption in favor of the
incorporation of a city); id. § 17B-1-217 (Supp. 2007) (providing
a conclusive presumption in favor of the lawful creation of a
local district); id. § 17C-1-504 (Supp. 2007) (providing
conclusive presumptions that bonds were issued for their stated

No. 20060909 8
purpose and that the plans for bonded urban renewal projects were
formed, adopted, planned, located, and carried out as required by
statute).
¶24 The feature common to all of the statutes providing
conclusive presumptions in favor of governments is the finality
they give to the government’s decision. By conclusively
presuming the government action is valid, these statutes express
the Legislature’s choice to further the goal of having an
unassailable final decision over the goal of permitting relief to
parties who may have been harmed by procedural flaws. Such a
legislative decision gives governments confidence when moving
forward with activities such as providing city services. Once
the conditions are met, they can make expenditures without fear
that the decision the spending is based on will be overturned.
The conclusive presumption in section 10-2-422 shares the
attribute of providing finality for government action found in
other statutes conclusively presuming the validity of government
decisions.
¶25 Mr. Davis’s characterization of the conditions in
section 10-2-422 as a mechanism for leaving the annexation open
to challenge indefinitely is at odds with the goal of providing
finality to government actions through conclusive presumptions.
Additionally, his argument that section 10-2-422 is a statute of
limitations is also at odds with the purposes of a statute of
limitations.
III. PURPOSE OF A STATUTE OF LIMITATIONS
¶26 While a conclusive presumption affects the substance of
a claim, a statute of limitations is purely procedural and
affects only the time within which a claim must be brought.
Statutes of limitations are essentially
procedural in nature and establish a
prescribed time within which an action must
be filed after it accrues. They do not
abolish a substantive right to sue, but
simply provide that if an action is not filed
within the specified time, the remedy is
deemed to have been waived . . . .
Lee v. Gaufin, 867 P.2d 572, 575 (Utah 1993).
¶27 The reasons for the procedural limits set by statutes
of limitations are many, including preventing unfair litigation
such as “surprise or ambush claims, fictitious and fraudulent
claims, and stale claims.” Vigos v. Mountainland Builders, Inc.,
2000 UT 2, ¶ 22, 993 P.2d 207. Another important purpose of

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statutes of limitations is preventing “the injustice which may
result from the prosecution of stale claims” due to the
“difficulties caused by lost evidence, faded memories and
disappearing witnesses.” Lund v. Hall, 938 P.2d 285, 291 (Utah
1997). In order to achieve these goals, statutes of limitations
cut off the right to bring an action after a particular period of
time.
¶28 In this case, Mr. Davis’s interpretation of section 10-
2-422 would potentially leave the annexation decision open to
challenge for years if a clerical error resulted in a failure to
send a tax assessment to even one landowner. This interpretation
does not limit the ability of parties to challenge the annexation
as a statute of limitations typically would, thus supporting the
determination that section 10-2-422 is not a statute of
limitations.
CONCLUSION
¶29 A comparison of the text of section 10-2-422 and
statutes that are obviously statutes of limitations indicates
that section 10-2-422 provides a conclusive presumption that
affects the substantive rights of the parties and is not a
statute of limitations. This interpretation is in harmony with
both the purpose of a conclusive presumption and the purpose of a
statute of limitations. Since section 10-2-422 is not a statute
of limitations, we affirm the district court’s holding that the
catch-all four-year limitations period applies and that Mr.
Davis’s cause of action against Provo City should be dismissed
for failure to timely file.
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¶30 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.