Counties v. UT Tax Comm

1 These counties include Beaver County, Box Elder County,
Cache County, Davis County, Iron County, Juab County, Millard
County, Morgan County, Salt Lake County, Summit County, Tooele
County, Utah County, Wasatch County, Washington County, and Weber
County.
2010 UT 50
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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Beaver County, Box Elder County, No. 20051010
Cache County, Davis County, Iron 20060033
County, Juab County, Millard County,
Morgan County, Salt Lake County,
Summit County, Tooele County, Utah
County, Wasatch County, Washington
County, and Weber County,
Petitioners,
v.
Utah State Tax Commission, and F I L E D
T-Mobile USA, Inc.,
Respondents. August 13, 2010
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Original Proceedings in this Court
Attorneys: David W. Scofield, Thomas W. Peters, Salt Lake City,
for petitioners
Mark L. Shurtleff, Att’y Gen., Laron J. Lind, Asst.
Att’y Gen., Salt Lake City, for respondent Utah State
Tax Commission
Mark K. Buchi, Steven P. Young, Salt Lake City, for
respondent T-Mobile USA, Inc.
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PARRISH, Justice:
INTRODUCTION
¶1 In this appeal, several Utah counties1 (the “Counties”)
have petitioned for review of the Utah State Tax Commission’s
assessment of T-Mobile USA’s (“T-Mobile”) taxable property in

2 For purposes of this opinion, we will call this appeal the
“Administrative Appeal.”
3 The Utah Code provides two separate avenues of appeal for
those who are dissatisfied with a decision of the Tax Commission.
Section 59-1-602 allows a party to appeal Tax Commission
decisions to a district court, sitting as a tax court, for a de
novo review and section 59-1-610 provides for the ability to
appeal to the Supreme Court for an administrative review.
No. 20051010 2
Utah for the 2003 tax year. Concurrent with this appeal, T-
Mobile sought de novo review of the Tax Commission’s assessment
in the district court, which acted as a “tax court,” pursuant to
Utah Code section 59-1-601, 602 (2008). The Counties’ appeal to
this court was stayed pending a final decision by the tax court.
¶2 The tax court issued a final decision on March 11,
2009. Because a final decision was reached, T-Mobile asserts
that rule 15 of the Utah Rules of Appellate Procedure requires
dismissal of this appeal or, in the alternative, that this appeal
is moot under rule 37 of the Utah Rules of Appellate Procedure.
We hold that rule 15 applies retroactively to the Counties’
appeal and requires dismissal. Because we hold that rule 15
applies, we do not reach the merits of the Counties’ appeal.
BACKGROUND
¶3 On May 1, 2003, the Utah Tax Commission’s Property Tax
Division assessed the value of T-Mobile’s taxable Utah property
at $124,577,850. T-Mobile and the Counties petitioned the Tax
Commission for a re-valuation of the property pursuant to Utah
Code section 59-2-1007(1)(a) (2008). The Tax Commission held a
formal administrative hearing and re-assessed T-Mobile’s property
at $117,850,000.
¶4 Subsequent to the issuance of the Tax Commission’s
order and new valuation, the Counties exercised their option to
appeal the Tax Commission’s decision directly to this court
pursuant to Utah Code section 59-1-610.2 T-Mobile concurrently
exercised its option to petition for a de novo review of the Tax
Commission’s order in the district court, sitting as a tax
court.3 The Administrative Appeal was stayed pending a final
order by the tax court, which it issued on March 11, 2009. The
tax court re-assessed the value of T-Mobile’s Utah property and
entered a valuation of $74,750,000.
¶5 Upon the entry of the tax court’s order containing the
new value of T-Mobile’s Utah property, the Counties, as well as

4 For purposes of this opinion, we will call this appeal the
“Tax Court Appeal.”
3 No. 20051010
the Tax Commission, appealed the tax court’s decision to this
court.4 Specifically, they challenged the valuation methodology
and standard of review employed by the tax court as well as the
final property value. Additionally, the Counties argued that T-
Mobile’s goodwill should be included in the overall value of the
taxable property. The proper valuation method and the inclusion
of goodwill in the property value are issues that the Counties
have raised in the Administrative Appeal as well as in the Tax
Court Appeal.
¶6 T-Mobile argues that rule 15 of the Utah Rules of
Appellate Procedure requires the dismissal of the Administrative
Appeal upon the issuance of the final order by the tax court. In
the alternative, they argue the Administrative Appeal is moot
under rule 37 of the Utah Rules of Appellate Procedure.
¶7 The Counties challenge the application of rule 15
because it became effective after they initiated their
Administrative Appeal. They assert that retroactive application
would be inappropriate where their substantive rights to bring
the Administrative Appeal would be affected. The Counties also
argue that the Administrative Appeal is not moot because there
remain justiciable issues about the true value of T-Mobile’s
taxable Utah property.
¶8 We have jurisdiction pursuant to Utah Code section 78A-
3-102(3)(e)(ii) (2008).
ANALYSIS
I. RULE 15 APPLIES RETROACTIVELY IN THIS CASE BECAUSE IT IS A
PROCEDURAL RULE AND DOES NOT AFFECT SUBSTANTIVE RIGHTS
¶9 Rule 15 of the Utah Rules of Appellate Procedure became
effective January 4, 2010, several months after the Counties
filed their petition for review of the Tax Commission’s order in
this court. Therefore, if rule 15 is to have any affect on our
decision in this appeal, we must first find that it applies
retroactively.
¶10 In Utah, there is a “‘long-standing rule . . . that a
legislative enactment which alters the substantive law . . . will
not be read to operate retrospectively unless the legislature has
clearly expressed that intention.’” Evans & Sutherland Computer
Corp. v. Utah State Tax Comm’n, 953 P.2d 435, 437 (Utah 1997)

5 Until today, this court has only had the occasion to
analyze the appropriateness of applying statutes retroactively.
This case involves a rule of procedure, rather than a statute.
Nonetheless we hold that the same substantive analysis may be
applied to either statutes or rules in determining the
appropriateness of retroactivity. See, e.g., Ex parte Luker, 25
So.3d 1152, 1155 (Ala. 2007) (deciding the appropriateness of
retroactively applying a Rule of Civil Procedure and holding that
a procedural rule that affected no substantive rights should be
applied retroactively).
No. 20051010 4
(second alteration in original) (quoting Madsen v. Borthick, 769
P.2d 245, 253 (Utah 1988)). However, the rule against
retroactive application does not apply “‘where a statute changes
only procedural law by providing a different mode or form of
procedure for enforcing substantive rights’ without enlarging or
eliminating vested rights.”5 Id. at 437-38 (quoting Roark v.
Crabtree, 893 P.2d 1058, 1062 (Utah 1995)). A procedural rule or
statute that may be retroactively applied is one that is
“‘enacted subsequent to the initiation of a suit which do[es] not
enlarge, eliminate, or destroy vested or contractual rights.’”
Bd. of Equalization v. Utah State Tax Comm’n, 864 P.2d 882, 884
(Utah 1993) (quoting Pilcher v. Dep’t of Soc. Servs., 663 P.2d
450, 455 (Utah 1983)). It is one that “controls the mode and
form of procedure for enforcing the underlying substantive
rights” and “merely affects the judicial machinery available for
determining substantive rights.” Evans & Sutherland, 953 P.2d at
438.
¶11 In Evans & Sutherland, we held that amended Utah Code
section 59-1-601, which allows for a de novo review of Tax
Commission decisions in the district court, was procedural and
thus could be applied retroactively. Id. We reasoned that
“section 59-1-601 control[led] the mode and form of procedure for
enforcing the underlying substantive rights.” Id. Although the
appellees in Evans & Sutherland argued retroactive application
would “expose [them] to substantial additional costs of
litigation because a de novo proceeding means starting over,” we
held the parties did not have a vested right to avoid additional
costs of litigation on review of an agency decision. Id. We
came to a similar conclusion in Due South, Inc. v. Department of
Alcoholic Beverage Control, where we held that an amendment to
Utah Code section 32A-1-120, which changed the applicable
standard of review, should apply retroactively. 2008 UT 71,
¶¶ 12-14, 197 P.3d 82. We reasoned that “[t]he standard of
review is a matter of procedural, rather than substantive, law
. . . [and] [p]rocedural statutes . . . which do not enlarge,
eliminate, or destroy vested or contractual rights apply not only

6 Even if rule 15 did not apply, this appeal would
nevertheless be subject to dismissal because it is moot. “‘An
appeal is moot if during the pendency of the appeal circumstances
change so that the controversy is eliminated, thereby rendering
(continued...)
5 No. 20051010
to future actions, but also to accrued and pending actions.” Id.
¶ 14 (citation omitted) (internal quotation marks omitted).
¶12 Similarly, rule 15 controls the mode and form of
procedure for enforcing the underlying substantive rights of the
parties in this Administrative Appeal. Those rights are the
proper valuation methods that should be used for assessing the
value of taxable property in Utah. The Counties, as well as the
Tax Commission, have asserted these rights in the tax court as
well as before this court in the Tax Court Appeal. Thus, the
dismissal of the Administrative Appeal will not enlarge,
eliminate or destroy the Counties’ vested rights. While the
application of rule 15 may ultimately result in different
standards of review of the Commission’s decision in the tax court
and in this court, that is a procedural matter and thus
retroactive application of rule 15 is proper. We hold it should
be applied in this case.
II. APPLICATION OF RULE 15 REQUIRES DISMISSAL OF THIS APPEAL
¶13 Rule 15 establishes the procedures to be followed in
the event that two separate but concurrent appeals are filed
challenging the same Tax Commission decision--one in the district
court, sitting as a tax court pursuant to Utah Code section 59-1-
602(1), and another in the Supreme Court pursuant to Utah Code
section 59-1-610. In such cases, the rule requires that the
appeal in the Supreme Court “shall be, absent compelling
circumstances, (1) stayed pending the resolution of the
proceeding before the district court, and (2) dismissed upon the
issuance of a final appealable order by the district court.”
Utah R. App. P. 15(a).
¶14 We have not previously examined what might constitute a
compelling circumstance that would enable us to retain an appeal
such as this one. And we do not do so in this case because the
Counties have not addressed whether compelling circumstances
exist that would prevent dismissal. The sole basis of their
argument against the application of rule 15 is that it is a
substantive rule and consequently should not be applied
retroactively. Because the Counties have not demonstrated a
compelling reason to retain this administrative appeal, we
dismiss it pursuant to rule 15.6

6 (...continued)
the relief requested impossible or of no legal effect.’” Frito-
Lay v. Utah Labor Comm’n, 2009 UT 71, ¶ 33, 222 P.3d 55 (quoting
Richards v. Baum, 914 P.2d 719, 720 (Utah 1996)). In this case,
the appeal filed by T-Mobile in the district court pursuant to
Utah Code section 59-1-601 (2008) and the subsequent valuation
decision issued by the district court rendered the Tax
Commission’s prior decision a “nullity.” Cf. Evans Sutherland
Computer Corp. v. Utah State Tax Comm’n, 953 P.2d 435, 443 (Utah
1997) (“Section 59-1-601’s grant of jurisdiction to the district
court . . . effectively eliminates the Commission’s role whenever
one of the parties chooses to seek review under that section.”)
Because the Tax Commission’s opinion that is the subject of this
Administrative Appeal became a legal nullity upon issuance of the
decision by the tax court, any determination by this court as to
the correctness of the Tax Commission’s opinion would be without
legal effect, rendering this appeal moot.
No. 20051010 6
CONCLUSION
¶15 We hold that rule 15 of the Utah Rules of Appellate
Procedure is a procedural rule and as such may be applied
retroactively. Application of rule 15 requires dismissal of this
Administrative Appeal because the Counties have not demonstrated
compelling circumstances for retaining it. Because we hold that
rule 15 applies, we do not reach the merits of the Counties’
appeal.
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¶16 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Nehring, and Judge Pullan concur in Justice Parrish’s
opinion.
¶17 District Judge Derek P. Pullan sat.