Jensen v. Young

2010 UT 67
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Michael H. Jensen, 	No. 20080727
Plaintiff and Appellant,
v.
F I L E D
Allen K. Young,
Defendant and Appellee. 	November 23, 2010
---
Fourth District, Provo Dep’t
The Honorable Samuel D. McVey
No. 070400519
Attorneys: 	Philip R. Fishler, Peter H. Christensen, Sade A.
Turner, Salt Lake City, for plaintiff
Richard D. Burbidge, Andrew J. Dymek, Jefferson W.
Gross, Salt Lake City, for defendant
---
PARRISH, Justice:
INTRODUCTION
¶1 	This case involves legal malpractice claims brought by
Dr. Michael H. Jensen against attorney Allen K. Young for failing
to file defamation claims against United Television, Inc. and
Mary Sawyers (collectively, “Channel 4”) within the statute of
limitations. 	We are asked to determine whether the district
court erred in granting summary judgment in favor of Mr. Young
because Dr. Jensen failed to file his malpractice claims within
the four-year statute of limitations. 	Specifically, we must
decide whether the district court erred in not applying the
discovery rule to toll Dr. Jensen’s malpractice claims until an
adverse judgment was entered against Dr. Jensen in his underlying
suit against Channel 4. 	Because the statute of limitations on
Dr. Jensen’s malpractice claims expired before Dr. Jensen filed
suit against Mr. Young and because Dr. Jensen knew or should have

No. 20080727 	2
known of his injuries and possible cause of action for
malpractice before the statute of limitations expired, we
conclude that the discovery rule does not apply. 	We therefore
affirm the district court’s grant of summary judgment in favor of
Mr. Young.
BACKGROUND
¶2 	Because this case comes to us on summary judgment, we
construe the facts in a light most favorable to Dr. Jensen, the
nonmoving party. 	This case relates to three news stories that
Channel 4 broadcasted on September 5, 1995, June 17, 1996, and
November 6, 1996. 	These news stories implied that Dr. Jensen
illegally prescribed drugs to patients. 	The day after the first
broadcast aired, Dr. Jensen’s employer terminated him and the
Utah State Department of Professional Licensing (“Department”)
began an investigation into his conduct. 	Dr. Jensen hired
attorney Max Wheeler to represent him in connection with the
Department investigation but sought alternative counsel to
represent him with respect to a possible civil suit against
Channel 4.
¶3 	In September 1995, Dr. Jensen met with Mr. Young to
determine whether Mr. Young would be interested in representing
him in a civil suit against Channel 4. 	At this meeting, Dr.
Jensen showed Mr. Young a tape of the first broadcast, and Mr.
Young allegedly expressed interest in representing Dr. Jensen in
his case against Channel 4. 	But Mr. Young told Dr. Jensen he
wanted to await the outcome of the Department investigation
before agreeing to take Dr. Jensen’s case. 	At no time during
this meeting did Mr. Young warn Dr. Jensen of the one-year
statute of limitations applicable to defamation claims.
¶4 	No retainer agreement was signed as a result of Dr.
Jensen’s first meeting with Mr. Young. 	But Dr. Jensen asserts
that, at the time, he believed Mr. Young was his attorney.
Despite this belief, Dr. Jensen also met with other attorneys to
discuss his possible civil claims against Channel 4. 	One of
these attorneys declined to take Dr. Jensen’s case against
Channel 4 because of statute of limitations concerns.
¶5 	On November 12, 1996, shortly after the third broadcast
aired, Dr. Jensen sent Mr. Young a letter and a transcript of the
third broadcast. 	In response to this letter, Mr. Young allegedly
told Dr. Jensen that “we shouldn’t sit on this any longer, the
third newscast is inflammatory and . . . we need to file a

3 	No. 20080727
complaint.” 	On April 9, 1997, Dr. Jensen signed a fee agreement
pursuant to which he retained Mr. Young to represent him in his
suit against Channel 4.
¶6 	On June 27, 1997, more than a year after the first and
second broadcasts had aired, Mr. Young filed a complaint against
Channel 4 asserting five claims: 	(1) fraud, (2) intentional
interference with prospective economic relations, (3) negligent
misrepresentation, (4) defamation, and (5) negligence. 	Shortly
after the complaint was filed, Mr. Young informed Dr. Jensen that
he had missed the statute of limitations for the defamation
claims associated with the first and second broadcasts. 	But when
Dr. Jensen asked Mr. Young how this would affect his case, Mr.
Young allegedly downplayed the impact and insisted that Dr.
Jensen could recover his damages arising from the first and
second broadcasts under his alternative claim of fraud, which was
not barred by the statute of limitations. 	On January 28, 1999,
Mr. Young withdrew as Dr. Jensen’s counsel in the lawsuit, and
Dr. Jensen retained attorney Dale Gardiner to represent him.
¶7 	Thereafter, Channel 4 moved to dismiss Dr. Jensen’s
defamation claims arising from the first and second broadcasts,
asserting they were barred by the statute of limitations. 	It
also moved to dismiss the fraud and negligent misrepresentation
claims as being legally insufficient. 	At this same time, Dr.
Jensen moved to amend his complaint to assert four additional
claims, which included a claim for false light invasion of
privacy. 	The district court granted Channel 4's motion to
dismiss the fraud, negligent misrepresentation and defamation
claims that arose from the first and second broadcasts. 	And it
simultaneously granted Dr. Jensen’s motion to amend his
complaint. 	Shortly after Dr. Jensen’s defamation claims were
dismissed, Dr. Jensen and Mr. Gardiner discussed the possibility
of bringing a malpractice action against Mr. Young for missing
the statute of limitations on the defamation claims. However, Mr.
Gardiner told Dr. Jensen he was unwilling to pursue a malpractice
case against Mr. Young because he did not sue other lawyers.
¶8 	Dr. Jensen’s civil suit against Channel 4 proceeded to
trial on the remaining claims. 	Of these claims, only the
defamation and false light claims are relevant to this appeal.
At the conclusion of the trial, the jury returned a verdict in
Dr. Jensen’s favor, awarding him over two million dollars in
damages on his false light claims arising from the first three
broadcasts and his defamation claim arising from the third
broadcast. 	In 2005, we vacated the jury’s verdict on Dr.

1 This statute was numbered as section 78-12-25(3) when the
issues in this dispute arose. 	Because the amendment renumbering
the statute made no substantive changes, we refer to the statute
as currently numbered.
No. 20080727 	4
Jensen’s false light claims, holding that these claims were also
barred by the one-year statute of limitations. 	Jensen v.
Sawyers, 2005 UT 81, ¶¶ 34, 58, 130 P.3d 325. 	Additionally, we
vacated the jury’s award of economic damages associated with the
defamation claim arising from the third broadcast because there
was no evidence that Dr. Jensen suffered any economic losses as a
result of the third broadcast. 	Id. ¶¶ 107-16. 	Rather, any
economic losses he sustained were the result of one or both of
the previous broadcasts. 	Id.
¶9 	On February 5, 2007, Dr. Jensen filed a malpractice
lawsuit against Mr. Young. 	The lawsuit sought to recover damages
from Mr. Young for missing the filing deadline on Dr. Jensen’s
defamation claims. 	In response, Mr. Young filed a motion for
summary judgment, arguing that Dr. Jensen’s malpractice claims
were barred by the four-year statute of limitations. 	See Utah
Code Ann. § 78B-2-307(3) (2008). 1 	The district court agreed with
Mr. Young and held that Dr. Jensen’s malpractice claims were
barred by the statute of limitations. 	Dr. Jensen appealed. 	We
have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j)
(Supp. 2010).
STANDARD OF REVIEW
¶10 	“We review a district court’s decision to grant summary
judgment for correctness, [affording] no deference to the
district court’s conclusions, and we view the facts and all
reasonable inferences in the light most favorable to the
nonmoving party.” 	Bodell Constr. Co. v. Robbins, 2009 UT 52,
¶ 16, 215 P.3d 933. 	“‘The applicability of a statute of
limitations and . . . the discovery rule are questions of law,
which we review for correctness.’” 	Colosimo v. Roman Catholic
Bishop, 2007 UT 25, ¶ 11, 156 P.3d 806 (alteration in original)
(quoting Spears v. Warr, 2002 UT 24, ¶ 32, 44 P.3d 742).
However, “application of the discovery rule also ‘involves a
subsidiary factual determination--the point at which a person
reasonably should know that he or she has suffered a legal
injury.’” 	Id. (quoting Spears, 2002 UT 24, ¶ 32). 	We therefore
review the district court’s decision to grant Mr. Young’s motion
for summary judgment for correctness but review the subsidiary

2 Mr. Young also argues that we should affirm the district
court’s grant of summary judgement on the alternative ground that
Dr. Jensen’s malpractice claims are without merit. 	Because we
affirm the district court on the statute of limitations, we need
not and do not reach Mr. Young’s alternative argument.
5 	No. 20080727
factual determination in the light most favorable to the
nonmoving party, Dr. Jensen.
ANALYSIS
¶11 	Dr. Jensen argues that the district court erred in not
applying the discovery rule to toll the statute of limitations on
his malpractice claims against Mr. Young. 	Specifically, Dr.
Jensen argues that his malpractice claims against Mr. Young were
tolled until an adverse ruling was made in his underlying suit
against Channel 4, which he claims did not occur until this court
reversed the jury verdict in favor of Dr. Jensen. 	See Jensen v.
Sawyers, 2005 UT 81, ¶ 143, 130 P.3d 325. 	We disagree.
¶12 	The statute of limitations on Dr. Jensen’s malpractice
claims were triggered when Mr. Young missed the deadline for
filing Dr. Jensen’s defamation claims. 	Because Dr. Jensen knew
or should have known of his injury and his possible cause of
action for malpractice before the limitations period ran, we
conclude that the discovery rule does not apply to Dr. Jensen’s
malpractice claims. 	We first discuss whether Dr. Jensen filed
his malpractice claims within the limitations period. 	We then
discuss whether the discovery rule applies to toll the
limitations period on Dr. Jensen’s malpractice claims. 2
I. 	DR. JENSEN FAILED TO FILE HIS MALPRACTICE CLAIMS WITHIN THE
LIMITATIONS PERIOD
¶13 	First, we address whether Dr. Jensen filed his
malpractice claims before the limitations period expired. 	The
“statute of limitations begins to run upon the occurrence of the
last event required to form the elements of the cause of action.”
Williams v. Howard, 970 P.2d 1282, 1284 (Utah 1998). 	The last
event required to form the elements of a cause of action for
legal malpractice occurs on the date the limitations period runs
on a client’s claim. 	See id. 	Therefore, a client’s claim for
legal malpractice accrues on the date that the attorney misses
the statute of limitations. 	Id.; see also Huff v. Roach, 106
P.3d 268, 270 (Wash. Co. App. 2005) (indicating that the statute

No. 20080727 	6
of limitations begins to run on a legal malpractice claim when
the attorney “misse[s] the statute of limitations, effectively
invading [his client’s] legal interests”); see also Adams v.
Paul, 904 P.2d 1205, 1209 (Cal. 1995) (“In the ‘classic’ missed
statute situation, in which the attorney negligently fails to
file the underlying lawsuit within the applicable statutory
period and does nothing further, the plaintiff suffers actual
harm at the time the statutory period lapses because, assuming
the claim was otherwise viable, the right and/or remedy of
recovery on the action has been substantially impaired.”).
¶14 	Because Dr. Jensen’s malpractice suit against Mr. Young
was premised on the fact that Mr. Young missed the statute of
limitations on Dr. Jensen’s defamation claims, the limitations
period on Dr. Jensen’s malpractice action against Mr. Young began
to run when the statute of limitations expired on Dr. Jensen’s
defamation claims. 	The limitation period on Dr. Jensen’s
defamation claims ran on September 5, 1996 for the first
broadcast and on June 17, 1997 for the second broadcast. 	Thus,
his legal malpractice claims against Mr. Young arose on those
dates.
¶15 	The limitations period for a legal malpractice claim is
four years. 	See Utah Code Ann. § 78B-2-307(3) (2008). 	Applying
the four-year statute of limitations to the dates on which Dr.
Jensen’s legal malpractice claims arose reveals that Dr. Jensen’s
malpractice claims against Mr. Young expired on September 5,
2000, for damages arising from the first broadcast and on June
17, 2001 for damages arising from the second broadcast. 	Because
Dr. Jensen did not file his malpractice claims against Mr. Young
until February 7, 2007 which is more than six years after the
limitations period expired for the first broadcast and more than
five years after the limitations period expired for the second
broadcast, his legal malpractice claims against Mr. Young were
not filed within the applicable statute of limitations.
II. 	THE DISCOVERY RULE DOES NOT APPLY TO DR. JENSEN’S CLAIMS
¶16 	Having determined that Dr. Jensen did not file his
malpractice claims before the limitations period expired, we now
consider whether special circumstances exist, which would toll
the running of the statute of limitations. 	Dr. Jensen argues
that the discovery rule applies to toll the statute because he
did not discover his injuries until we vacated the jury’s
verdict, which had awarded him over two million dollars on his
claims of false light invasion of privacy arising from the first

7 	No. 20080727
three broadcasts and defamation arising from the third broadcast.
Dr. Jensen reasons that until we issued our opinion vacating the
verdict, he was seemingly uninjured by the loss of his defamation
claims relating to the first and second broadcasts. 	But Mr.
Young argues that the discovery rule is not applicable to toll
the statute because Dr. Jensen knew or should have known he was
injured when the district court dismissed his defamation claims.
In other words, Mr. Young argues that Dr. Jensen suffered legal
injury upon the dismissal of his defamation claims despite the
fact that the two million dollar jury verdict mitigated the
extent of his damages. 	We agree with Mr. Young.
¶17 	“The discovery rule is a judicially created doctrine
under which the statute of limitation does not begin to run until
the plaintiff learns of or in the exercise of reasonable
diligence should have learned of the facts which give rise to the
cause of action.” 	Williams v. Howard, 970 P.2d 1282, 1284 (Utah
1998). 	The discovery rule applies in three circumstances:
(1) in situations where the discovery rule is
mandated by statute; (2) in situations where
a plaintiff does not become aware of the
cause of action because of the defendant’s
concealment or misleading conduct; and (3) in
situations where the case presents
exceptional circumstances and the application
of the general rule would be irrational or
unjust, regardless of any showing that the
defendant has prevented the discovery of the
cause of action.
Warren v. Provo City Corp., 838 P.2d 1125, 1129 (Utah 1992)
(citations omitted). 	Dr. Jensen argues the exceptional
circumstances prong of the discovery rule applies in this case.
¶18 	The “ultimate determination” under the exceptional
circumstances prong of the discovery rule “turns on a balancing
test.” 	Id. 	But before a plaintiff is eligible for application
of the balancing test, he must make a threshold showing that he
was “‘[un]aware of his injuries or damages and a possible cause
of action before the statute of limitations expire[d].’”
Williams, 970 P.2d at 1286 (quoting Atwood v. Sturm, Ruger & Co.,
823 P.2d 1064, 1065 (Utah 1992)). 	We therefore turn to the
threshold issue of whether Dr. Jensen was aware of (1) his
injuries or damages, and (2) a possible cause of action for

3 Dr. Jensen also argues that he could not have discovered
his injuries because Mr. Young allegedly insisted that Dr. Jensen
could recover his damages under his alternative claim of fraud.
But this argument misses the point. 	Whether Dr. Jensen believed
that he could recover his damages under an alternative cause of
action does not change the fact that he had knowledge of his
injury. 	The discovery rule does not apply where a plaintiff
knows of or should have known of his injuries or damages. 	See
(continued...)
No. 20080727 	8
malpractice before the statute of limitations expired on his
malpractice claims against Mr. Young.
A. 	Dr. Jensen Was Aware That He Had Been Legally Injured By The
Loss of His Defamation Claims
¶19 	First, we address whether Dr. Jensen was aware of his
injuries or damages before the statute of limitations expired.
In the legal malpractice setting, injury is defined as the “‘loss
or impairment of a right, remedy, or interest’” that otherwise
would have been available but for the attorney’s negligence.
Wagner v. Sellinger, 847 A.2d 1151, 1156 (D.C. 2004) (quoting
Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 22.11,
at 380 (5th ed. 2000)); Brown v. Behles & Davis, 86 P.3d 605, 608
(N.M. Ct. App. 2004) (“A party sustains actual injury when the
alleged malpractice results in the loss of a right, remedy or
interest. . . .” (internal quotation marks omitted)). 	When an
attorney negligently misses a statutory deadline, which
forecloses a client’s potential cause of action, the client is
injured. 	See Williams, 970 P.2d at 1284-86; Adams v. Paul, 904
P.2d 1205, 1209 (Cal. 1995) (indicating that a client is injured
when an attorney negligently fails to file the client’s claim
within the statute of limitations). 	If the client has knowledge
of his injury, he is precluded from asserting the discovery rule.
¶20 	Here, Dr. Jensen was aware or should have been aware
that he had been injured. 	Mr. Young specifically told Dr. Jensen
that he had “blown” the statute of limitations for Dr. Jensen’s
defamation claims and that, as a result of his mistake, Dr.
Jensen’s defamation claims were likely barred. 	And Dr. Jensen
received additional notice that he had been injured when the
district court dismissed his defamation claims as being untimely.
Dr. Jensen therefore knew or should have known that he was
injured before the limitations period expired on his malpractice
claims. 3

3 (...continued)
Williams, 970 P.2d at 1286; see also Huff v. Roach, 106 P.3d 268,
270 (Wash. Ct. App. 2005) (“In the legal malpractice context,
injury is the invasion of another’s legal interest, while damages
are the monetary value of those injuries.”). 	In this case, Dr.
Jensen knew or should have known that he had been both injured
and damaged. 	Dr. Jensen knew or should have known he was injured
when the district court dismissed his causes of action for
defamation. 	Furthermore, he knew or should have known that he
suffered damages when he incurred legal fees in defending against
the motion to dismiss and in amending his complaint to add
alternative theories of recovery.
9 	No. 20080727
B. 	Dr. Jensen Knew or Should Have Known of His Possible
Malpractice Action
¶21 	We next address whether Dr. Jensen knew or reasonably
should have known of the existence of a possible cause of action
for malpractice. 	A plaintiff is reasonably aware of a potential
cause of action for malpractice if the plaintiff has actual
notice of the malpractice “‘or by reasonable diligence and
inquiry should know, the relevant facts of the’” malpractice.
See Colosimo v. Roman Catholic Bishop, 2007 UT 25, ¶ 17, 156 P.3d
806 (quoting Baldwin v. Burton, 850 P.2d 1188, 1196 (Utah 1993)).
“In other words, if a party has knowledge of some underlying
facts, then that party must reasonably investigate potential
causes of action because the limitations period will run.” 	Id.
In Williams, where an attorney negligently missed the deadline
for filing a notice of claim, we held that the client was aware
of a possible cause of action for malpractice because the client
knew his attorney’s negligence resulted in the client’s claim
being time barred. 	970 P.2d at 1283-86. 	We concluded that
because the attorney informed the client of his mistake well
within the four-year statute of limitations for a malpractice
claim, the client was aware of his possible malpractice claim
before the statute of limitations ran. 	Therefore, the discovery
rule did not apply. 	Id. 1285-86.
¶22 	In this case, Dr. Jensen knew or should have known of
his possible malpractice action against Mr. Young before the
limitations period expired. 	Like the attorney in Williams, Mr.
Young informed Dr. Jensen well within the limitations period that
he had missed the statutory deadline and that, as a result, the
defamation claims were likely time barred. 	And, unlike the

No. 20080727 	10
client in Williams, Dr. Jensen received additional notice of his
malpractice claims before the statute of limitations expired when
the district court dismissed Dr. Jensen’s defamation claims on
the basis that they were time barred. 	Indeed, Dr. Jensen
discussed bringing a possible malpractice claim against Mr. Young
with his new attorney, Mr. Gardiner, and incurred legal fees in
opposing Channel 4's motion to dismiss his defamation claims.
Nevertheless, Dr. Jensen failed to file his malpractice claims
until February 2007, more than six years after the expiration of
the statute of limitations on his malpractice claim associated
with the first broadcast and more than five years after the
statute of limitations on his claim associated with the second
broadcast.
¶23 	Despite these uncontested facts, Dr. Jensen argues that
he could not have discovered his injury until an adverse judgment
was entered in his underlying suit against Channel 4. 	To support
the proposition that the statute of limitations on a legal
malpractice suit is tolled until an adverse judgment is rendered
in the underlying proceeding in which the malpractice occurred,
Dr. Jensen relies on Welborn v. Shipman, 608 So. 2d 334, 335
(Ala. 1992); Wagner, 847 A.2d 1151; Lucey v. Law Offices of
Pretzel & Stouffer, 703 N.E.2d 473 (Ill. App. Ct. 1998); Johnson
v. Cornett, 474 N.E.2d 518 (Ind. Ct. App. 1985); and K.J.B., Inc.
v. Drakulich, 811 P.2d 1305 (Nev. 1991) (per curiam). 	But Dr.
Jensen’s reliance on these cases is misplaced as none of them
involve the application of the discovery rule. 	Rather, these
cases involve the question of whether the statute of limitations
even began to run because the events required to form the
elements of a malpractice claim had yet to occur. 	See Williams,
970 P.2d at 1284. Specifically, the plaintiffs in these cases did
not sustain any actual damage, which is a required element of a
legal malpractice claim, until there was an adverse ruling in the
underlying suit. 	See Bennett v. Jones, Waldo, Holbrook &
McDonough, 2003 UT 9, ¶ 41, 70 P.3d 17 (defining actual damages
as an element of a legal malpractice claim); see also Welborn,
608 So. 2d at 336 (holding that until an adverse ruling was made
on the plaintiff’s motion for a new evidentiary hearing, the
plaintiff did not sustain any injury for which damages could be
awarded); Wagner, 847 A.2d at 1156 (holding that the plaintiff
could not “articulate any injury that could yield ascertainable
damages”); Lucey, 703 N.E.2d at 478-79 (holding that plaintiff
did not incur any damages directly attributable to her attorney’s
neglect); Johnson, 474 N.E.2d at 519 (holding that the plaintiff
sustained no damages until the trial court issued a final order);
K.J.B., Inc., 811 P.2d at 1306 (holding that the statute of

11 	No. 20080727
limitations on the plaintiff’s claim for negligent prosecution
did not accrue because the plaintiff had sustained no damages).
Because the plaintiffs in these cases sustained no actual damages
until there was an adverse ruling, their malpractice claims had
not accrued and the limitations period had not begun to run.
¶24 	Unlike the plaintiffs in the cases on which Dr. Jensen
relies, Dr. Jensen sustained actual damages before this court
issued its opinion fully resolving his underlying case against
Channel 4. 	Mr. Young’s failure to timely file Dr. Jensen’s
defamation claims resulted in Dr. Jensen being completely
deprived of his interest in viable claims for defamation based on
the first and second broadcasts. 	Additionally, Dr. Jensen
incurred damages in the form of legal fees incurred in defending
against the dismissal of his defamation claims and in attempting
to mitigate his damages associated with that dismissal by
amending his complaint to plead alternative theories of recovery.
Because Dr. Jensen sustained both injury and damages when Mr.
Young failed to timely file his defamation claims, the
limitations period on Dr. Jensen’s malpractice claims began to
run at that point.
¶25 	We understand that the question of whether Dr. Jensen
incurred damages is complicated by the existence of alternative
remedies that he hoped would mitigate all or a substantial
portion of his damages. 	But Dr. Jensen’s attempts to mitigate
the extent of his damages by pleading alternative claims did not
affect the fact that he sustained damages. 	Dr. Jensen could have
simply filed his malpractice action and then requested that the
court stay the action until the conclusion of the proceedings
against Channel 4. 	Alternatively, the uncertainty as to the
extent of Dr. Jensen’s damages could have been addressed by the
parties entering into a tolling agreement.
¶26 	In summary, we are unpersuaded that the limitations
period on Dr. Jensen’s malpractice claims was tolled until an
adverse judgement was rendered in his underlying suit against
Channel 4. 	We conclude that the district court did not err in
refusing to apply the discovery rule to toll Dr. Jensen’s
malpractice claims.
CONCLUSION
¶27 	We hold that Dr. Jensen did not file his malpractice
claims against Mr. Young within the statute of limitations. 	We
also hold that the discovery rule does not toll the statute of

No. 20080727 	12
limitations on Dr. Jensen’s malpractice claims. 	We therefore
affirm the district court’s grant of summary judgement on the
basis that Dr. Jensen’s malpractice claims against Mr. Young are
barred by the statute of limitations.
¶28 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Nehring, and Judge Glenn Iwasaki concur in Justice
Parrish’s opinion.
¶29 	Due to his retirement, Justice Wilkins did not
participate herein. 	Judge Glenn K. Iwasaki sat.