author: KEITH RAPP, Judge:

text:
    2002 OK CIV APP 61
    HI-PRO ANIMAL HEALTH, a division of Friona Industries, L.P., Plaintiff/ Appellant, v. Rusty HALVERSON, Individually and d/b/a Halverson Ranch, Defendant/Appellee.
    No. 95,949.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    April 16, 2002.

      Sam L. Stein, Esq., Garner & Stein, L.L.P., Cherokee, OK, for Plaintiff/Appellant.
    Rodney C. Ramsey, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, OK, for Defendant/Appellee.
   Opinion by

KEITH RAPP, Judge:

T 1 The trial court plaintiff, Hi-Pro Animal Health (Hi-Pro), appeals the decision of the trial court denying Hi-Pro's request for attorney fees in its action to domesticate a foreign judgment against the trial court defendant, Rusty Halverson (Halverson.)

BACKGROUND

T2 The facts are not disputed. Hi-Pro obtained a default judgment in Texas against Halverson on an account. The judgment included attorney fees according to Texas law.

13 Hi-Pro domesticated the judgment in Oklahoma pursuant to the Uniform Enforcement of Foreign Judgments Act. Halverson unsuccessfully challenged the jurisdiction of the Texas court by seeking to vacate the judgment in the Oklahoma action. Halver-son filed a motion to reconsider and that, too, was denied.

T4 Hi-Pro then requested attorney fees for successfully defending against the challenges to the domestication of the judgment. The trial court denied this request on the ground that no authority existed for an award of attorney fees. Hi-Pro appeals.

STANDARD OF REVIEW

15 Whether a party is entitled to attorney fees presents a question of law. Hawszipta v. Independent Sch. Dist. No. I-004 of Noble County, 2000 OK. CIV APP 113, ¶26, 13 P.3d 98, 108. Moreover, where the facts are not disputed an appeal presents only a question of law. Baptist Bldg. Corp. v. Barnes, 1994 OK CIV APP 71, 15, 874 P.2d 68, 69. The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, LLC. v. Wingrod Investment Corp., 1996 OK 125, 982 P.2d 1100 n. 1. Last, matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling. Keizor v. Sand Springs Ry. Co., 1998 OK CIV APP 98, 1 5, 861 P.2d 326, 328.

ANALYSIS AND REVIEW

16 Hi-Pro filed its action in Oklahoma pursuant to the Uniform Enforcement of Foreign Judgments Act. 12 O.S.1991, §§ 719-726. Thus, it did not elect to bring a separate enforcement action. as permitted under Section 725. In view of the strict interpretation given the American Rule by the Oklahoma Supreme Court, this Court must examine the Uniform Enforcement of Foreign Judgments Act, as enacted in Oklahoma, to ascertain whether it expressly authorizes the award of an attorney fee either as an aspect of the domestication action or as a form of continuation of the underlying action, and thus analogous to appeal related fees.

Absence of Express Provision in the Act

17 The Oklahoma Supreme Court recently reaffirmed that the American Rule governs the right of a litigant to recover fees; thus, there must be a statutory or contractual basis for the award. Barnes v. Oklahoma Form Bureau Mut. Ins. Co., 2000 OK 55, ¶ 46, 11 P.3d 162, 178-79. The Court strictly construes any authority for fees and expenses. Borst v. Bright Mtg. Co., 1991 OK 121, 824 P.2d 1102 at n. 5; Federal Financial Co. v. Grady County, Oklahoma, 1999 OK CIV APP 90, 988 P.2d 908. In Borst the Court distinguished between prevailing in an action to collect on a promissory note and prevailing in an action to cancel the promissory note. The statute authorized an attorney fee only in the former case.

[ 8 The former inquiry leads to a straightforward answer: The Act does not have an express provision for award of attorney fees, and, therefore, some other justification would be required to sustain Hi-Pro's argument here. The decision of Willhite v. Willhite, 1976 OK 17, 546 P.2d 612, supports this conclusion.

19 The former wife in Willhite recorded her Texas decree under the Act. Subsequently, the former wife sought to garnish her ex-husband's wages to recover child support arrearages. He challenged the jurisdiction of the Oklahoma court and the sufficiency and effectiveness of the garnishment proceedings. In ruling against the ex-husband, the Court was called upon to address the former wife's request for attorney fees. Attorney fees were authorized by 12 O.S.1971, § 1276, now 48 O.S. Supp.2000, § 110, and by the garnishment statute, 12 O.S.1971, § 1190.

4 10 The Court denied attorney fees under either statute. Although the Court's Opinion did not discuss the matter of whether the Uniform Enforcement of Foreign Judgments Act authorized an award, the clear import of the ruling was that the Act did not authorize the award. Willhite, 1976 OK 17 at 123, 546 P.2d at 617.

. 1 11 Other jurisdictions also deny attorney fees when challenges are offered to the foreign judgment. The Washington Court of Appeals denied attorney fees because the Act did not provide for such fees in Woodcraft Const. Inc. v. Hamilton, 56 Wash.App. 885, 786 P.2d 307, 308 (1990). In that case, as here, the alleged judgment debtor, Hamilton, successfully defended .a challenge to. forelgn judgment. .

{12 In Dooley v. Rubin, 422 Pa.Super. 57, 618 A.2d 1014, 1017-18 (1993), the judgment creditor also sought fees under the Act. The Court there did not disturb the fee award contained within the judgment, but denied further fees based upon the Act. The Court also denied fees on an alternative theory arguing that resisting the claim was bad faith.

€13 The Qregon statute interpreted in Woodruff v. Woodruff, 41 Or.App. 529, 599 P.2d 1182 (1979), authorized recovery of "court costs incidental to the proceeding. In Woodruff, the wife successfully defended, on appeal, her foreign judgment and her right to enforcement of that judgment. However, the Oregon Court ruled that the Act's failure to specifically provide for attorney fees precluded the wife's claim for fees and that the provision for costs did not include attorney fees. Woodruff, 599 P.2d at 1184.

4.

Fees Derived From the Underlying Action

14 Hi-Pro argues that it is entitled to an attorney fee because the underlying action resulting in judgment authorized an attorney fee. Hi-Pro equates this case to the situation in Gearhart Industries, Inc. v. Grayfox Operating Co., 1992 OK CIV APP 44, 829 P.2d 1005.

T 15 In that case, Grayfox had prevailed in an action filed by Gearhart when the trial court entered a dismissal. - Grayfox was awarded an attorney fee. Four years later Gearhart filed a petition to vacate that judgment. The petition to vacate was dismissed by the trial court and another attorney fee was awarded to Grayfox. On appeal, the Court ruled that there was sufficient connection between the Petition to vacate and the original action, which authorized a fee, so as to warrant an additional attorney fee award. Gearhart Industries, Inc., 1992 OK CIV APP 44 at 110, 829 P.2d at 1007. The Court reasoned that the petition to vacate was analogous to an appeal and that an attorney fee was authorized just as it would be in the case of an appeal. The Court furthered reasoned that to disallow a fee under the facts of the case would defeat the legislative purpose of authorizing attorney fee recovery in actions to recover for sale of goods and services. Id. at 1 9, 829 P.2d at 1007.

T 16 Section 721 of the Act does provide as follows:

A copy of any foreign judgment authenticated in accordance with the applicable Act of Congress or of the statutes of this state may be filed in the office of the court clerk of any county of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the district court of any county of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a district court of this state and may be enforced or satisfied in like manner. Provided, however, that no such filed foreign judgment shall be a lien on real estate of the judgment debtor until a certified copy of the judgment so 'filed is also filed in the office of the county clerk in the county where the real estate is located. (Emphasis added.)

T17 The question then becomes whether the language of Section 721, coupled with the approach in Gearhart Industries, Inc., establishes a basis for the award of attorney fees. This Court answers the question in the negative because the underlying cause of action permits attorney fees does not in itself authorize a fee award in an action under the Uniform Enforcement of Foreign Judgments Act. The reasons for this conclusion follows.

18 First, a contrary conclusion necessarily disregards the strict construction of the American Rule consistently applied by the Oklahoma Supreme Court. Hi-Pro's argument requires that authority for fees be inferred. However, under the strict application of the American Rule of this State, the Act must unequivocally provide for attorney fees and it does not do so.

119 Second, the Act does not provide for a continuation of the underlying action as in an appeal. The Act constitutes a means for enforcement of a judgment from another state, rather than a continuation of the cause of action, and, when filed, the out-of-state judgment becomes a new judgment in this State. Drllevich v. Stock, 1998 OK 839, 958 P.2d 1277. Again, Willhite is relevant because the Court there denied fees based upon the underlying action of divorce and garnishment. Willhite, 1976 OK 17 at 1 28, 546 P.2d at 617.

T20 Third, considering the action on the judgment to be a continuation of the underlying action is inconsistent with the rule that the cause of action. merged with the judgment. Upon entry of the judgment, the cause of action is merged in the judgment. The original cause of action loses its identity and character, and is changed and transformed into another cause of action, a judgment, and it can no longer be made the basis of another action. Johnson v. State ex rel. Dept. of Public Safety, 2000 OK 7, ¶ 9, 2 P.3d 384, 387; Mason v. Finley, 1928 OK 264, 116-7, 272 P. 408, 409; Black v.. Russell, 1927 OK 485, ¶ 11, 266 P. 448, 449; Cressler v. Brown, 1920 OK 291, 192 P. 417, 421.

121 The merger rule applies in the context of an enforcement action for a judgment from another state. Huntington Nat. Bank v. Sproul, 116 NM. 254, 861 P.2d 985, 939 (1998). As a consequence, the underlying authority for award of an attorney fee also merged into the judgment and ceased to exist, leaving mo authority for an attorney fee award. Woodcraft Const., Inc. v. Hamilton, 56 Wash.App. 885, 786 P.2d 307, 308 (1990). In Wooderaft the promissory note which authorized attorney fees was merged into a judgment on the debt rendered in Alaska. When the judgment was enforced in Washington the Court there denied attorney fees because the Act carried no authority for fees and the underlying authority merged into the judgment. ‘ '

122 In Johnson, the Court observed that the doctrine of merger will not be extended when to do so creates an inequitable result. Johnson, 2000 OK 7 at ¶11, 2 P.3d at 337. There, the rule would have prevented recovery on the underlying claim, but such is not the case here for Hi-Pro. Hi-Pro's judgment, which includes an attorney fee awarded by the court in Texas, is undiminished and, thus, its judgment will be enforced in Oklahoma. Moreover, Hi-Pro has not asserted a claim for fees based upon equitable considerations. °

23 Thus, Gearhart Industries, Inc. may be distinguished because the facts there did not involve enforcement of another state's judgment pursuant to the Uniform Enforcement of Foreign Judgments Act. Moreover, if the result in Gearhart Industries, Inc. is extended to the present facts, then the case is incopsistent with Willhite and with the rulings from other jurisdictions.

CONCLUSION

T24 The American Rule regarding attorney fees receives strict application from the Oklahoma Supreme Court. The Uniform Enforcement of Foreign Judgments Act does not specifically provide for attorney fees. Moreover, the underlying action is no longer support for attorney fees in an action to enforce the judgment under the Act. Therefore, the trial court did not err in its judgment and will be affirmed.

11 25 AFFIRMED.

COLBERT, P.J., and GOODMAN, J., concur.

      . There are three ways, including family law instances, to enforce a sister state civil judgment. A common law action may be brought, the family law statutes may be employed, or the Uniform Act may be utilized. Hudson v. Hudson, 1976 OK CIV APP 47, 12, 569 P.2d 521, 523.

      . The provision for costs is found in Section 14 of the 1948 version of the Uniform Enforcement of Judgments Act. Oklahoma's version follows the 1964 rendition and neither the Oklahoma version nor the 1964 rendition includes the language of Section 14 from the 1948 version.


source: Caselaw Access Project

author: ADAMS, J.

license: Public Domain

text:
    2002 OK CIV APP 62
    In the Matter of A.C., J.C., J.C., W.W., and W.R., alleged deprived children. Wesley and Linda Cox, parents, Appellants, v. State of Oklahoma, Appellee.
    No. 95,272.
    Court of Civil Appeals of Oklahoma, Division No. 8.
    April 19, 2002.

      Z. Joseph Young, Chickasha, Oklahoma, for appellant.
    ~ Robert W. Beal, Assistant District Attorney, Jason @lidewell (Intern), Chickasha, Oklahoma, for appellee.
   OPINION

ADAMS, J.

T1 This is an appeal from a trial court order finding the children who are the subjects of this action to be deprived. For reversal, the appellants (Parents) argue that the State produced insufficient evidence to establish that fact. After reviewing the evidence, we agree and reverse the trial court order. ~* ~

[2 For purposes of the appeal at least, we assume the State's burden of proof in deprived adjudication proceedings to be "by a preponderance of the evidence." See Matter of A.D.W., 2000 OK CIV APP 110, 12 P.3d 972. Our task on appellate review is to determine whether the record contains any competent evidence reasonably tending to support the trial court's decision, ie, that the State met its burden of proof. See Matter of J.M., 1993 OK CIV APP 121, 858 P.2d 118.

T3 The State based its claim that the children were deprived on two allegations of fact, both of which the trial court found in its order had been established as true. First, the State claimed Parents had not properly cared for the children because they left them "overnight in inadequate housing with inadequate food and provisions thereby endangering the children." In its appellate brief, the State refers to these actions as "abandonment," although it did not use that word in its allegations in the trial court and makes no effort to demonstrate that Parents' alleged acts meet any definition of that term under Oklahoma law. However, for want of a more precise term, we will use that characterization for purposes of discussing the evidence. Second, they claimed the children were deprived because one of the children, a nine year-old boy, "engaged in inappropriate sexual acts with his other siblings" and that "the mother knew of these acts and failed to protect." We must examine the evidence offered to support each of these allegations. We review that evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences from the evidence. '

ABANDONMENT

14 According to the testimony in this record, Parents took the children, then four to nine years of age, to an unoccupied house on a one and one-half mile dead-end road in rural Grady county near Bradley, Oklahoma, in the late morning or early afternoon of a day in late May. They left the children there with an adult daughter, Mary, because the children did not want to travel with them to Henryetta, where the family previously lived and Parents intended to see an attorney. The children expressed a preference to stay in this rural setting and play. The record contains unrefuted testimony that Parents planned to return from Henryetta that evening.

15 Parents' pastor and landlord, Mr. Ayres, owned the house and was renovating it, with some assistance from Parents, so that Parents could move the family into the house from a smaller house Mr. Ayres owned in nearby Alex, Oklahoma. The house lacked running water, telephone service and electricity. The children had been to the house previously with Parents when they were assisting in renovation work. The record contains no evidence that the house. was not structurally sound, but there is evidence that the surrounding area contained piles of debris, some of which may have posed a danger to the children if they were allowed to play in it.

T6 When they departed, Parents left an ice chest with food and beverages for Mary and the children. According to the testimony, there was sufficient food and beverage for lunch, supper and a little more. Mr. Ayres came to the house, along with his wife, daughter and son-in-law, in the early afternoon to work on it. He saw the children playing, eating, and drinking sodas, and he left after installing some electrical boxes.

7 Parents' car broke down on the way to Henryetta, and when night came, Mary put the children to bed on a sleeper sofa in the house, using blankets and pillows they had with them. When Mary and the children awoke in the early morning and the parents had not yet returned, they set out for the nearest neighbor's house, as they had been instructed by Parents if they needed any assistance. On their way there, they were seen by 'another neighbor, Mr. Anderson. He took the children to his home. He woke his wife, and Mary made telephone calls, trying to contact the sheriff and others, apparently concerned that Parents may have had an accident. Mary wrote a note to Parents to tell them where she and children were and asked Mr. Anderson to post the note on the gate back at the house on his way to work. He did so. -

18 When the Andersons' children arose, Mrs. Anderson fed them, Mary, and the children breakfast. Mrs. Anderson offered baths and clean clothes to the children, who were dirty from playing outside the prior day. They bathed, changed into clean clothes, and went outside to play with the Anderson children. Mary made more telephone calls, and Mrs. Anderson then drove them back to the house. While they were there, Mr. Ayres, in response to a telephone call from Parents that morning, came to the house at about 10 a.m. and took the children and Mary to their home in Alex. While on the way to Alex, they saw an uncle and their grandmother pass by on their way to the house to pick up Mary and the children. Later that same day, DHS took the children into custody.

T9 Parents do not deny that the children stayed overnight at the house near Bradley, but argue that the children were not thereby endangered or left with inadequate food and shelter. The State argues that the potential for danger was sufficient, in and of itself, to support the deprived adjudication on this ground. At least under the cireumstances presented in this record, we disagree.

«110 Parents must make reasonable efforts, but are not bound to absolutely foresee every emergency or protect their children from every calamity, see, eg. Matter of Christopher H., 1978 OK 50, 577 P.2d 1292. Here, because of an emergency which delayed the return of Parents, the children stayed overnight for a single night at a house with which they were familiar that was undergoing repairs, they had food and beverages, they were supervised by an adult, and, prior to any intervention by DHS, they were returned unharmed to their usual residence. As reflected by this record, these events, standing alone, do not present cireumstances serious enough to warrant interference in an intact nuclear family. The record contains no competent evidence to support the trial court conclusion that the State had sustained its burden of proving that the children were left without adequate food and shelter, and that conclusion is reversed.

FAILURE TO PROTECT FROM INAPPROPRIATE SEXUAL CONDUCT

111 According to the State, the children's mother knew that W.W., a son who was nine years old at the time the children were removed from the home, had engaged in inappropriate sexual conduct with, A.C., a daughter who was six years old at the time the children were removed from the home, and perhaps the other children. The exact nature of this sexual conduct was never clearly defined. State argues that the mother's failure to protect A.C. and the other children from that conduct after she knew about it supports the finding that the children were deprived. However, the State directs us to no evidence in the record tending to prove either Mother's knowledge of this conduct or her failure to take appropriate steps after she learned about it. Our review of the record has yielded no such evidence.

[ 12 The closest the State came to proving these two essential elements is testimony from A.C. in which she testified that she told her mother about one incident, despite having earlier testified that she did not tell her mother about this conduct. When she was asked what her mother did in response, she testified that W.W. "got in trouble."

[13 The record contains no evidence indicating that the mother did nothing, as suggested by the State. Moreover, there is no evidence that the conduct occurred again after W.W. "got in trouble," except for the incident that occurred at the foster home when the children were no longer in the care of their parents. In short, this record contains no competent evidence from which a finder of fact might reasonably conclude that the mother both knew or should have known about W.W.'s alleged conduct and failed to take reasonable steps to prevent that conduct in the future. We must therefore reverse the trial court's conclusion that the State had sustained its burden of showing the children were deprived because Parents had failed to protect the children from inappropriate sexual conduct by W.W.

CONCLUSION

{14 This record contains no competent evidence reasonably supporting the conclusion that the State sustained its burden of proving these children deprived. Accordingly, the trial court's order finding the children to be deprived is reversed.

REVERSED.

HANSEN, P.J., and MITCHELL, J., concur. ' |

      . Whether this is the correct standard or whether what we perceive to be a more rigorous burden of proof, "by clear weight of the evidence," applies is in some question. Matter of A.D.W. contains an excellent discussion of the confusion on this issue which it says was caused primarily by a footnote in Matter of C.G., 1981 OK 131, 637 P.2d 66, which 'appears to have Juxtaposed the burden of proof and the standard of review in such actions. To further confuse the issue, this writer also authored Matter of LC. and P. C., 1998 OK CIV APP 96, 962 P.2d 29, incorrectly relying upon Matter of J.M., 1993 OK CIV APP 121, 858 P.2d 118, (a termination case) for the conclusion that the "clear and convincing" burden of proof applied in deprived adjudications. Fortunately, that misstatement of the law had no impact on the ultimate result reached because the Court determined the evidence in the record on the deprived adjudlcatlon was sufficient even under that burden

      . We note that the State did not allege or argue at trial that Mary was an inappropriate caregiver and produced no evidence to suggest that the decision to leave the children with Mary, in and of itself, was inappropriate.

      . The only incident about which there is any unambiguous evidence concerning what o¢-curred happened after the children had been removed from the home and were in their foster parents' care.

      . Nothing we say here should be interpreted as suggesting that Parents' handling of this behav-for, now that it has come to light and reoccurred in foster care, should not be monitored by appropriate agencies.


author: LARRY JOPLIN, Vice-Chief Judge. JONES, J.,

text:
    2002 OK CIV APP 64
    Lissa J. NERO, Plaintiff/ Appellee, v. Scotty H. NERO, Defendant/Appellant.
    No. 95,465.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    April 26, 2002.

      Larry E. Goins, Oklahoma City, OK, for Appellant.
    Jerry Kite, Oklahoma City, OK, for Appel-lee.
   LARRY JOPLIN, Vice-Chief Judge.

T1 Defendant/Appellant Scotty H. Nero (Husband) seeks review of the trial court's orders denying reconsideration of his motion to modify, by which he sought an adjustment to his child support obligation and specific visitation, and granting attorney's fees to Plaintif{/Appellee Lissa J. Nero (Wife). In this proceeding, Husband challenges the trial court's orders as affected by errors of both fact and law. Having reviewed the record, however, we find no errors as alleged and hold the order of the trial court should be affirmed.

12 From the record before us, it appears that Husband and Wife separated sometime in 1991 or 1992, and Wife, an Australian national accompanied by the parties' four children, moved to Australia. In 1996, Wife commenced the instant action for divorce in Oklahoma. In 1997, recognizing Australia as the proper jurisdiction to determine the issues of custody and visitation, the trial court-with agreement of the parties-dismissed those parts of Mother's petition.

13 In June 1998, the trial court entered a decree of divorce, setting Husband's child support obligation. Husband filed a motion for new trial, challenging the trial court's imputation of (minimum wage) income to Wife in setting child support. After a hearing in early March 1999, the trial court vacated that part of the decree of divorcee setting child support, and directed preparation of a journal entry of judgment.

[ 4 Within ten days, however, Wife filed a "Motion to Reconsider Child Support Order," asserting a miscalculation of Husband's gross income (i.e., without consideration of his social security disability and veterans' benefits) on his motion for new trial, and consequent entitlement to additional child support from Husband pursuant to the statutory child support guidelines. See, Nazworth v. Nazworth, 1996 OK CIV APP 134, 931 P.2d 86. Husband filed a motion to settle journal entry. After a hearing on the motion to settle in September 1999, the trial court recalculated Husband's child support obligation, and the journal entry of judgment was filed in January 2000.

T5 In April 2000, Husband filed a motion to modify his child support obligation and to establish visitation. In May 2000, Wife filed her response, seeking denial of Husband's requested relief and an award of attorney's fees. In June 2000, Husband filed his "Affidavit Requesting Relief in Equity and Good Conscience," setting forth legal and equitable grounds for modification of his child support obligation, including a material change in the parties' respective incomes, his declining health, a change in the currency exchange rate, and the imposition of an additional child support obligation on him for an after-born child.

T 6 The various matters came on for hearing on August 9, 2000. The trial court denied Husband's motions to vacate or modify, and granted Wife judgment for Husband's unpaid child support arrearage. The trial court further ordered the parties to negotiate an agreement for Husband's payment of the adjudicated arrearage.

17 The parties could not agree, and on August 16, 2000, Wife filed her motion to determine payments on the arrearage, to settle the journal entry, and to assess attorney's fees against Husband. On August 23, 2000, Husband responded, stating his agreement to honor the trial court's ruling regarding computation of child support and ar-rearage; offering to pay $75.00 per month towards the judgment for arrearage; asserting that all issues had been previously determined; and seeking denial of Wife's prayer for attorney fees.

18 On September 5, 2000, Husband filed a "supplemental" response to Mother's August 2000 motion, again agreeing to abide by the trial court's previous orders setting his child support and determining the arrearage, and restating his offer to pay $75.00 per month towards the arrearage. On that date, Husband also made a $20.00 deposit of court reporter's fees.

T9 On September 14, 2000, after an unreported hearing, the trial court entered the order which is the subject of this appeal. By that order, the trial court (1) found the matters raised by Husband had been heard on the merits August 9, 2000, (2) "denied in toto" Husband's "motion to modify divorcee decree, vacate order of September 2, 1999, modify child support and to establish visitation," and (8) specifically left the September 2, 1999 child support order in full force and effect. The trial court further ordered Husband to pay $100.00 per month on the judgment for arrearage, and awarded Mother attorney's fees of $1,000.00, payable at $100.00 per month.

110 In his first proposition, Husband complains the trial court erred in refusing his request for a court reporter to record the September 14, 2000 hearing. In this respect, however, the record contains no specific request or demand for a court reporter at the September 14 hearing, nor an objection to further proceedings on September 14 absent a court reporter. See, 20 O.S. 106.4 (a) ("A trial or proceedings may proceed without the necessity of a court reporter being present, unless there is objection by a party or counsel"); Weeks v. Wedgewood Village, Inc., 1976 OK 72, ¶10, 554 P.2d 780, 784 ("Appellant may not ... fail to request that the proceedings be transcribed and then allege denial of due process.")

111 Moreover, although the trial court's docket sheet indeed reflects Husband's payment of a $20.00 deposit toward "court reporter fees" on September 5, 2000, we find no indication in the record which of the various proceedings-either had or to be had-Husband wanted a court reporter to tran-seribe, ie., whether of the hearing in March 1999 on Husband's motion for new trial, the hearing in September 1999 on the motion to settle, the August 2000 hearing on Husband's motion to modify and Wife's motion to reduce arrearage to judgment, or the September 2000 hearing on Wife's motions to set Husband's payments on the adjudicated arrear-age and to assess attorney's fees. In this respect, the record on appeal includes a tran-seript of the August 2000 proceeding, designated for inclusion by Husband, supporting at least an inference that it was indeed the August 2000 hearing Husband wanted tran-seribed for use at the September 14 hearing and on appeal. Under these cireumstances, we find no error by the trial court as alleged in this proposition of error.

112 In his second proposition, Husband complains the trial court impermissibly, and without explanation, deviated from the statutory guidelines in setting his child support obligation, ie., calculated "per child, per

month," rather than according to the statutory table for "four children." 48 O.S. 118 (B) ; 483 0.8. 119 (A) (table). In his fourth proposition, Husband asserts the trial court erred in calculating his child support obligation by including in his gross income his veterans and social security disability benefits, Nazworth notwithstanding.

113 Nazworth teaches: (1) a child support obligor's social security benefits payable directly to the obligor's children should be included in the obligor's gross income when calculating child support; (2) "[ble-cause each child separately receives a social security benefit, the support obligation should be computed separately for each child," rather than pursuant to the multi-child amounts dictated by the statutory child support table, 48 O.S. 119 (A); but (8) the amount of obligor's calculated child support is reduced by the social security benefits received by each child. 1996 OK CIV APP 134, 119-12, 981 P.2d at 89. See also, Wilson v. Stenwall, 1992 OK CIV APP 34, 868 P.2d 1317. Further, veterans' disability compensation for service-ineurred injuries is properly included in gross income when computing child support. Dye v. White, 1999 OK CIV APP 20, 17, 976 P.2d 1086, 1087-1088.

{14 In the present case, the trial court calculated Husband's child support obligation in accord with the teachings of Nazworth and Dye, and Husband presents us with no good reason to depart from those authorities. We consequently reject these propositions of error.

% 15 In his third proposition, Husband complains the trial court erred in setting his child support obligation without adjustment to his gross income for payments he had been ordered to make as support for a fifth child, born to another woman during his marriage to Wife. 48 O.S. 118 (BE)(5). In this respect, the trial court reasoned that any reduction of Husband's child support obligation in the present case on account of his child support obligation for his fifth, later-born child was absolutely proscribed by 48 O.S. 118 (E)(20)

16 On our review of the record, we find no evidence of other child support "actually paid" as required by § 118(B)(5). Further, under the facts and ciremmstances of the present case, any adjustment to Husband's gross income for child support to his fifth, later-born child results in a reduction of Husband's child support obligation to his four, prior children, and arguably violates the spirit, if not the letter, of § 118(E)(@0). We therefore reject this proposition.

117 In his fifth proposition, Husband challenges as inequitable the trial court's calculation of child support in U.S. dollars rather than Australian dollars. Here, Husband argues the (depressed) exchange rate for Australian dollars resulted in artificially depressed income imputed to Wife, and artificially increased his proportionate share of child support calculated in U.S. dollars.

1 18 The statutory child support guidelines do not address this issue. Father concedes the matter is addressed to the trial court's discretion. The record reflects the trial court in its original decree utilized an exchange rate to which the parties agreed. Given the trial court's calculation of child support uniformly based on U.S. dollars, we find no error as alleged.

119 Finally, Husband challenges the trial court's award of attorney's fees to Wife absent an evidentiary hearing or verified affidavit of opposing counsel setting forth the basis for an award. See, 12 O.S. Supp.1997 § 696.4 (B). In this respect, Oklahoma law specifically permits an award of attorney's fees in postjudgment modification proceedings, as the trial court, in the exercise of its discretion and the "judicial balancing of the equities," deems proper. 43 O.S. Supp.1997-110 (D); Abbott v. Abbott, 2001 OK 31, 11, 25 P.3d 291, 294. Further, by his response to Wife's application in the present case, Husband objected to an award of fees to Wife only as inequitable. The trial court had before it extensive evidence concerning the parties' respective means, and absent a timely objection to the claimed rate of compensation, or amount of the claimed attorney's fees, we cannot say the trial court abused its discretion in awarding Wife attorney's fees based on the unverified statement of her counsel.

20 The order of the trial court is therefore AFFIRMED. Wife's prayer for an award of appellate attorney's fees. is GRANTED, and the cause REMANDED for a determination thereof.

[21 BUETTNER, J., concurs.

122 JONES, J., dissents.

JONES, J.,

dissents:

{1 In my humble opinion, veteran's disability compensation camnot be considered income for purposes of calculating child support. Although Dye v. White, 1999 OK CIV APP 20, 976 P.2d 1086 flatly states such compensation is properly included in gross income when calculating child support, that opinion is the solitary pronouncement on the subject in Oklahoma jurisprudence. My brethren in the third division are in error in my opinion, and until instructed to do so by the court of last resort in Oklahoma jurisprudence, I will recede from that pronouncement.

T2 Military disability payments are designated to compensate a former serviceman or woman for permanent injuries inflicted while the officer or enlisted person is serving his country. It is compensation for presumably permanent partial or total loss of bodily funetion received in the armed services. In no way is it income in the ordinary sense. It is not enough that a totally disabled veteran share his social security income with his children? The jurisprudence of this state need not leave veterans so destitute. They deserve better.

      . The record suggests Wife also cited Husband for contempt for nonpayment of child support.

      . The trial court also denied Wife's application for contempt citation.

      . Particularly, Husband averred:
      [Husband] has sought and received equity. He will do what is equitable and just. Hence, there is no reason for this court to reconsider its recent ruling. . .. Res Judicata is applicable. There exists no issue in dispute. Parties agree to abide by this Court's recent ruling. Parties need only sign the journal entry prior to [the scheduled hearing date.]

      . Husband also attached approximately 20 pages of exhibits, including one or more narrative statements challenging the computation of his child support obligation, miscalculation of the parties' respective incomes, and the rate of exchange between Australian and the United States dollars; Husband also again raised the issues of Wife's alleged culpability/fault in moving to Australia with the children, his failing health, and specific visitation.

      . In support of this proposition, Husband attaches to his Reply Brief a copy of, his verified complaint to the Council of Judicial Complaints, attesting to his objection to further proceedings - on September 14 absent a court reporter, and to the trial court's proceedings on the merits over his objection, in alleged violation of the Code of Judicial Conduct. However, inasmuch as that exhibit appears nowhere in the appellate record, we may not consider it here. See, Rule 1.11), Rules of the Supreme Court, 12 O.S., Ch. 15, App.; Chamberlin v. Chamberlin, 1986 OK 30, 7, 720 P.2d 721, 723-724; Eckel v. Adair, 1984 OK 86, 17, 698 P.2d 921, 925.

      . - ''The district or administrative court may deviate from the amount of child support indicated by the child support guidelines if the amount of support so indicated is unjust, inequitable, unreasonable, or inappropriate under the circumstances, or not in the best interests of any child ' involved. If the district or administrative court deviates from the amount of child support indicated by the child support guidelines, the court shall make specific findings of fact supporting such action."

      . ''The amount of any preexisting district or administrative court order for current child support for children not before the court or for support alimony arising in a prior case shall be deducted from gross income to the extent payment is actually made under the order[.]"

      . "Child support orders issued for prior-born children of the payor may not be modified for the purpose of providing support for later-born children[.]"

      . The record contains evidence of the April and May 1999 exchange rates of between $1.55-1.57(Australian) to $1.00(US).

      . "If attorney's fees, costs or interest have not been included in the judgment, decree or appeal-able order, a party seeking any of these items must file an application with the court clerk along with the proof of service of the application on all affected parties ..., The application must set forth the amount requested and include information which supports that amount.. ..."

      . "The court may in its discretion make additional orders relative to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or théir attorneys, for the enforcement or modification of any interlocutory or final orders in the divorce action made for the benefit of either party or their respective attorneys."


author: KEITH RAPP, Judge.

text:
    2002 OK CIV APP 65
    In the Matter of K.G., a Deprived Child under age 18, Theodore and Veda G., Plaintiffs/Appellants, v. DEPARTMENT OF HUMAN SERVICES, Defendant/Appellee.
    No. 96,682.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Decided May 7, 2002.

      J. Townley Price, Tulsa, OK, for Plaintiffs/Appellants.
    Catherine O'Leary, Tulsa, OK, for Defendant/Appellee.
   KEITH RAPP, Judge.

1 1 K.G.'s foster parents, Theodore Gougol-is and Veda Gougolis (Foster Parents), appeal the trial court's denial of their objection to the removal of K.G. from their home by the Oklahoma Department of Human Services (DHS).

BACKGROUND

2 Foster Parents' appeal raises two questions: (1) Whether the trial court erred in its ruling regarding the standard of proof placed upon DHS; and (2) Whether the trial court erred in admitting hearsay evidence and, if so, whether the evidence supports the trial court's ultimate ruling. Thus, a brief review of the facts will suffice.

T3 Veda Gougolis is K.G.'s natural grandmother and Theodore Gougolis is K.G.'s step-grandfather. K.G.'s mother is deceased and K.G.'s father's parental rights had been terminated. K.G. and an older brother were placed in foster care in the Gougolis' home, but only after a hearing when DHS had refused to place K.G. there.

T 4 DHS involvement began in Tulsa County and then the matter was transferred to Rogers County, the Foster Parents' residence. The Foster Parents and DHS entered into a foster care contract. - Among the terms of foster care is the prohibition of corporal punishment in any form. -

T5 K.G.'s older brother is under the care of a physician for treatment for Reactive Attachment Disorder (RAD). In April 2001, he appeared in school showing signs of having been struck on the face and head. He reported to his teacher that "poppy" (his name for Theodore Gougolis) had hit him. Subsequent investigation indicated that he had also been made to stand 'on one foot for extended periods of time and had received other disciplines deemed inappropriate by DHS witnesses for a young boy with RAD. Other testimony disclosed that Veda Gougolis had been loudly abusive to K.G. during visits to the physician and to children's specialists. Theodore Gougolis specifically denied striking the brother, and minimized the discipline imposed upon him.

T6 On about April 24, 2001, the brother was removed from the home. On May 11, 2001, a formal report issued finding abuse "confirmed." A series of meetings involving DHS staff and the brother's treating physician took place in April and May of 2001, concerning K.G. DHS personnel experienced internal communication problems because of the transfer of the case from Tulsa County to Rogers County. However, the decision was made to remove K.G. from the home on an emergency basis and K.G. was removed on May 18, 2001.

T7 DHS stated the reasons for removal in the "Notice Of Child's Removal From Out Of Home Placement." That Notice stated that the reasons were "recent confirmation of child abuse (physical); age of child; background information." |

T8 Foster Parents filed an objection to the removal. The Foster Parents based their objection to the removal on the grounds that removal was not in the best interest of K. G and that DHS acted arbitrarily and capri-clously when it removed K.G. from their home. Their objection noted that Foster Parents were also K.G.'s grandparents and that she had lived with them since the time she was an infant. They further stated that removal would be inconsistent with K.G.'s treatment and service plan.

T9 The trial court set the objection to removal for hearing. At the hearing, the trial court ruled that the removal was based upon an emergency. The court further ruled that the "standard it would impose for purposes of an emergency removal would be the same. as that applied -in 10 O.S. Supp.2000, 7003-2.1 (A), ie., the Department would need to present enough evidence to establish. to the Court a reasonable suspicion to believe that the child was in need of protection due to abandonment, abuse, neglect or was in surroundings such as to endanger the welfare of the child." Foster Parents challenge this latter ruling here.

T 10 The trial court denied Foster Parents' objection to K.G.'s removal from their foster care. Foster Parents appeal.

STANDARD OF REVIEW

T11 This appeal presents questions concerning legal rulings made by the trial court during the course of the hearing. The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1. This Court's standard of review is de novo and gives no deference to the legal rulings of the trial court. State, ex rel. Dept. of Human Services, ex rel. Jones v. Baggett, 1999 OK 68, 990 P.2d 235. Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 118 L.Ed.2d 190 (1991); Keizor v. Sand Springs Ry. Co., 1998 OK CIV APP 98, 15, 861 P.2d 326, 828.

_ ANALYSIS AND REVIEW

Evidentiary Rulings

112 Review of the trial transcript indicates a number of instances where witnesses testified to utterances by third parties. However, Foster Parents here point to a single instance involving the first witness presented by DHS. This witness testified to an event reported by the treating physician involving alleged abusive conduct by Veda Gougolis toward K.G. at the physician's office. The argument is that this event and the conduct of Veda Gougolis then provide the only basis for removal of K.G. Since, according to the argument, the fact of the event and its cireumstances were derived from the hearsay testimony of the DHS worker, the evidence does not support the trial court's decision to uphold DHS' removal of K.G. from Foster Parents' care.

113 The argument fails. Error may not be predicated upon an evidentiary ruling unless a substantial right of the party has been affected. 12 0.8.2001, 2104 (A).

[ 14 First, the trial court limited the purpose of the DHS worker's testimony and did not admit the testimony to prove the truth of the occurrence of the event at the physician's office. Second, the physician testified in person about the event. Moreover, a case worker also testified to- a similar event on a separate occasion. Last, the basis for removal clearly was broader than the ground set out by Veda Gougolis' conduct toward K.G. at the physician's office. Thus, the testimony was not hearsay under the ruling and no substantial right was affected by its admission for a limited purpose.

The Standard of Proof

1 15 The trial court's determination to use the same standard of proof as used for purposes of an emergency removal under 10 0.8. Supp.2000, 7008-2.1 (A)(2) is the issue. In deciding this issue, this Court views the matter of "removal" as one involving two distinct sets of cireumstances under the Oklahoma Foster Care and Out-of-Home Placement Act when an emergency is alleged to be involved. First, there is the act of physical removal of the child from the foster home location. Second, there is the act of "removal" by the placement of the child into a new foster home environment.

116 This Court holds that when the trial court is faced with an inquiry into whether an emergency exists to justify physical removal of the child from an existing foster home, the reasonable suspicion standard applies. An "emergency situation" is defined in the statute as:

a. an emergency situation. As used in this subparagraph, "emergency situation" means a removal that is
(1) for emergency medical or mental health trestment;
(2) due to substantial noncompliance by the foster parent with applicable contract requirements and agreements such that the health, safety or welfare of the child is endangered, or
(3) due to a pending investigation of allegations of abuse or neglect of a child by a foster parent or other person residing in the foster family home.

10 0.8.. Supp.2000, 7208 (D)(8)(a).

117 The "emergency situation" defined in the foster care part of Title 10 is comparable to the emergency situation contemplated in the pre-petition part of the Code. Thus, concepts of abuse, neglect, endangerment, and the like, serve as grounds to remove a child from a place where such things may be occurring. The protection of the child justifies a lesser standard upon which to base governmental decision to remove the child pending a prompt hearing.

{18 The Foster Parents challenged DHS conclusion that an emergency situation existed. This challenge was based largely upon the fact that DHS did not remove K.G. in April of 2001, when the cireumstances of physical abuse of her brother surfaced and he was removed from Foster Parents' home, but waited almost a month, until May 18, 2001, before K.G. was removed. This Court finds from a review of the evidence that the trial court had ample grounds to find that an emergency situation existed in May 2001, which justified DHS' decision to remove K.G. The delay from April to May was partly due to the internal lack of communication within DHS and partly due to ongoing investigations. In fact, it is possible to fault DHS for not acting sooner, or at the same time K.G.'s brother was removed.

{ 19 Here, the trial court utilized the "reasonable suspicion" standard to judge whether DHS was correct in its decision to remove KG. due to an emergency situation. The trial court did not use that standard for the purpose of reviewing any decision by DHS to "remove" K.G. by placing her in another foster home. Clearly, in the latter case, DHS would have to show that its decision to remove K.G. was neither arbitrary nor inconsistent with the child's treatment and service plan. 10 0.S. Supp.2000, 7208 (D)(4).

T20 Moreover, the issue of the nature of proof to uphold a decision by DHS to place a child in a new foster home was not presented below and is not an issue before this Court. The entire trial court hearing was devoted to evidence concerning the decision to physicalty remove K.G. due to an emergency situation. No evidence was adduced regarding K.G.'s current placement or any decision to place K.G. in a new foster, home.

{21 Therefore, this Court holds that the trial court did apply the correct standard of proof to the issue before it. Clearly, Section 7208 contemplates removal under emergency situations. This is evidenced by the provision in the statute dispensing with the advance notice requirements when the child has been in the foster home for three or more months. Moreover, objections by foster parents do not postpone the physical removal of the child in an emergency situation. 10 O.S. Supp.2000, 7208 (D)(8).

1 22 When a child has resided with foster parents for more than six months, as is the case here, the foster parents may file objections to the removal. 10 O.S. Supp.2000, 7208 (D)(1)(b). The statute does not make any distinction between objections to physical removals in emergency situations and objections to removals constituting placement in a new foster home.

{23 Here, review of Foster Parents' written objections discloses that they did not specifically make any objections based upon the emergency situation decision. Nevertheless, the conduct of the trial was devoted to the emergency situation aspects of the case.

1 24 Section 7208(D)(4) directs the court to hold a hearing on the objections made by Foster Parents. However, the Legislature has not specified a standard by which to adjudicate objections to removals based upon an emergency situation. In other instances involving children the Legislature has provided standards, such as, for example, 10 0.8. Supp.2000, 7 008-1.1 (A)(1), reasonable grounds to believe a child to be deprived; 10 O.S. Supp.2000, 7008-2.1 (A)(2), reasonable suspicion to believe that a child is in need of protection to justify taking child into protective custody; and, 10 0.8. Supp.2000, 70083-2.2, child is in need of emergency medical care. In all matters involving children the ubiquitous criteria of "best interest" and "health, safety, and welfare" may be found throughout the statutes.

11 25 The statute does provide that the trial court has the option to uphold the removal or to return the child to the foster home if the court finds the "decision to remove the child was arbitrary or was inconsistent with the child's treatment and service plan." 10 0.8. Supp.2000, 7208 (D)(4). If the court upholds the removal decision, then the court is required to state, in the record, the "reasons why the removal of a foster child from the foster home is in the best interests of the foster child." 10 0.8. Supp.2000, 7208 (F).

126 Neither Subsection 7208(E) nor Subsection 7208(F) of the statute deal with the standard of proof. However, in this Court's opinion, those provisions pertain to the decision to place the child in a new foster home rather than the decision to act in an emer-geney situation.

$27 This interpretation is consistent with the overall tenor of the Oklahoma Foster Care and Out-of-Home Placement Act and the express intent of the Legislature to limit movement of a child from one foster home to another. The decision to move a child is not the same as a decision to remove a child in an emergency situation as was the case here. The former decision involves the child's stability, the child's attachments, and other factors. The function of a foster home environment is to assure stability and to provide for a family setting for the child. 10 0.8. Supp.2000, 7202. Thus, the review of a decision to move a child is reviewed on the basis that it cannot be arbitrary nor may it be inconsistent with the treatment and service plan for the child.

[91 128 In summary, the trial court correctly required DHS to demonstrate a reasonable suspicion that an emergency situation existed so as to justify removal of K.G. The trial court's decision to uphold the DHS is not contrary to the evidence in support of the conclusion that a reasonable suspicion existed.

129 AFFIRMED.

1 80 COLBERT, P.J., and GOODMAN, J., concur.

      . K.G. has also been identified in the record as KD.

      . District Court File at page 66.

      . The treatment and service plan are not part of the appellate record.

      . Journal Entry of Judgment, 13, record at 58.

      . In the case of In re D.R., 2001 OK CIV APP 21, 20 P.3d 166, the Court upheld the trial court's finding of medical neglect when the parents refused medical treatment based upon their religious beliefs. There, the Court stated that the "state has an interest in protecting the lives of its children, which may override parental decisions which threaten a child's life." In re D.R., 2001 OK. CIV APP 21 at ¶ 20, 20 P.3d at 169.

      . All agree here that the Foster Parents, in their capacity as foster parents, had the right to object to the removal of KG from their home. 10 O.S. Supp.2000, 7208 (D)(1)(b). Moreover, all agree that the Legislature's intent, as expressed in the Oklahoma Foster Care and Out-of-Home Placement Act, is to limit the number of times and reasons to move a child within the foster care system. 10 O.S. Supp.2000, 7202 (D), 7221(A). Thus, subject to the intent of the Legislature to limit removals, DHS may remove a child from a foster home whenever it is in the best interests of the child. 10 O.S. Supp.2000, 7208 (C).

      . DHS did not object that the trial presentation was outside the scope of the written objections. Moreover, a very liberal interpretation of Foster Parents' allegation that the removal was "arbitrary, capricious and not in the best interest of the child" would encompass a challenge to the emergency situation decision.


author: DURHAM, Justice.

text:
    2002 UT 36
    Patty BISHOP, individually and as personal representative of the Estate of Douglas J. Bishop, deceased, Bart J. Bishop, Douglas Wade Bishop, Bradley David Bishop, and Joshua Lee Bishop, Plaintiffs and Appellants, v. GENTEC INC., a Kentucky corporation, and John Does I-V, Defendants, Third, Party Plaintiff, Appellee, and Cross-Appellant. v. Valley Asphalt, Inc., a Utah corporation, Third-Party Defendant and Appellant.
    Nos. 20000467, 20000492.
    Supreme Court of Utah.
    March 29, 2002.
    Rehearing Denied June 12, 2002.

      Allen K. Young, Springville, for plaintiffs Paul M. Belnap, Andrew D. Wright, Darren K: Nelson, Salt Lake City, for GenTec.
    Robert G. Gilchrist, Mark L. McCarty, Brandon B. Hobbs, Lynn S. Davies, Salt Lake City, for Valley Asphalt.
   DURHAM, Justice.

INTRODUCTION -

1 This appeal and cross-appeal challenge the judgment entered in a wrongful death action brought by Patty Bishop individually and as the executor of the decedent Douglas Bishop's estate and Bishop's children. Bishop, an employee of Valley Asphalt, Inc., died as a result of personal injuries sustained while performing repair work on asphalt silo components manufactured by Gen-Tec, Inc., and installed and maintained by Valley Asphalt. Bishop sued GenTee for products liability, and GenTee filed a third-party complaint against Valley Asphalt, seeking indemnification for. GenTec's negligence, strict liability, and products lability based on the language in an invoice signed by Valley Asphalt. With respect to the indemnification, the court granted GenTec's motion for summary judgment. The jury allocated fault to both GenTec and Valley Asphalt. Judgment was then apportioned pursuant to Utah's Liability Reform Act. Bishop moved to amend the jury verdict based on clerical error, but the trial court denied the motion. Valley Asphalt and Bishop appealed, and GenTeec filed a cross-appeal.

BACKGROUND

T2 In late 1994 or early 1995, Valley As-phailt, planning to expand its asphalt storage capacity, contacted GenTee, a manufacturer and assembler of hot asphalt silos.and silo components, to purchase hot asphalt silo components. Valley Asphalt purchased components for an asphalt silo from GenTee on August 7, 1995,, and signed GenTec's standard invoice entitled "Equipment Sales Order and Security Agreement." On the reverse side of the pre-printed invoice were two sections entitled "INDEMNIFICATION" and "INSTALLATION," which purported to place limitations on GenTee's liability. Soon after completion of the purchase, Valley Asphalt received the silo components and constructed the system pursuant to the specifications provided by GenTee. |

T3 On July 12, 1997, while inspecting and attempting to repair one of Valley Asphalt's asphalt silos, Bishop was caught between the doors of the silo when they suddenly closed and was crushed. He died later that day as a result of his injuries. The components that crushed Bishop were those purchased under the August 7, 1995 invoice. Subsequently, Bishop's executor filed this wrongful death action against GenTeec.

T4 GenTee filed a third-party complaint against Valley Asphalt, seeking apportionment of fault and indemnification under the pre-printed terms on the reverse side of the August 7, 1995 invoice. After review of Gen-Tec's and Valley Asphalt's cross-motions for summary judgment on the indemnification question, the trial court found that the two entities were sophisticated business entities, that they negotiated the terms of the invoice at arm's length, and that the language in the invoice evidenced the intent of the parties to reallocate all liability to Valley Asphalt, including claims against GenTee for negligence, strict liability, and products liability.

5 The jury apportioned fault according to a special verdict form, allocating 25 percent of the fault to Bishop, 45 percent to GenTee, and 30 percent to Valley Asphalt. In addition to apportioning fault, the jury determined the amount of general damages to be $750,000 and special damages to be $800,000. Because Valley Asphalt was a party immune from suit pursuant to Utah Code Ann. § 78-27-87(8)(a) (Supp.2001), the trial judge reapportioned Valley Asphalt's 30 percent fault according to Utah's Liability Reform Act ("LRA"), Utah Code Ann. §§ 78-27-87 to - 48 (1999), which resulted in allocating 64.29 percent of the total fault to GenTee and 35.71 percent to Bishop. The trial court then reduced the jury's damages award by the 85.71 percentage of fault. allocated to Bishop. Both GenTee and Valley Asphalt objected to the reapportionment. They claimed that either Valley Asphalt's liability should be combined with Bishop's liability under the common law doctrine of respondeat superior or, if respondeat superior did not apply, that the reapportionment part of the LRA, section 78-27-39(2)(a), is unconstitutional under both the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and the Uniform Operation of Laws Clause of the Utah Constitution, art. I, seetion 24. The trial court overruled GenTee's and Valley Asphalt's constitutional objections. With respect to the respondeat superior argument, the trial court found that the LRA superceded the common law and that "the statute clearly and unambiguously requires that [the] Court must consider the fault of Mr. Bishop and Valley [Asphalt] sep-grately." j

T6 After the trial ended and the jury was exeused, Bishop's counsel talked to at least three of the jurors, including the jury foreman, all of whom subsequently signed affidavits indicating they had made a mistake in their calculation of the jury award. In their affidavits, the jurors testified that they had mistakenly subtracted 25 percent (Bishop's proportion of fault as determined by the jury) from the general and special damages, not realizing that the subtraction for Bishop's fault was the duty of the trial court, not the jury. Relying on these affidavits, Bishop moved to amend the jury verdiet pursuant to Utah R. Civ. P. 59, or 60(a) or 60(b); later, however, in a hearing on the matter, Bishop modified his motion from a request for impeachment or amendment of the verdiet under rule 59 or rule 60 to one solely for a correction of clerical error under rule 60. Bishop conceded that the juror affidavits would not support a rule 59 motion to impeach the jury verdict.

17 Bishop argued, with the support of the juror affidavits, that the jury's allocation error reduced the final general and special damages award announced in the jury ver-diet to a sum that was 25 percent lower than the amount the jury intended to award. Bishop maintained that the jury's intent was further evidenced by the fact that its special damages award was almost exactly 75 percent of the $1,067,000 special damages amount presented by Bishop's expert witness to the jury at trial, The trial court concluded that. Bishop's motion to amend the jury verdict was in reality a motion to impeach the verdict and ruled that the affidavits were not admissible pursuant to Utah R. Civ. P. 59(a)(2). In its order, however, the trial court did not specifically address Blshops rule 60 motion to amend.

STANDARD OF REVIEW

T8 The application of the LRA in apportioning fault is a legal question of statutory construction, which we review for correctness. Field v. Boyer Co., LC., 952 P.2d 1078, 1079 (Utah 1998). A district court's disposition of a summary judgment motion is a question of law that we review for correctness. Schurts v. BMW of North America, Inc., 814 P.2d 1108, 1111-12 (Utah 1991). "We accord a trial court's interpretation of a contract no deference and review it for correctness." - Aquagen Int'l, Inc, v. Calrae Trust, 972 P.2d 411, 418 (Utah 1998). Mixed questions of law and fact are reviewed for abuse of discretion in applying the law to the facts. Woodhaven Apartments v. Washington, 942 P.2d 918, 920 (Utah 1997) (citing State v. Pena, 869 P.2d 982 (Utah 1994).

ANALYSIS

I. LIABILITY REFORM ACT

[5] T9 GenTee and Valley Asphalt argue that the trial court should have combined Bishop's negligence with that of his employer, Valley Asphalt, under the doctrine of respondeat superior. Alternatively, GenTee and Valley Asphalt also argue that if the doctrine of respondeat superior does not apply, the reapportionment provision of the LRA, section 78-27-39(2)(a), is unconstitutional under the Uniform Operation of Laws clause of the Utah Constitution, Utah Const. art. I section 24, and the Equal Protection Clause of the federal constitution, U.S. Const. amend. XIV, section 1. The first question before us therefore concerns the interaction between the LRA and the common law doctrine of respondeat superior. Utah has adopted the common law, except for instances where the common law is contrary to or conflicts with the United States Constitution, the Utah Constitution, a statute, or Utah public policy. See Utah Code Ann,. § 68-38-1 (2001). In determining whether a state statute pre-empts the common law, we have used the federal model for determining whether federal law pre-empts state law. See Gilger v. Hernandes, 2000 UT 28, 111, 997 P.2d 805. The United States Supreme Court has stated,

[i] Sometimes courts, when facing the pre-emption question, find language in the . statute that reveals an explicit [legislative] intent to pre-empt [common] law. [#] More often, explicit pre-emption language does not appear, or does not directly answer the question. In that event, courts must consider whether the ... statute's "structure, and purpose," or nonspecific statutory language, nonetheless reveal a clear, but implicit, pre-emptive intent.
[a] A ... statute, for example, may create a scheme of [statutory] regulation "so pervasive as to make reasonable the inference that [the legislature] left no room for the [common law] to supplement it."
[b] Alternatively, [statutory] law may be in "irreconcilable conflict" with [the common] law. Compliance with both ..., for example, may be a "physical impossibility," or,
{cl the [common] law may "stand as an obstacle to the accomplishment and execution of the full purposes and objectives of [the legislature]."

Id. (citing Barnett Bank of Marion County v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1108, 134 L.Ed.2d 237 (1996) (citations omitted)).

[ 10 The Utah Legislature did not explicitly pre-empt the common law doctrine of re-spondeat superior when it passed the LRA. Therefore, we look to the statute's structure and purpose to determine whether it reflects an implied legislative intent to do so. We conclude that the state statute and the common law principle are in conflict, and that the common law must necessarily give way to the statute. Compliance with both is impossible. Additionally, the "common] law ... 'stand[s] as an obstacle to the accomplishment and execution of the full purposes and objectives of [the legislature]? " Id.

{11 Application of the common law doe-trine of respondeat superior to determine fault allocation in this case would undermine the legislature's objectives in enacting the LRA. Under the plain language of the statute, the only time the principle of respondeat superior could theoretically apply is in the initial apportionment of fault under section 78-27-89(1), in cases where the person seeking recovery is not an employee. As reallocation under the statute occurs only when the plaintiff is an employee of an immune employer, the principle of respondeat superi- or cannot operate to combine the employee's and the employer's fault in the initial allocation pursuant to section 78-27-39(1), or in the reallocation under section 78-27-39(2)(a). If it did, the effects of section 78-27-38(2), permitting recovery for an injured plaintiff from any defendant "whose fault, combined with the fault of persons immune from suit, exceeds the fault of the [plaintiff]," Utah Code Ann. § 78-27-88(2)(2001), would be completely nullified. The combined fault of a defendant and an immune employer would always be greater than that of the plaintiff/employee if the plaintiff/employee's fault were to be attributed to the employer; the combined fault would, by definition, be 100 percent. The LRA must pre-empt the common law; otherwise sections 78-27-88(2) and 73-27-39(2)(a) would be without meaning or function.

{12 More explicitly, we believe that the history of the allocation and reallocation provisions of the LRA reveals a legislative intent to override the operation of respondeat superior in this situation. Recent amendments to the LRA were undertaken by the legislature in specific response to Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877 (Utah 1998). One of the issues addressed in Sullivan was whether a jury could apportion fault to an injured employee's employer where the employer was a party immune from suit. Upon a plain reading of the statute and a review of the legislative history, we determined that the LRA required apportionment both to immune parties and to defendants in order to prevent a "defendant [from being] held liable for damages in excess of its proportion of fault" in violation of the statutory language. Id. at 879. The dissent in Sullivan pointed out that the result would seriously curtail employee recovery, id. at 886 (Stewart, J., dissenting), but the majority felt obliged to follow the statutory language. Id. at 881. The legislature took notice of the case, and, in 1994 after vigorous debate, amended the LRA to provide for reallocation of fault in cases where the fault of all parties immune from suit is less than 40 percent. Section 78-27-38 was amended by adding the language "under Section 78-27-39" to read, "No defendant is liable to any person seeking recovery for an amount in excess of the proportion of fault attributed to that defendant under Section 78-27-39." Utah Code Ann. § 78-27-88(8) (2001). The legislature thus balanced the factors for and against reallocation of fault and found that reallocation between the plaintiff and the defendant was a better policy than forcing the plaintiff to bear the full burden of the immune party's fault. "Thus, in some instances the [revised] statutory scheme itself holds defendants Ha-ble for some percentage of fault initially attributable to a person immune from suit." Field v. Boyer Co., LC., 952 P.2d 1078, 1081-82 (Utah 1998)

113 Valley Asphalt's and GenTec's reliance on respondeat superior is in effect a challenge to the operation of the reapportionment provisions of the LRA, section 78-27-39(2)(a). Their position, if accepted, would recreate the Sullivan dilemma. Through the doctrine of respondeat superior, Valley Asphalt and GenTee seek to reject the legislature's explicit resolution of that dilemma. GenTece's and Valley Asphalt's contention that fault should not be reallocated to a defendant in excess of the liability originally attributed to that defendant is therefore unavailing in light of the legislature's 1994 amendment to the LRA. The trial court correctly determined that the LRA preempted the common law.

114 GenTee and Valley Asphalt also argue that the reallocation provision of the LRA should be declared unconstitutional under the Uniform Operation of Laws provision of the Utah Constitution, art. I, section 24, and federal equal protection jurisprudence. Article I, section 24 of the Utah Constitution provides that "[all laws of a general nature shall have uniform operation." "In serutinizing a legislative measure under article I, § 24, we must determine whether the classification is reasonable, whether the objectives of the legislative action are legitimate, and whether there is a reasonable relationship between the classification and the legislative purposes." Blue Cross & Blue Shield of Utah v. State, 779 P.2d 634, 687 (Utah 1989).

1 15 GenTeée and Valley Asphalt argue that the failure to include an injured employee's fault with that of his or her employer under the common law doctrine of respondeat superior creates an unconstitutional classification. They assert that this classification unduly burdens non-immune defendants because they may become liable for fault in excess of the fault initially attributed to them, at least where the immune partys fault is less than 40 percent.

116 As explained above, the. legislature never intended the fault initially attributed to the injured employee to be combined, pursuant to respondeat superior, with the fault of the employer in the reallocation. The legislature recognized the injustice of a specific classification where an injured employee or a partially at-fault defendant third party would have to bear or share the burden of an immune employers fault. The classification they settled on responds in a rational way to the conflict between protection of the interests of plaintiff-employees and of defendants. The amended statute strives to balance and protect the interests of both. Where the immune employer's fault is greater than 40 percent, the injured plaintiff-employee bears the burden of the employer's fault, but where > the employer's fault is less than 40 percent, the injured plaintiffemployee proportionate ly shares the burden of the employer's fault with non-immune defendants. The 40 percent fault threshold is a reasonable cut-off point; the »statutory scheme legitimately strives to balance and protect both defendants and injured employees. The classification therefore serves a legitimate legislative purpose: to balance economic burdens between an injured employee and a defendant where an immune employer is also at fault.

T17 Likewise, we conclude that the economic classification undertaken by the legislature here easily meets the "rational basis" standard required by the Equal Protection Clause of the federal constitution; the legislature's classification, as discussed above, was entirely reasonable and legitimate. Therefore, neither the Uniform Operation of Laws provision nor the Equal Protection Clause requires us to invalidate the LRA with respect to reallocation; the legislature's policy choice to reallocate the burden of an immune party's fault proportionally in some circumstances between defendants and plaintiffs is constitutional.

II CONTRACT PROVISIONS ->

Valley Asphalt argues that the trial court improperly granted summary judgment with respect to certain indemnification provisions found on the reverse side of the GenTee invoice for the equipment involved in Bishop's accident. We have previously stated that "(on] grounds of public policy, parties to a contract may not generally exempt a seller of a product from strict tort liability for physical harm to a user or consumer unless the exemption term 'is fairly bargained for and is consistent with the policy underlying that [strict tort] Hability' " Interwest Constr. v. Palmer, 923 P.2d 1350, 1356 (Utah 1996) (quoting Restatement (See-ond) of Contracts § 195) (1981)). Comment (c) to the Restatement (Second) of Contracts, section 195, indicates that agreements exempting a seller from strict products liability are unenforceable.

19 In the context of negligence, we have consistently held that an "indemnity agreement which purports to make a party respond for the negligence of another should be strictly construed." Freund v. Utah Power & Light Co., 798 P.2d 362, 370 (1990). In construing such agreements, we have looked at the "objectives of the parties and the surrounding facts and cireumstances" in interpreting the contractual language. Id. "In general, the common law disfavors agreements that indemnify parties against their own negligence because 'one might be careless of another's life and limb, if there is no penalty for carelessness" " Hawkins v. Peart, 2001 UT 94, 114, 37 P.3d 1062 (citing Hyde v. Chevron U.S.A., 697 F.2d 614, 682 (5th Cir.1983)). Parties seeking to exempt themselves from tort liability must " 'clearly and unequivocally' express an intent to limit tort liability" within the contract. See Interwest, 928 P.2d at 1356 (quoting DCR, Inc. v. Peak Alarm Co., 663 P.2d 488, 488 (Utah 1983)). "Without such an expression of intent, 'the presumption is against any such intention, and it is not achieved by inference or implication from general language. ...' " Id. (citation omitted). Furthermore, we will not infer an intention to indemnify against other kinds of liability, including strict liability, where such intention is not clearly expressed.

€20 The two pertinent paragraphs found on the reverse side of the GenTee invoice read as follows:

INDEMNIFICATION

Customer shall indemnify and hold GenTec harmless from all expenses (including attorney's fees), claims, demands, suits, judgments, actions, costs, and liabilities (including without limitation those alleging GenTec's own negligence) which arise from, relate to or are commected with the Customer's negligent possession, use, operation or resale of the equipment and other goods described herein or any manuals, instructions, drawings or specifications related thereto.

(Emphasis added.)

INSTALLATION

Customer shall be solely responsible at its cost for the installation and erection of the equipment and other goods purchased. Although GenTee may in some cases provide a serviceman, data, manuals, instructions, drawings or specifications to aid Customer with installation or start-up.[sic} GenTee assumes no responsibility for proper installation or support of the equipment or other goods when erected and disclaims any express or implied warranties with respect to such installation or support. Whether or not data manuals, instructions, drawings or specifications are provided or a serviceman aids in the installation, Customer shall in-demmify and hold GenTec harmless from all expenses (including attorney's fees), claims, demands, suits, judgments, actions, costs, and abilities (including without limitation those alleging GenTec's own megligence) which may arise from, relate to, or be conmected with damage or personal injury arising out of the installation, erection, start-up, or use of the equipment and other goods purchased (including any manuals, instructions, or drawings related thereto).

(Emphasis added.)

121 The plain reading of the paragraph entitled "INDEMNIFICATION" restricts

Valley Asphalt's agreement to indemnify to those situations where Valley Asphalt itself is negligent. Thus, where Valley Asphalt is not negligent, Valley Asphalt has no duty to indemnify GenTee at all. Furthermore, there is no reference in the indemnification language to products liability. GenTece included a parenthetical clause to indicate that "liabilities" specifically included GenTec's own negligence, but we will not read that reference to include products liability, in view of the principles of strict construction to which we ad-kere in this area.

122 Analysis of the paragraph entitled "INSTALLATION" results in a similar conclusion. In the relevant portion of the "INSTALLATION®" paragraph, GenTec purports to disclaim any Hability for damage or personal injury "arising out of the installation, erection, start-up, or use of the equipment." That language must be read in accordance with the paragraph as a whole, which notes that Valley Asphalt is solely responsible for installation. Thus, whereas the INDEMNTI-FICATION paragraph purports to protect GenTec generally from any liability for negli-genee when injuries "arise from [Valley Asphalt's] negligent possession, use, operation or resale" of equipment, the INSTALLATION paragraph specifically protects Gen-Tec for injuries arising out of "the installation, erection, start-up, or use" thereof. By definition, injuries arising from Valley Asphalt's installation could not be attributed to the condition of the product when sold (products liability), and therefore the INSTALLATION paragraph cannot be read to provide indemnification for products liability. Thus, GenTece is not entitled to indemnification for Bishop's products liability claim.

123 GenTec has also argued on appeal that the plaintiff's cause of action against it was tried to the jury as both a products liability claim and a negligence claim, and that it is therefore entitled to the protections in the INDEMNIFICATION paragraph for negligence. We disaglfree. Bishop's complaint against GenTee contains only one cause of action, for "Products Liability (Strict Liability in Tort)" The complaint alleges a defective and dangerous product, and asserts that the product was defectively designed and manufactured. It also alleges, as part of the defective design theory, that GenTec "so negligently, carelessly and recklessly designed, manufactured, ... sold, ... serviced and failed to warn relative to. said silo system ... so as to directly and legally cause the accident, injuries and damages to plaintiff as described herein, ... as a regult of the unreasonably dangerous defects in the silo system design, the plaintiffs' husband and father, Douglas J. Bishop, was fatally injured."

T24 In several memoranda to the trial court, and now on appeal, GenTee cites the foregoing language as evidencing a theory of recovery for ordinary negligence, which it argues should bring Bishop's claim within the negligence language of the INDEMNIFICATION & INSTALLMENT provisions of the contract. GenTee has misapprehended the applicable principles of products liability law.

$25 Products lability always requires proof of a defective product, which can include "manufacturing flaws, design defects, and inadequate warnings regarding use." Grundberg v. Upjohn Co., 813 P.2d 89, 92 (Utah 1991). Alternative theories are available to prove different categories of defective product, including negligence, strict liability, or implied warranty of merchantability. Seq, eg., Restatement (Third) of Torts: Product Liability § 2 emt. n (1997). Alternative theories entail different evidentiary burdens. For example, proof of a defect under a negligent manufacture theory will necessitate proof that the defective condition of the product was the result of negligence in the manufacturing process, or proof that the manufacturer knew or should have known of the defective condition, whereas these elements are unnecessary under strict liability or breach of warranty theories. Whatever the theory, however, the defendant's liability is for the defective product, and not merely for any underlying negligence. See generally, 63 Am.Jur.2d Products Liability § 8 (1996) ("In a products liability action, a defect in a product may consist of a mistake in manufacturing, improper design, or the inadequacy or absence of warnings regarding the use of the product.") ©

{26 Thus, allegations of negligence contained in a claim for products liability do not transform the claim into one for ordinary negligence. GenTece has overlooked this principle in construing the import of the Special Verdict Form returned by the jury in this case. The Verdict Form asked: "1. When the product, the silo, left the defendant Gen-Tec, was it in a defective condition, making the product unreasonably dangerous to the decedent?" and "3. Was the manufacturer, GenTec, negligent?" Both questions were answered in the affirmative by the jury, and GenTec now argues that the answer to question three demonstrates that this case was "submitted to the jury on negligence theories." We conclude, however, that the reference to negligence in question three could only have been connected to the plaintiff's theory of a product defect based on negligence, as an alternative to its theory of a product defect based on strict liability, which was addressed by question one. At least one state has expressly held that the adoption of strict liability doctrine does not abolish the theory of "product liability negligence" as proof of a product defect, Big Rivers Elec. Corp. v. General Elec. Co., 820 F.Supp. 1123, 1127 (8.D.Ind.1992), and no argument has been made in this case that the theories are mutually exclusive or inconsistent. See also Monsanto Co. v. Reed, 950 S.W.2d 811, 814 (Ky.1997). Therefore, we reject GenTees argument that this claim sounded in negligence and was covered by the invoice's indemnification language.

III. JURY VERDICT

127 Bishop appeals the trial court's denial of his motion to amend the jury verdict pursuant to Utah R. Civ. P. 60. Bishop also appeals the trial court's decision to strike the juror affidavits. GenTee properly argues that we should review a trial court's determination under Utah R. Civ. P. 59 and 60(b) pursuant to an abuse of discretion standard. We do not address rule 59, however, as rule 59 was not argued by Bishop to the trial court.

128 As noted above, Bishop originally filed a motion with the trial court pursuant to Utah R. Civ. P. 60(a) or (b) to amend the jury verdict to correct a clerical error; alternatively, the motion asked the court to amend the jury verdict pursuant to Utah R. Civ. P. 59. In spite of the caption of the motion referring to the alternative theory, Bishop actually argued at the hearing on the motion only for a correction of the jury verdict under rule 60. Further, Bishop's counsel orally conceded at the hearing that. no tenable basis for relief existed under rule 59. "[I]t is the substance, not the labeling, of a motion that is dispositive in determining the character of the motion." Bair v. Axiom Design, LLC., 2001 UT 20, 1 9, 20 P.8d 388. Thus, even though the motion was captioned as either a rule 60 or a rule 59 motion, we conclude that its substance requires us to treat it as a rule 60 motion to correct a clerical error.. ___ __

(29 Basing its ruling on Rosenlof v. Sullivan, 676 P.2d 372 (Utah 1983), which dealt with a rule 59 motion for a new trial, the trial court denied Bishop's motion and struck the juror affidavits pursuant to rule 59. The trial court did not state its grounds for denying Bishop's motion under rule 60, other than explaining that it believed Bishop's motion was substantively a motion to impeach the jury verdict pursuant to' rule 59. We disagree with the trial judge's characterization of the substance of the motion and conclude that Utah R. Civ. P. 60 is determinative, that the affidavits were admissible, and that the jury verdict should be amended to reflect the true intent of the jury.

30 "The correction contemplated by rule 60(a) must be undertaken for the purpose of reflecting the actual intention of ... the parties." Lindsay v. Atkin, 680 P.2d 401, 402 (Utah 1984). "[In this broad approach to correctability under Rule 60(a), it matters little whether an error was made by the court clerk, the jury foreman, counsel, a party, or the judge himself, so long as it is clearly a formal error that should be corrected in the interest of having judgment, order, or other part of the record reflect what was done or intended." Stanger v. Sentinel Sec. Life Ins. Co., 669 P.2d 1201, 1206 (Utah 1983) (quoting Jean F. Rydstrom, Annotation, Construction of Rule 60(a) of Federal Rules of Civil Procedure Authorizing Correction of Clerical Mistakes in Judgements, Orders, or other Parts of Record, and Errors Therein, 13 A.L.R. Fed. 794 (1972)).

131 Prior to the adoption of the Utah Rules of Civil Procedure, we addressed the issue of whether a trial court could correct a jury verdiet to reflect the true intent of the jury. In Moulton v. Staats, 83 Utah 197, 27 P.2d 455 (1988), we allowed the trial court to

correct a jury verdict to reflect the true intent of the jury. In Swniland Corp. v. Radcliffe, 576 P.2d 847 (Utah 1978), Justice Maughan argued that juror affidavits were admissible "to demonstrate what verdict was actually agreed upon." Id. at 850 (Maughan, J., dissenting). Similarly we noted in Brown v. Johnson, 24 Utah 2d 388, 472 P.2d 942 (1970), that "[wJhile jurors may not by affidavit or otherwise impeach their verdict, they may give proof to explain it." Id. at 946 n. 1 More recently, the Tenth Cireuit Court of Appeals has also determined that, under the Federal Rules of Civil Procedure, a jury verdict may be. corrected to reflect the true intent of the jury. See Eastridge Dev. Co. v. Halpert Assocs., Inc., 858 F.2d 772, 788 (10th Cir.1988).

« 32 Bishop is not arguing in this case that the mistake was a judicial error made in rendering the judgment, but rather that the error was clerical and was made by the jury in "recording the judgment as rendered." We agree that accurately recording the intent of the jury in its calculation of the damage award constitutes correction of a clerical error, not a judicial error. "The distinction between judicial error and clerical error ... depends on whether it was made in rendering the judgment or in recording the judgment as rendered." Richards u. Siddo-way, 24 Utah 2d 314, 471 P.2d 148, 145 (1970) (quoting 46 Am.Jur.2d Judgments § 202). Accordingly, the juror affidavits should have been admitted. On remand the jury verdict should be corrected to reflect the true intent of the jury by increasing the general and special damages to $1,000,000 and $1,067,000 respectively, and then deducting Bishop's percentage of fault as required by the LRA.

CONCLUSION

133 We affirm the trial court's holding that the LRA precludes the application of the common law doctrine of respondeat superior; the legislature has pre-empted the common law. We reverse the trial court's determination on summary judgment that Valley Asphalt must indemanify GenTee for all liability. Finally, we reverse the trial court's decision to strike the juror affidavits and instruct the court below to increase the general and special damagés award to $1,000,000 and $1,067,000 respectively, before deducting Bishop's percentage of fault.

1 34 Justice DURRANT, Justice WILKINS, and Judge BENCH concur in Justice DURHAM's opinion.

35 Associate Chief Justice RUSSON concurs in the result.

€ 36 Having disqualified himself, Chief Justice HOWE did not participate herein; Court of Appeals Judge RUSSELL W. BENCH sat.

      . We note that the general application of respon-deat superior requires an employer to be responsible for the actions of an employee where the employee, acting within the scope of her employment, injures a third party. In this case the employee is the injured party, not the party causing injury, and, thus, use of respondeat superior under such circumstances would be problematic in any event. In this case, however, we need not address this problem because we conclude that the doctrine has been pre-empted, as discussed hereafter.

      . We note that another historic common law doctrine abandoned by the LRA, that of joint and several liability, would have made GenTec liable for the entire amount of the damages. GenTec would presumably agree that the result compelled by the LRA is better than the result under this common law principle. The legislature's decision to implement the LRA was premised on fairness. See Floor Debate, Utah Senate, 46th Leg.1986, General Sess., Senate Day 31, Records No. 63 (Feb. 12, 1986). Fairness includes not only fairness to the defendant, but also fairness to the plaintiff. The legislature made a policy judgment after Sullivan that illustrated the dilemma created by the original statute and determined that the best policy was to share the burden of an immune party's liability in certain cases between the plaintiff and the defendants instead of making the plaintiff bear the full burden. We cannot see how spreading this burden proportionally between parties is unconstitutional. Certainly, the result that GenTec and Valley Asphalt advocate would not be fairer.

      . In accord with the Restatement, the Utah Legislature promulgated section 78-15-7 on March 15, 2000, which voids any agreement to exempt a seller of a product from strict products liability on grounds of public policy. Section 78-15-7 is inapplicable to the current case because the accident here occurred before the new section was adopted. The statute nonetheless reflects the legislature's view of public policy on this question.

      . - The court did not decide this issue as it was not properly before the court on appeal.

      . A split of authority currently exists over whether a court can admit evidence, including juror affidavits and testimony, to determine whether the jury verdict reflects the true intent of the jury and to correct the jury verdict. Jurisdictions admitting evidence to correct a jury verdict include: United States v. Stauffer, 922 F.2d 508, 513 (9th Cir.1990) (criminal case); Karl v. Burlington N. RR. Co., 880 F.2d 68, 73 (8th Cir. 1989) {narrowly interpreting .the clerical error exception to apply to an error in transmission of the jury verdict); Fastridge Dev. Co. v. Halpert Assoc., Inc., 853 F.2d 772, 783 (10th Cir.1988); Attridge v. Cencorp Div. of Dover Techs. Int'l, Inc., 836 F.2d 113, 116 (2d Cir. 1987); Umphrey v. Sprinkel, 106 Idaho 700, 682 P.2d 1247, 1254-55 (1983); Latino v. Crane Rental Co., 417 Mass. 426, 630 NE.2d 591, 593 (1994); Moisakis v. Allied Bldg. Prods. Corp., 265 A.D.2d 457, 697 N.Y.S.2d 100, 105-06 (1999) (noting that juror evidence can be used to, correct clerical errors, but not to determine the extent of juror confusion regarding the verdict as rendered); Newport Fisherman's Supply Co. v. Derecktor, 569 A.2d 1051, 1052-53 (R.1.1990); State v. Williquette, 190 Wis.2d 677, 526 N.W.2d 144, 151 (1995) (criminal case, but extended by the Wisconsin Supreme Court to both civil and criminal cases); see also 8 Wigmore, Evidence § 2355 (Chad-bourne rev.1978) (discussing the admissibility of evidence to correct a jury verdict); J.F. Ghent, Annotation, Competency of Juror's Statement or Affidavit to Show That Verdict in Civil Case Was Not Correctly Recorded, 18 ALR.3d 1132 § 3 (1968) (discussing cases that allow clerical error exception).
      Jurisdictions not admitting evidence to correct a jury verdict include: Plummer v. Springfield Term. Ry., 5 F.3d 1, 3 (1st Cir.1993); Cyr v. Michaud, 454 A.2d 1376, 1383-84 (Me.1983); McKinney v. Smith, 63 N.M. 477, 322 P.2d 110, 111 (1958); see also J.F. Ghent, Annotation, Competency of Juror's Statement or Affidavit to Show That Verdict in Civil Case Was Not Correctly Recorded, 18 ALR.3d 1132, §§ 6-7 (1968) (discussing cases that do not allow clerical error exception).