author: BOUDREAU, Justice.

text:
    2002 OK 63
    Lawrence D. and Darlene E. O'NEILL, husband and wife, and American Fidelity Insurance Company, Plaintiffs/Appellees, v. Jeffery Dean LONG, Douglas F. Cole, Willie Cole, Jr., and Kevin Cole, Defendants, State Farm Fire & Casualty Company, Garnishee/Appellant.
    No. 96,002.
    Supreme Court of Oklahoma.
    July 2, 2002.

      Anthony P. Sutton, Tulsa, OK, for appel-lees.
    John A. Glad, Gail W. Harris, Tulsa, OK, for appellant.
   BOUDREAU, Justice.

{1 The trial court decided this garnishment proceeding in favor of the garnishor and against the garnishee, the insurer under a motor vehicle liability policy providing omnibus coverage to any person using the insured vehicle within the seope of consent granted by the named insured. The primary question on appeal is whether Oklahoma's Compulsory Insurance Law requires omnibus coverage even though the permittee exceeds the scope of consent granted by the named insured. We answer that once express or implied permission to use an insured vehicle is granted the omnibus coverage is fixed up to the statutory minimum compulsory insurance limits.

1.

Background

2 Willie Cole, Jr. loaned his 1978 Merceu-ry Marquis to his eighteen-year old nephew, Kevin Cole, so he could look for a job. Willie instructed Kevin, who resided in a household separate from Willie, not to let anyone else drive the car. Notwithstanding Willie's instructions, Kevin let Jeffery Dean Long drive the car to work. While driving Willie's car home from work the next morning, Jeffery collided with an automobile driven by Lawrence D. O'Neill Lawrence and his passenger, wife Darlene E. O'Neill (O'Neills), were seriously injured.

T8 The O'Neills uninsured motorist insurer, American Fidelity Insurance Company, now American Mercury Insurance Company (American Fidelity), paid them $100,000 uninsured motorists benefits. The O'Neills and American Fidelity filed suit against Jeffery Dean Long, Willis Cole, Jr. and Kevin Cole. The O'Neills sought damages for personal injury and property loss and American Fidelity sought reimbursement for the uninsured motorists benefits. At the time of the collision, Willie Cole, Jr.'s vehicle was insured under a policy issued by State Farm & Casualty Company (State Farm) with lHability limits of $25,000/$50,000 for bodily injury and $25,000 for property damage.

14 Initially, State Farm provided defense counsel to Willie Cole, Jr., Kevin Cole and Jeffery Dean Long. Later, defense counsel withdrew as counsel of record claiming that their respective clients failed to cooperate in the defense of the action. The O'Neills and American Fidelity subsequently secured default judgments against Jeffery Dean Long and Kevin Cole. The trial court entered a money judgment in favor of the O'Neills and American Fidelity for damages and prejudgment interest in the sums of $131,079.62 for Darlene O'Neill's personal injury, $62,037.80 for Lawrence O'Neill's personal injury and $11,871.11 for property loss, together with costs and attorney fees.

15 The O'Neills and American Fidelity initiated garnishment proceedings against State Farm to collect their judgment. In answer to the third garnishment, State Farm denied liability or indebtedness to Kevin Cole or Jeffery Dean Long due to the lack of cooperation in defense of the civil action and the non-permissive use of the subject motor vehicle. The trial court allowed the O'Neills and American Fidelity to file their election to take issue with State Farm's answer out of time.

16 The O'Neills and American Fidelity filed three separate motions for summary interlocutory adjudication in the garnishment proceedings. The first motion sought a ruling from the trial court that State Farm owed the statutory minimum compulsory liability insurance coverage to the O'Neills as required by 47 0.8.2001, 7-601.3 The see-ond motion sought a ruling that Kevin Cole was a permissive user and an insured under the motor vehicle liability insurance policy and entitled to coverage up to the policy limits of $25,000/$50,000 for personal injury damages and $25,000 for property damage. The third motion sought a ruling that Kevin Cole was entitled to coverage under the policy because State Farm failed to prove it was prejudiced by Kevin's failure to cooperate in the defense of the underlying tort action. By a separate order, the trial court granted the O'Neills' first and second motions for summary interlocutory adjudication. When the trial court subsequently granted the O'Neilis' third motion for summary interlocutory adjudication, it also entered judgment upon the garnishment in favor of the O'Neills and American Fidelity and against State Farm.

T7 State Farm appealed. The Court of Civil Appeals reversed, finding that Jeffery Dean Long's use of Willie Cole, Jr.'s automobile was unauthorized. Relying upon Pierce v. Oklahoma Property and Casualty Co., 1995 OK 78, 901 P.2d 819, the Court of Civil Appeals concluded that compulsory liability insurance need not cover unauthorized uses of the automobile. However, the Court of Civil Appeals remanded the cause for further proceedings, finding that the evidentiary record did not clearly address certain facts that might make Kevin Cole an insured.

T8 We previously granted the O'Neills and American Fidelity's petition for certiora-ri review. We vacate the opinion of the Court of Civil Appeals. We affirm the trial court's summary adjudication that State Farm owed the statutory minimum compulsory liability insurance coverage to the O'Neills. We reverse the suromary adjudication that Kevin Cole was entitled to coverage up to the policy limits when he allowed Jeffery Dean Long to drive the vehicle contrary to the named insured's instructions.

IL.

Standard of Review

19 A garnishment proceeding may be decided by summary process resulting in a postjudgment order where it appears there is no dispute as to any identified material fact or inference to be drawn therefrom and all material facts are stipulated or otherwise established. These legal rulings are reviewable de novo, independent of and without deference to the trial court.

TH.

The trial court correctly determined that State Farm is liable to the O'Neills in this garnishment action for the minimum limits of compulsory insurance prescribed by 47 00.98.2001, § 7-601.

110 An omnibus clause in a motor vehicle insurance policy extends liability coverage to the named insured and other persons using the insured vehicle with permission. Hartline v. Hartline, 2001 OK 15, ¶ 15, 39 P.3d 765, 771, note 22. The omnibus clause creates liability insurance in favor of permissive users in addition to the named insured(s) or other persons insured in the policy. Lumbermens Mutual Casualty Company v. Iowa Home Mutual Casualty Company, 1965 OK 87, 405 P.2d 160, 165. The omnibus clause, in effect, protects third parties wrongfully injured by the use of the insured vehicle by persons other than the owner.

T11 Oklahoma's Compulsory Insurance Law requires omnibus coverage. Title 47 ©.8.2001, $ 7-600(1)(b) provides:

1. "Owner's policy". An owner's policy of liability insurance:
b. shall insure the person named therein and insure any other person, exeept as provided in subparagraph c of this paragraph, using an insured vehicle with the express or implied permission of the named insured, against loss from the Hability imposed by law for damages arising out of the ownership, maintenance, operation or use of such vehicle,. .
(Underlining added.)

By the terms of the above statutory omnibus provision, an owner's policy issued in Oklahoma must provide liability coverage to persons using the insured vehicle with the permission of the named insured.

{12 The omnibus provision in State Farm's policy reads as follows:

Who Is an Insured
When we refer to your car, a newly acquired car or a temporary substitute car, insured means:
1. you;
2. your spouse;
4. any other person while using such a car if its use is within the seope of consent of you or your spouse;
(Underlining added.)

By the above policy term, State Farm allows the named insured or the insured's spouse to limit omnibus coverage by placing restrictions on the scope of consent granted. The policy provides omnibus coverage to a permissive user who is liable for loss arising out of the use of the insured vehicle only if the harm-generating use falls within the scope of the consent granted.

18 Notwithstanding our statutory orani-bus provision, State Farm contends that the policy definition of insured excepts Jeffery Dean Long from any category of individuals to whom it owes coverage. State Farm maintains that Long's use of the insured vehicle was outside the scope of the consent granted because Kevin Cole disregarded Willie Cole, Jr.'s instructions not to let anyone else drive the car. The O'Neills and American Fidelity argue, on the other hand, that terms of the statutory omnibus provision require an insurer to provide coverage to any person using the insured vehicle with the named insured's consent without regard to any restrictions or understandings between the insured and the permittee as to the particular use for which permission was given.

T14 Oklahoma's Financial Responsibility Act, 47 O.S.2001, §§ 7-101, et seq., requires that owners maintain liability insurance on their automobiles. The Compulsory Insurance Law, 47 O.S.2001, §§ 7-600, et seq., Article VI of the Financial Responsibility Law, mandates that all motor vehicle owners keep in force liability insurance or other security at not less than the minimum amount provided by § 7-204. The principal purpose of the Act and its compulsory liability insurance requirement is to protect the public from the financial hardship that may result from the use of automobiles by financially irresponsible people. Harkrider v. Posey, 2000 OK 94, ¶ 15, 24 P.3d at 829. "This clearly articulated public policy of our compulsory liability insurance law plainly overrides contrary private agreements that restrict coverage whenever the contractual strictures do not square with the purpose of the Act." Id.

{15 While this Court has not yet considered limitations in an insurance policy omnibus provision in the context of our Compulsory Insurance Law, we have declared void various policy exclusions that defeat the pub-lie policy embodied in the Compulsory Insurance Law. In Young v. Mid-Continent Casualty Co., 1987 OK 88, ¶ 16, 743 P.2d 1084, 1088, we struck down an exclusion based on the age of the driver (under age of 25 years). In Equity Mutual Insurance Co. v. Spring Valley Wholesale Nursery, Inc., 1987 OK 121, ¶ 5, 747 P.2d 947, 952, we invalidated an exclusion based on a geographical restriction (outside 200 mile radius). In Harkrider v. Posey, supra., we have gone so far as to refuse to rescind coverage when the insured misrepresented in the application that there were no other persons of the age of fourteen years or older living with her.

116 The "seope of consent" in State Farm's insurance policy allows the named insured or the insured's spouse to limit the omnibus coverage by placing restrictions on the scope of consent granted to the person using the insured vehicle The provision provides no limits on the potential restrictions the named insured may place on the scope of consent. On its face, it allows the named insured to impose geographical or age restrictions that we have invalidated when insurance companies have place them as exclusions in insurance policies. The provision is so broad that it allows the named insured to create a whole new class of potential uninsured motorists in the State of Oklahoma by restricting the scope of permission granted to a person using the insured vehicle.

$17 While the State Farm policy clearly indicates that permission to use the vehicle is limited by the scope of consent granted, we do not believe that our statutory provision is so qualified. The relevant factor in the statutory omnibus provision is the use of the insured vehicle with express or implied permission. Onee the named insured extends permission, either express or implied, the statutory provision does not provide for limitations on the scope of permission granted.

118 We view the provision in State Farm's policy as contravening the public policy embodied in our Compulsory Insurance Law which evinces an unmistakable intent to maximize insurance coverage for the greater protection of the public. We hold that where the named insured gives permission to another to use the insured vehicle, Okla homa's Compulsory Insurance Law requires liability insurance must continue to cover the insured vehicle even though the permittee exceeds the scope of the named insured's consent. Once express or implied permission to use an insured vehicle is granted, the omnibus coverage is fixed barring criminal theft. Our ruling in this regard is limited to a claim for an amount up to our law's statutory mandate of $10,000 for each person, $20,000 for each accident and $10,000 for property damage. 47 0.8.2001, § 7-204.

19 Accordingly, we hold that the O'Neills are entitled to recover from State Farm the mandatory minimum coverage under the compulsory insurance law, $10,000 on the money judgments entered for personal injury to each of them and $10,000 on the money judgment entered for property loss. We affirm the trial court's summary adjudication that the "Garnishee is liable to the Plaintiffs in this garnishment action for the minimum statutory limits".

IV.

The trial court erroneously determined that State Farm is liable to the O'Neills in this garnishment action for the amount of the policy limits over and above the statutory minimum compulsory insurance limits.

T20 In addition to concluding that the O'Neills were entitled to the minimum limits of compulsory insurance as prescribed by §§ 7-600, et seq., the trial court determined that Kevin Cole was a defined insured under the State Farm policy and entitled to the full limits of its liability coverage. We disagree.

§21 "Onee it appears that the legislative purpose has been served, the statute's mandate is satisfied. Consequently, freedom-of-contract principles control as to any motor vehicle liability coverage in excess of that required by statute." [Footnotes omitted.] Equity Mutual Ins. Co. v. Spring Valley Wholesale Nursery, Inc., 1987 OK 121, ¶ 17, 747 P.2d at 953. To that end, 47 0.8. 2001, § 7-600.1(B) expressly provides that such additional coverage shall not be subject to the provisions of the Compulsory Insurance Law. The named insured and the insurer may both find it to their advantage to allow the named insured to impose restrictions on the seope of consent granted to a permittee in return for a lower premium. Id.

£22 Oklahoma resolves disputes over non-compulsory omnibus liability coverage for negligent operators of motor vehicles under the minor-deviation rule. Lloyds America v. Tinkelpaugh, 1939 OK 135, 184 Okla. 413, 88 P.2d 356, 357. This rule applies a "minor" verses "material" deviation standard. Under the minor-deviation standard, coverage is defeated where there is proof that the deviation from the scope of permission was material in nature.

128 The issue of deviation is normally a question of fact that depends upon the particular facts and cireumstances of each case. Lloyds America v. Tinkelpaugh, supra. However, some deviation might be so slight as to not raise a fact issue as to whether the permission was revoked while other deviation might be so gross as to destroy the permission as a matter of law. Insurance Law, A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices, Keeton and Widiss, (1988) § 4.7(b), p. 860.

124 We view this controversy as falling into that category where the deviation from the seope of consent granted is so material that it destroyed, as a matter of law, the permission given. Kevin Cole allowed Jeffery Dean Long to drive the insured vehicle in violation of the express instructions of Willie Cole, Jr. not to allow anyone else to drive the vehicle. Accordingly, Kevin Cole was not an insured under the terms of State Farm's policy for purposes of liability coverage in excess of the statutory minimum compulsory insurance.

$25 We hold that the O'Neills are not entitled to recover that amount of liability coverage over the $10,000 minimum statutory compulsory requirement and up to the $25,000 limit in State Farm's policy. We reverse the trial court's summary adjudication that "Kevin Cole, as a matter of law, is a defined insured under the State Farm Mutual Automobile Insurance Company insurance policy issued to Defendant Willie Cole, Jr., such that said judgment debtor, Kevin Cole, is entitled to the limits of liability coverage set forth therein of $25,000/$50,000 for bodily injury damages and $25,000 of property damages liability."

v.

Conclusion

T26 In summary, where the named insured gives permission, express or implied, to another to use the insured vehicle, Oklahoma's Compulsory Insurance Law requires liability insurance must continue to cover the insured vehicle even though the permittee exceeds the scope of the named insured's consent. Onee permission to use an insured vehicle is granted, compulsory omnibus coverage is fixed barring criminal theft, up to the statutory minimum of $10,000 for each person, $20,000 for each accident and $10,000 for property damage.

127 Omnibus coverage in excess of the statutory minimum compulsory insurance is controlled by freedom-of-contract principles. Whether a permittee is an insured under a non-compulsory omnibus liability provision is determined under the minor deviation standard. Proof of a material deviation from the scope of consent defeats non-compulsory omnibus liability coverage.

28 Accordingly, the trial court judgment is affirmed in part and reversed in part and this case is remanded to the trial court. On remand the trial court shall enter judgment in favor of the plaintiffs/appellees in the amount of the statutory minimum compulsory insurance.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS, DIVISION I, VACATED; TRIAL COURT AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED WITH INSTRUCTIONS.

ALL JUSTICES CONCUR.

      . Judgment was not entered against Willie Cole, Jr. and after the filing of this appeal, the O'Neills and American Fidelity dismissed their claims against him.

      . The O'Neills and American Fidelity filed three successive garnishments against State Farm. They filed a first garnishment, which was dismissed by agreement, prior to securing a judgment against any of the defendants in the tort action. They filed a second garnishment which identified Kevin Cole as the judgment debtor. They dismissed the second garnishment without filing an election to take issue with State Farm's answer within the statutory time. They filed a third garnishment which identified Kevin Cole and Jeffery Dean Long as judgment debtors.
      State Farm moved to dismiss the third garnishment, contending that its denial of liability under the policy was conclusively established by operation of 12 0.$.2001, § 1177 when the O'Neills and American Fidelity failed to take issue with State Farm's answer in the second garnishment. Although State Farm contended in its petition in error that the trial court erred in overruling its motion to dismiss, the Court of Civil Appeals did not address the issue. Under the authority of Hough v. Leonard, 1993 OK 112, 867 P.2d 438, we review the issue.
      The third garnishment named Jeffery Dean Long as a judgment debtor for the first time. The second garnishment and State Farm's answer in the second garnishment did not relate to State Farm's obligation to indemnify Jeffery Dean Long under its policy. Accordingly, the failure of the O'Neills and American Fidelity to file an election to take issue with State Farm's answer to the second garnishment could not be conclusive of the facts relating to State Farm's obligation as to Jeffery Dean Long. The trial court correctly overruled State Farm's motion to dismiss.

      . This opinion references the most recent codification of our statutes unless a different version is controlling.

      . This garnishment proceeding's disposition by summary process is not in discord with Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 19, 987 P.2d 1185, 1193-1194 (explaining that summary judgment is not available in post-judgment vacation proceeding, but uncontested post-judgment issues when properly identified may be settled by summary process).

      . Brown v. Nicholson, 1997 OK 32, ¶ 5, 935 P.2d 319, 321; and, Kluver v. Weatherford Hospital Authority, 1993 OK 85, ¶ 14, 859 P.2d 1081, 1083.

      . See, Insurance Law, A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices, Keeton and Widiss, (1988), p. 355-357. The omnibus clause creates liability insurance in favor of persons who may not have an insurable interest at the time the coverage is contracted; it is sufficient that such additional insured persons may become legally liable for injury to others.

      . The O'Neills and Araerican Fidelity argue that the potential restrictions are limitless: "a named insured could simply state that he authorized the permissive use only if: (1) the user agrees not to be negligent; (2) agrees not to break the law; (3) agrees not to entrust the vehicle to anyone else; (4) agrees not to drive at night; (5) agrees not to drive during the day; (6) agrees not to drive with passengers; (7) agrees not to drive within a certain geographical area; (8) agrees not to drive within a certain locale; or (9) agrees not to consume alcohol and drive."

      . Equity Mutual Insurance Co. v. Spring Valley Wholesale Nursery, Inc. and Young v. Mid-Continent Casualty Co., supra.

      . Legislative intent that most, if not all, uses of an insured motor vehicle must be included in the compulsory coverage is obvious in 47 0.$.2001, § 7-601. Section 7-601(B) requires every owner of a motor vehicle registered in Oklahoma to maintain insurance or other security on the vehicle at all times and § 7-601(C)(1) prohibits the operation of an uninsured motor vehicle in Oklahoma and requires a non-owner operator to have security verification unless the owner's security does not exclude such person from the coverage.

      . Cases deciding scope-of-permission issues for purposes of motor vehicle liability insurance generally fall within three distinct rules. The first is the strict rule which extends omnibus coverage where there is proof that the use of the insured automobile was clearly within the scope of permission fixed by the owner. The second is the minor-deviation rule which extends omnibus coverage where there is proof that the deviation from the scope of permission was minor in nature. The third is the initial-permission rule which extends omnibus coverage where there is proof that permission to use the insured automobile was initially given. Lloyds America v. Tinkel-paugh, supra. See also, Insurance Law, A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices, Keeton and Widiss, (1988), p. 358.

      . State Farm contended in response to the third motion for summary interlocutory adjudication that neither Willie Cole Jr., Kevin Cole, nor Jeffery Dean Long cooperated in the defense of the tort action which prevented State Farm from defending the negligent entrustment claim against Kevin Cole. To prevail on its affirmative defense of failure to cooperate, State Farm must demonstrate that the absence of the insured was prejudicial to its interest. See, State Farm v. Koval, 146 F.2d 118 (10th Cir.1944). See also, First Bank of Turley v. Fidelity and Deposit Insurance Company of Maryland, 1996 OK 105, 928 P.2d 298. State Farm cannot show prejudice to support this defense in light of our holdings that (1) omnibus coverage for the statutory minimum compulsory insurance limits continued on the insured vehicle even though the permittee (Kevin Cole) exceeded the scope of the named insured's consent and (2) Kevin Cole was not an insured under the terms of the State Farm policy for purposes of liability coverage in excess of the statutory minimum compulsory insurance limits.


source: Caselaw Access Project

author: JONES, P.J.;

license: Public Domain

text:
    2000 OK CIV APP 95
    In The Matter of B.L.S., date of birth 09-09-84, L.A.B., date of birth 09-20-87, and B.W.O., date of birth 01-30-91, deprived children. State of Oklahoma, Petitioner/Appellee, v. Cynthia Carter, Natural Mother, Respondent/Appellant.
    No. 94306.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    July 7, 2000.

      Marlie Lawrence, Sapulpa, Oklahoma, for Appellant,
    Pamela Hammers, Sapulpa, Oklahoma, for Appellee,
    Melinda D. Johnson Ryan, Sapulpa, Oklahoma, for Appellee, Minor Children.
   OPINION

JONES, P.J.;

" 1 The mother of B.L.S., a girl born September 9, 1984, LAB., a girl born September 20, 1987, and B.W.O., a boy born January 30, 1991, appeals an order terminating her parental rights. In November, 1993, the children were removed from the home as the result of physical abuse to the children by the mother's husband at that time and adjudicated deprived. The mother's husband was convicted of child abuse. The mother completed her court-ordered treatment plan and her children were returned to the mother's custody.

T2 On February 22, 1996, the children, again, were taken into emergency custody by the Department of Human Services (DHS). On March 4, 1996, the State of Oklahoma (State) filed a petition to adjudicate the minor children as deprived based on the mother's physical abuse of the children, and her failure to protect the children from abuse by others. The mother appeared at the hearing and waived a jury trial. She further stipe, lated that she had abused her children and had failed to protect them from abuse by others. The children were adjudicated deprived.

T3 A disposition hearing was held on July 1, 1996. The treatment plan adopted by the trial court provided that the mother would complete a psychological evaluation and follow any recommendations for treatment. The evaluating psychologist recommended that mother refrain from cohabiting with anyone for a period of two years due to her co-dependent personality and past abusive relationships. The treatment plan further provided that the mother would obtain suitable (legal) employment and maintain the same job for a period of at least six months; complete parenting classes; attend a support group that deals with issues of co-dependency; attend a support group for domestic violence; refrain from negative comments or discussion of this litigation with the minor children; individual counseling; and pay child support.

4 The mother completed the psychologist evaluation, completed parenting classes, attended classes on co-dependency, classes on domestic violence and individual counseling. The mother did not refrain from cohabiting with anyone, instead she remarried as soon as her last divorce was final,. The mother did not demonstrate that she had maintained employment for six months. The mother only had telephone contact with the girls because after each visit the girl's therapy regressed severely. The mother's phone calls were monitored because the mother did make inappropriate comments to the girls. The mother did not pay child support. The mother's failure to comply with the plan led the State two and half years later, on November 2, 1998, to file its Application to Terminate Parental Rights. A hearing was held on January 10, 2000, resulting in an order terminating the mother's parental rights. The mother appeals.

15 On appeal, the mother argues: 1) the trial court erred in directing a verdict on the factual issue of whether the mother corrected the conditions leading to the deprived adjudication of her children; 2) the trial court abused its discretion in admitting prejudicial evidence; 3) the trial court abused its discretion in disallowing the children's testimony on the mother's behalf; 4) she received ineffective assistance of counsel; and, 5) DHS contributed to her failure to correct the conditions necessary to prevent this termination. Pursuant to 10 O.S. Supp.1998 § 7006-1.1, to terminate parental rights, the State must show, by clear and convincing evidence, that (a) the child is deprived; (b) such condition is caused or contributed to by acts or omissions of his parent; and, (c) termination of parental rights is in the best interest of the child. The burden of evidence or persuasion then shifts to the parent to show by clear weight of the evidence that conditions have changed and have been corrected since the adjudication of the deprived child. In the Matter of Christopher H., 1978 OK. 50, 577 P.2d 1292, 1293.

16 We will only address the issue of whether the trial court erred in directing a verdict on the factual issue of whether the mother corrected the conditions leading to the deprived adjudication of her children as it is dispositive. The State moved for a directed verdict on this issue at the close of their presentation of evidence. The State argued that the mother had admitted she had not met every single condition mandated by the treatment plan. The mother argued that a material fact question existed because she believed she had made sufficient changes in her life to correct the reason her children were taken into DHS custody. The trial court directed the verdict on this issue. After this ruling, the trial court ordered that the mother was precluded from presenting any evidence regarding her compliance with the treatment plan. This ruling precluded the mother from demonstrating she had corrected the conditions which led to the necessity of a treatment plan. Thus, the ruling has the effect of preventing the mother's showing proof of the ultimate question involved here, that the conditions necessitating the plan had been corrected.

17 The legal standard that governs motions for a directed verdict and those for summary judgment is very similar. Neither may be sustained unless there is an entire absence of proof on a material issue. Both should be denied when there are questions of material fact or reasonable persons could differ regarding the choice of inferences to be drawn from the facts in evidence. In determining whether a party's evidence is sufficient to withstand a motion for a directed verdict, the trial court must consider as true all evidence favorable to the nonmoving party, together with all reasonable inferences to be drawn from it, and disregard all conflicting evidence favorable to the movant. Only if all the inferences to be drawn from the evidence are in favor of the moving party will a directed verdict withstand appellate scrutiny. Harder v. F.C. Clinton, Inc., 1997 OK 137, 948 P.2d 298, 301-02.

18 The State urges that onee the mother admitted she had not met all of the conditions, no fact question remained for the jury on this issue. The service plan is most often used by the parties in termination cases to prove their cases. However, the plan is nothing more than evidence used to prove the statutory elements. The State uses noncompliance with the plan as evidence that parental rights should be terminated because the bad conditions caused by the parent's actions or inactions have not been corrected within the statutory time. The parent uses compliance with the plan to show the conditions leading to the adjudication have been corrected. In the Matter of J.M., 1993 OK CIV APP 121, 858 P.2d 118, 120. While the mother admitted she did not meet all of the requirements as specifically outlined, the mother, in her limited testimony, did create a question of fact regarding whether she had changed the conditions resulting in the deprived status of her children. This question of fact was created during the State's direct examination when the mother testified she believed she had corrected the main condition leading to her children being removed from her home because she was no longer in an abusive relationship. She had married a stable man and she had been living in a stable, nonviolent home with her new husband for fourteen months. The mother testified repeatedly that she had turned her life around. Not only was a fact question created, but the directed verdict in effect precluded the mother from rebutting the State's prima facie case. The interest of children in a wholesome environment has a constitutional dimension no less compelling than a parent has in the preservation of family integrity. In the hierarchy of constitutionally protected values, both interests rank as fundamental and must hence be shielded with equal vigor and solicitude. In re T.H.L., 1981 OK 103, 636 P.2d 330, 334.

T9 Pursuant to Harder, the trial court may only direct a verdict when there is an absence of proof on a material issue. Here, the jury may have believed that while the mother did not meet all of the express conditions of the treatment plan, she had substantially changed her lifestyle to have corrected the condition which led to the removal of her children. The trial court erred in directing a verdict when there was disputed evidence presented on this material fact question. This matter is reversed and remanded for proceedings consistent with this opinion.

110 REVERSED AND REMANDED.

T11 GARRETT, J., and BUETUINER, J., concur.

      . The ultimate question is of course the best interest of the children. Matter of A.D.B., 1991 OK 96, 818 P.2d 483, 490.


author: ADAMS, J:

text:
    2000 OK CIV APP 92
    Pamela Diane SWEARINGEN, Plaintiff/Appellee v. Charles Gregory SWEARINGEN, Defendant/Appellant
    No. 93006.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Aug. 11, 2000.
    Terry A. Baulch, Ada, Oklahoma, for Plaintiff/ Appellee,
    James R. Neal, Ada, Oklahoma, for Defendant/Appellant.
   OPINION

ADAMS, J:

{1 On February 28, 1990, the trial court filed a Decree of Divorcee dissolving the marital bonds between Pamela Swearingen (Mother) and Charles Swearingen (Father). According to the Decree, Father not only failed to answer Mother's petition but did not appear at the hearing. The Decree placed custody of the two minor children, then approximately 11 and 9, with Mother. With regard to child support, the Decree provided Father "should pay child support for said children according to the guidelines set by the State of Oklahoma, in the amount of $160.00 per month per child, during the minority of said children or until the further order of this Court." (Emphasis added). Attached to the Decree was a Child Support Computation form. This form, consisting of three pages, was signed by the judge and stated the "PAYORS TOTAL SUPPORT OBLIGATION" and "NET CHILD SUPPORT (Amount Payor Pays Payee)" to be "$160.00." The form stated the number of children as "2," and on the second page, the phrase "Guidelines were followed" was preceded by a handwritten "x."

T2 Approximately nine years later, Father filed an APPLICATION FOR ORDER NUNC PRO TUNC, in which he alleged the portion of the Decree setting child support at $160.00 "per child" was a serivener's error, noting the court's specific finding that the child support was "according to the guidelines set by the State of Oklahoma"and the attached form computing his totul net support at $160.00. Mother responded, arguing that the trial court intentionally deviated from the guidelines and that it was too late to attack that decision. Mother also argued that Father's application was, in effect, an improper request for retroactive modification of child support and that Father's application was barred by laches. After hearing argument from the parties, the trial court allowed additional time for briefing but indicated that "the Court shall rule on the briefs, unless a party requests a formal hearing." Although both parties filed supporting briefs, neither party requested a formal hearing. Accordingly, the trial court ruled on Father's application based upon "the briefs submitted" and denied his application. Father appeals.

T8 Father argues that his complaint about the Decree was properly addressed by means of an order nune pro tunc. We agree. As noted in Stork v. Stork, 1995 OK 61, ¶ 7, 898 P.2d 732, 736-737,

Orders nune pro tune are designed neither to bring into the record what a court might or should have done nor what it might or should have intended to do. The function of a nune pro tune entry is to amend a judgment to make it speak the truth about what actually transpired or was considered and adjudged. Nunc pro tunc relief is limited to supplying inadvertent clerical omission and correcting facial mistakes in recording judicial acts that actually took place. In short, a nune pro tune order can and will place of record what was actually decided by the court but was incorrectly recorded. The device may neither be invoked as a vehicle to review a judgment (or to excise legal errors found in it) nor as a means to enter a different judgment.
(Footnotes omitted; emphasis in original).

T4 Father premised his application on the contention that the use of the term "per child" was the result of a serivener's error. His argument is supported by the entries made by the trial court on the attached Child Support Computation form. The face of the judgment roll specifically refutes Mother's contention that the trial court actually deviated from the guidelines. The Decree reflects the trial court followed the guidelines, and we can only conclude that the "per child" language in the Decree resulted from the error of the person who drafted the Decree after the trial court had announced its decision. Unless one of the other defenses raised by Mother to Father's application is appropriate under these circumstances, Father was entitled to the requested relief.

15 Mother argues that the rule prohibiting retroactive modification of child support, see 48 0.8.1991 112(A)(8), bars an order nume pro tune in this case. We disagree. An order nune pro tune correcting the seriv-ener's error in the Decree does not in any way "modify" Father's true child support obligation. It merely causes the record of the trial court's order setting that obligation to accurately reflect the obligation determined by the trial court in the first instance.

T6 Finally, Mother argues Father's delay in bringing this application should bar any relief on the basis of laches. Laches involves an unreasonable delay by one party in the enforcement of a claim where that delay causes another party to be prejudiced as a result of the delay. Olansen v. Texaco, Inc., 1978 OK 139, 587 P.2d 976. In legal significance, it is not merely delay, but a delay that causes a disadvantage to another. Marshall v. Amos, 1968 OK 86, 442 P.2d 500. "The party invoking the defense of laches must prove that it suffered some irreparable damage or loss because of a change of conditions in relying on the inaction and indifference of the other party." Clark v. Unknown Heirs of Osborn, 1989 OK 145, ¶ 4, 782 P.2d 1384, 1386.

T7 Mother has not demonstrated how she has been prejudiced by Father's delay in requesting the mune pro tune correction of the Decree. Certainly, Mother's rights are affected by the correction, i.e., Father's unpaid child support obligation will be smaller. However, she would have suffered the same reduction if Father had brought his application sooner. On this record, laches does not apply.

' 8 The face of the judgment roll is consistent only with Father's argument that the drafter of the Decree made a clerical error in causing it to read so that Father's child support obligation would be $160.00 per child per month rather than a total of $160.00 per month as indicated on the Child Support Guideline Computation form attached to the Decree and which contained a finding that the trial court was following the guidelines. The trial court erred in denying Father's request for a nune pro tunc correction of the Decree to make it reflect the judgment that was actually entered. The trial court's order is reversed, and the case is remanded for further proceedings consistent with this opinion.

T9 REVERSED AND REMANDED

[ 10 HANSEN, V.C.J., and JOPLIN, J., concur.

      . According to Mother, Father has paid little, if any, child support over the last nine years.


author: DURRANT, Associate Chief Justice:

text:
    2002 UT 63
    GUARDIAN TITLE COMPANY OF UTAH, a corporation, Plaintiff and Appellant, v. Stacey MITCHELL, formerly known as Stacey Howell; Tebbs & Smith P.C., a corporation; Douglas L. Rex; Stagg & Associates, a corporation, Defendants and Appellees.
    No. 20010283.
    Supreme Court of Utah.
    July 19, 2002.

      Gary A. Weston, D. Seott Crook, Salt Lake City, for plaintiff.
    Douglas T. Hall, Michael F. Jones, Salt Lake City, for defendants.
   DURRANT, Associate Chief Justice:

T1 This appeal concerns an accounting contract. Guardian Title Company of Utah sued Tebbs & Smith P.C., a professional accounting firm, claiming that Tebbs breached its contract with the title company by not preventing an employee of Tebbs from writing unauthorized checks to herself. The district court granted summary judgment in favor of Tebbs, reasoning that (1) Guardian Title's contract claims were subject to tort analysis, (2) two tort principles barred Guardian Title's claims, and (8) Guardian Title's implied covenant of good faith and fair dealing claim could not be sustained because it would add a new and independent term to the agreed upon contract.

12 We reverse for three reasons. To begin with, Guardian Title clearly pleaded contract causes of action; no tort analysis is therefore necessary. Second, the tort principles of comparative negligence and agency liability relied on by the district court do not apply to contract actions. Finally, Guardian Title's implied covenant of good faith and fair dealing claim does not depend on the cere-ation of a new and independent contractual term because the term that Tebbs would prevent its employees from writing unauthorized checks already existed in the agreement between the two companies.

BACKGROUND

13 In reviewing a grant of summary judgment, the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. E.g., Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993). We state the facts accordingly.

{4 In the mid-1970's, Guardian Title entered into a contract with Tebbs in which Tebbs agreed to provide the title company with professional accounting services. Under the original terms of this agreement, Tebbs contracted to reconcile Guardian Title's bank account, handle its taxes, and prepare its financial statements.

15 In approximately 1983, Tebbs agreed to provide additional accounting services to Guardian Title. Specifically, Tebbs expressly and implicitly covenanted to prepare checks payable to Guardian Title's employees, reconcile its payroll account, prepare its payroll tax reports, and withhold its payroll taxes (collectively referred to as the "Payroll Account Services"). Stacey Mitchell, an employee of Tebbs, assumed the primary responsibility of performing these services on behalf of the accounting firm in or around 1995.

I 6 In 1996, Guardian Title's president and sole owner, Douglas W. Curlis, moved to southern Utah. He nevertheless continued to manage Guardian Title's Salt Lake City office. In order to facilitate payment to Guardian Title's employees, Curlis provided pre-signed blank payroll checks to Tebbs. Tebbs would then fill in the employees' names and salaries pursuant to a list that it had received from Guardian Title, and return the payroll checks to the title company to distribute to its employees. Later, Guardian Title authorized Curlis's secretary to use a signature stamp to sign the payroll checks.

T7 In October 1997, Guardian Title terminated its relationship with Tebbs and employed a different accounting firm to administer its payroll. It switched accounting firms again in or around December 1997. Thereafter, it discovered that during the period Mitchell handled the Payroll Account Services on behalf of Tebbs, she had written thirty-five unauthorized checks to herself.

8 On April 14, 1999, Guardian Title filed a complaint against Tebbs for breach of contract, alleging that Tebbs had "expressly and implicitly covenanted" to provide the Payroll Account Services and that it had failed to perform those services. Tebbs then moved for summary judgment on September 27, 2000, asserting that it did not breach either an express or implied agreement with Guardian Title and that Guardian Title's action was in reality a tort claim barred by agency and comparative negligence principles.

T9 At a hearing conducted on October 25, 2000, the district court granted Tebbs's summary judgment motion for four reasons. First, it concluded that although Guardian Title filed a contract action against Tebbs for breaching its duty to deal honestly with funds entrusted by a client, according to the court of appeals' opinion in Kilpatrick v. Wiley, Rein, & Fielding, 909 P.2d 1283 (Utah Ct.App.1996), the analysis for whether such a duty had been violated was identical to a negligence cause of action. Second, it held that the tort principle that an employer is not liable for the illegal acts of an employee applies to contract actions. Third, it reasoned that Guardian Title's implied covenant of good faith and fair dealing claim could not be sustained because it would add a new and independent term to Guardian Title's contract with Tebbs. Finally, it relied on the "other reasons" advanced by the accounting firm (Le., the argument that Guardian Title's own negligence precluded its recovery).

110 Following this hearing, the district court entered a final order granting summary judgment to Tebbs on November 15, 2000. Guardian Title appeals. We have jurisdiction pursuant to section 78-2-2(@8)(J) of the Utah Code.

T11 On appeal, Guardian Title contends that the district court erred in three respects. Specifically, it argues that the district court incorrectly concluded that (1) its contract action against Tebbs was subject to tort analysis under Kilpatrick, (2) tort doe-trines regarding comparative negligence and respondeat superior apply to contract actions, and (8) its implied covenant of good faith and fair dealing claim could not be sustained because a new and independent term would be added into the agreed upon contract.

ANALYSIS

I. STANDARD OF REVIEW

112 In examining the district court's grant of summary judgment, we review its legal conclusions for correctness. E.g., Tustian v. Schriever, 2001 UT 84, ¶ 13, 34 P.3d 755. Summary judgment is appropriate only if the evidence demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c).

II. GUARDIAN TITLE'S CLAIMS SOUND IN CONTRACT AND ARE NOT SUBJECT TO TORT ANALYSIS

113 Relying on Kilpatrick, Tebbs argues that the district court correctly concluded that Guardian Title's contract-based action should be treated as a tort claim and that there were no contractual provisions on which Guardian Title could prevail. We disagree.

114 In a relationship with a professional, there may be several sources of liability on which a client can bring a claim: (1) duties imposed by operation of law, (2) contractual obligations, or (8) coextensive tort and contract duties. See Salt Lake County v. W. Dairymen Coop., 2002 UT 39, ¶ 18, 48 P.3d 910 (holding that "there is no blanket prohibition against creating a contractual duty that parallels a common law obligation"); Beck v. Farmers Ins. Exch., 701 P.2d 795, 800 n. 3 (Utah 1985) (recognizing "that in some cases the acts constituting a breach of contract may also result in breaches of duty that are independent of the contract and may give rise to causes of action in tort"); see also Kilpatrick, 909 P.2d at 1289 (declaring that "[cllients wronged by their lawyers may sue for damages based on breach of contract, breach of fiduciary duty, or negligence"). Where a plaintiff seeks to enforce an obligation arising exclusively in tort, it must file a tort action; likewise, obligations that sound exclusively in contract must be pursued as contract claims. With respect to duties that arise both in tort and contract, however, a plaintiff may elect to bring a tort action, a contract action, or both.

{15 Here, Guardian Title filed a breach of contract action, contending that Tebbs breached explicit contractual terms and an implied covenant of good faith and fair dealing. Specifically, in its complaint, Guardian Title alleged that it entered into an oral agreement with Tebbs in which the accounting firm expressly and implicitly covenanted to prepare its payroll checks, reconcile its payroll accounts, and prepare its tax reports. It further alleged that Tebbs failed to perform those services.

T 16 While Guardian Title clearly pleaded contractual causes of action, the district court reasoned that its claims were in reality tort actions because they all involved the tort-like duty to "deal honestly with funds entrusted by the client." In reaching this conclusion, however, the district court misconstrued the nature of Guardian Title's claims. Contrary to the district court's interpretation, Guardian Title does not allege that Tebbs violated a tort-like duty of honesty and fidelity. Instead, Guardian Title asserts that Tebbs breached its express contractual duty to perform the Payroll Accounting Services and an implied contractual duty of good faith and fair dealing to pay only Guardian Title's employees. Accordingly, this is purely a contract action, and no tort analysis is required.

III. THE TORT DEFENSES RELIED ON BY TEBBS ARE NOT AVAILABLE IN CONTRACT ACTIONS

117 Given that Guardian Title filed only contractual claims, we next examine whether the district court correctly held that the tort doctrines (1) that a plaintiff may not recover if its negligence exceeds that of the defendant and (2) that an employer is not responsible for the illegal acts of an employee in respondeat superior apply to contract actions. Tebbs contends that regardless of whether an action is pleaded in contract or tort, the district court's ruling should be affirmed because Guardian Title's negligence exceeded its negligence and the criminal act of one of its employees (Le., Mitchell) should not impose liability on it. We disagree.

118 A contract is an agreement between two parties that imposes obligations on each. Black's Law Dictionary 818 (7th ed.1999). Where one party fails to satisfy the obligations it has undertaken, it has breached the contract, and it cannot defend itself by claiming either (1) that the other party's negligence exceeded its own or (2) that an illegal act of its employee prevented it from fulfilling its obligations. Indeed, if a landscaping company contracts to mow an individual's lawn and then fails to perform on that contract, the company cannot defend itself on the ground that the individual was more at fault or that one of its employees stole its lawnmower; the pertinent questions are whether the individual's lawn has in fact been mowed and if that individual performed its duties under the contract. Accordingly, the tort defenses relied on by Tebbs and the district court have no application to the present situation. The district court erred in concluding otherwise.

IV. GUARDIAN TITLE'S IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING CLAIM

119 Having determined that Guardian Title's contractual causes of action should not be treated as tort claims and that none of the tort defenses asserted by Tebbs apply to contract actions, we next consider whether the district court correctly rejected Guardian Title's breach of an implied covenant of good faith and fair dealing claim on the ground that no term in the contract at issue declared that Tebbs would refrain from paying individuals outside of Guardian Title's payroll. Tebbs argues that we should affirm the district court's conclusion because Brehany v. Nordstrom, 812 P.2d 49, 55 (Utah 1991), states that the covenant of good faith and fair dealing "cannot be construed ... to establish new, independent rights or duties not agreed upon by the parties." The case at hand would not require such a construction, however.

120 Tebbs explicitly covenanted to prepare checks payable to Guardian Title's employees and reconcile its payroll account. Contrary to the narrow meaning the district court apparently gave to these contractual terms, we conclude that the good faith performance of both of these obligations requires that Tebbs refrain from paying individuals other than Guardian Title's employees. Indeed, by agreeing to such terms, Tebbs effectively agreed to ensure that no unauthorized payroll payments were made. It did so because the word "reconcile" means to "check a financial account against another for accuracy," Webster's Collegiate Dictionary 977 (10th ed.1998) (internal parentheses omitted), and the obligation to prepare checks payable to Guardian Title's employees implies that no checks will be written to individuals not included in that category. Accordingly, the notion that Tebbs would prevent Mitchell from writing unauthorized checks was an express term in the contract Tebbs had with Guardian Title The district court therefore erred in holding that Guardian Title's implied covenant of good faith and fair dealing claim depended on the creation of a new contractual term.

CONCLUSION

4121 In summary, we hold that (1) Guardian Title's claims sounded exclusively in contract, (2) the tort principles of comparative negligence and respondeat superior have no application to Guardian Title's contract claims, and (8) Guardian Title's implied covenant of good faith and fair dealing claim did not depend on the creation of a new contractual term because such a term already existed in the contract. We therefore reverse the district court's decision and remand for further proceedings consistent with this opinion.

1 22 Chief Justice DURHAM, Justice HOWE, Justice RUSSON, and Justice WILKINS concur in Associate Chief Justice DURRANT's opinion.

      . Stacey Mitchell previously went by the name Stacey Howell.

      . We note that Guardian Title also sued Mitchell and the two other accounting firms. Those actions are not relevant to this appeal, however. We therefore do not discuss them in detail.

      . Of course, if the plaintiff elects to bring both a contract action and a tort claim regarding the same duty, dual recovery is prohibited.

      . Tebbs asserts that Guardian Title did not adequately set forth in its complaint a cause of action for breach of an implied covenant of good faith and fair dealing. "(Under Utah's liberal notice pleading requirements, [however,] all that is required is that the pleadings be sufficient to give fair notice of the nature and basis of the claim asserted and a general indication of the type of litigation involved." Fishbaugh v. Utah Power & Light, 969 P.2d 403, 406 (Utah 1998) (citation and internal quotations omitted). Guardian Title satisfied this burden by asserting in its complaint that Tebbs (1) "expressly and implicitly covenanted" that it would perform the Payroll Account Services, (2) agreed to perform those services "honestly," and (3) breached its agreement. Accordingly, Guardian Title adequately pleaded a cause of action for the breach of an implied covenant of good faith and fair dealing.

      . We note that Guardian Title could have filed a tort action alleging that Tebbs violated its duty of honesty and fidelity. Guardian Title elected not to file such an action, however, and pursued only contractual claims. As a result, Tebbs lost the right to certain defenses that are available in tort. However, Guardian Title also forfeited some arguments (e.g., its potential to recover punitive damages). Moreover, Tebbs acquired the right to argue that Guardian Title's suit is precluded by contract defenses that are not applicable to tort actions.

      . This decision is not inconsistent with the court of appeals' ruling in Kilpatrick for two reasons. First, Kilpatrick declares that "actions based on breach of contract are conceptually distinct" from tort actions. 909 P.2d at 1290. Second, the portion of Kilpatrick noting that "the same standard of causation applies whether the alleged wrong is a negligent act, fiduciary breach, or even a contractual breach," id. at 1291, is dictum because that case did not involve any contract claims.

      . Although the negligence purportedly committed by Guardian Title does not bar its suit entirely, we note that such conduct may be relevant in determining whether Guardian Title properly mitigated its damages.


author: ORME, Judge:

text:
    2002 UT App 271
    BANK ONE UTAH, N.A., Plaintiff and Appellant, v. WEST JORDAN CITY, Defendant and Appellee.
    No. 20000785-CA.
    Court of Appeals of Utah.
    Aug. 15, 2002.
    Arnold Richer and Mark E. Medcalf, Richer Swan & Overholt, Midvale, for Appellant.
    Kevin R. Watkins, Kaysville, Ryan B. Carter, and Stuart E. Williams, West Jordan City Prosecutor, and Ronald C. Wolthuis, Bugden & Isaacson LLC, Salt Lake City, for Appellee.
    Before Judges BILLINGS, DAVIS, and ORME.
   OPINION

ORME, Judge:

{1 Bank One appeals the summary judgment in favor of West Jordan City, which judgment was premised on the conclusion that the bank's statutorily required notice of claim was not timely filed. Bank One contends it did not have a reason to initiate a claim against West Jordan until it knew of West Jordan's responsibility for the bank's injury and the amount of its damages. We reverse.

FACTUAL BACKGROUND

"In reviewing a grant of summary judgment, we review the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Regal Ins. Co. v. Bott, 2001 UT 71, ¶ 2, 31 P.3d 524.

3 Working to install a fiber optic conduit in West Jordan, Upper Valley Utilities (UVU) conducted drilling activities in early March 1999 in front of a building owned and occupied by Bank One. Prior to initiating its drilling, UVU contacted the Blue Stakes Location Center to have the utilities in the area marked. Blue Stakes contacted West Jordan and informed it of the installation and the need to have its utility lines marked. West Jordan was then required to properly mark the utility lines in the area to be excavated. See Utah Code Ann. § 54-8a-5 (1999). West Jordan was negligent in the marking of its sewer line, and as a result, UVU drilled into the sewer line that services Bank One's facility.

T4 A few days later, Bank One began having problems with the operation of its restrooms. Believing the sewer line to be merely clogged, Bank One reported the problems it was having to West Jordan. On March 15, 1999, a West Jordan representative inspected the sewer line and reported that he was unable to find any malfunction or problem with the line.

15 Left with inoperative restrooms, Bank One hired a private contractor to identify the source of the plumbing probleras. On March 22, 1999, the private contractor discovered that the West Jordan sewer line servicing Bank One had been punctured. That same day, representatives of UVU and West Jordan met with representatives of Bank One to inspect the punctured sewer line, discuss the cause of the damage, and determine which party should pay for the repairs. At that meeting, both West Jordan and UVU, apparently blaming each other, denied responsibility for Bank One's damage and refused to pay for repairs. Due to the refusal of both West Jordan and UVU to repair the damaged sewer line, Bank One was forced to retain the services of a private contractor, who repaired the sewer line at Bank One's expense on about April 1, 1999.

1 6 On September 27, 1999, Bank One commenced this action against UVU and West Jordan seeking recovery of the $29,986.49 it paid to have the sewer line repaired. West Jordan defended by asserting, among other things, that Bank One had failed to file a notice of claim as required by the Utah Governmental Immunity Act, Utah Code Ann. § 63-30-13 (1997). Bank One then filed its notice of claim on March 22, 2000. Two months later, the trial court ruled that West Jordan's failure to properly mark the sewer line absolved UVU of Hability and granted UVU's motion for summary judgment. The trial court then determined that Bank One's cause of action accrued on March 15, 1999, when Bank One first observed its toilets malfunctioning. Accordingly, the court concluded that Bank One filed its notice of claim "more than one year after the claim arose" and granted West Jordan's motion for summary judgment. Bank One appeals.

ISSUE AND STANDARD OF REVIEW

T7 Bank One argues that the trial court erred in concluding that its claim against West Jordan accrued on March 15, 1999, and in subsequently granting West Jordan's motion for summary judgment. "In reviewing a grant of summary judgment, this court views 'the facts in a light most favorable to the losing party below' and gives 'no deference to the trial court's conclusions of law: those conclusions are reviewed for correctness."" Goodnow v. Sullivan, 2002 UT 21, ¶ 7, 44 P.3d 704 (quoting Blue Cross & Blue Shield v. State, 779 P.2d 634, 636-37 (Utah 1989)).

ANALYSIS

18 "Limitation periods begin to run when a cause of action has accrued, which 'oceurs upon the happening of the last event necessary to complete the cause of action.'" Aragon v. Clover Club Foods Co., 857 P.2d 250, 252 (Utah Ct.App.1993) (quoting Becton Dickinson & Co. v. Reese, 668 P.2d 1254, 1257 (Utah 1983)). The parties disagree about what that last event was. West Jordan contends that Bank One's claim accrued when Bank One discovered that its restrooms were not operating properly. Bank One counters that its claim against West Jordan could not have acerued prior to its payment for the necessary repairs, which established its damages. Thus, the appeal turns on whether the one-year period in which Bank One was required to file its notice of claim with West Jordan began to run when the injury occurred, ie., when the toilets first malfunctioned, or at some later date.

19 As a general matter, " ( "where statutory language is plain and unambiguous, this Court will not look beyond the same to divine legislative intent. Rather, we are guided by the rule that a statute should generally be construed according to its plain language."'" Sorenson Ranch School v. Oram, 2001 UT App 354, ¶ 8, 36 P.3d 528 (citations omitted). Therefore, the particular language used in a statute setting a limitation period has proved critical to proper interpretation of the statute. See McDougal v. Weed, 945 P.2d 175, 177 & n. 1 (Utah Ct.App.1997); Aragon, 857 P.2d at 252-53.

[ 10 In MeDougal, we interpreted the language of the Utah Healthcare Malpractice Act, Utah Code Ann. § 78-14-4 (1996), which provided in relevant part as follows:

"No malpractice action against a health care provider may be brought unless it is commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect or occurrence...."

McDougal, 945 P.2d at 176-77 (quoting Utah Code Ann. § 78-14-4 (1996)) (emphasis in original). At issue in that case was whether the "statute of limitations [was] tolled until the time the plaintiff discover[ed], or through the use of reasonable diligence should have discovered, both the existence of the recoverable injury and the defendant's identity." Id. at 176 (emphasis in original). We concluded that section 78-14-4 did "not require that the statute of limitations be tolled until the identity of the tortfeasor [had been] discovered or should have been discovered." Id. at 177. This was because "the {relevant] statutory language clearly set[ ] the moment the 'patient discovers ... the injury' as the triggering moment for the limitations period." Id. (quoting Utah Code Ann. § 78-14-4(1) (1996)) (emphasis added). Thus, by its plain language, the statute made clear that identifying the party responsible for the injury was not a prerequisite to the limitation period beginning to run.

11 However, in Aragon, the language of the applicable statute compelled a different conclusion. Unlike the statute at issue in McDougal, the statute considered in Aragon, which set the limitation period for filing products liability actions, provided:

"A civil action under this chapter shall be brought within two years from the time the individual who would be the claimant in such action discovered, or in the exercise of due diligence should have discovered, both the harm and its cause."

Aragon, 857 P.2d at 252 (quoting Utah Code Ann. § 78-15-3 (1992)) (emphasis added). We interpreted the Legislature's inclusion of the phrase "and its cause" as indicating that the statute of limitations would not start to run "until the plaintiff discovers, or in the exercise of due diligence should have discovered, the identity of the [tortfeasor]." Id. at 253. We reasoned that lacking such information, a plaintiff could not know the cause of his or her injury.

112 We follow the same statute-specific approach in this case and focus on the exact language used. The relevant part of section 63-80-18, which "operate[s] as a one-year statute of limitations in cases brought against a governmental entity," Warren v. Provo City Corp., 838 P.2d 1125, 1128 (Utah 1992), provides:

A claim against a political subdivision, or against its employee for an act or omission occurring during the performance of his duties, within the seope of employment, or under color of authority, is barred unless notice of claim is filed with the governing body of the political subdivision within one year after the claim arises....

Utah Code Ann. § 63-30-18 (1997) (emphasis added). Obviously, a party cannot have a legitimate "claim" against a governmental entity until it is aware that the governmental entity's action or inaction has resulted in some kind of harm to its interests. Only then does it have not just a gripe against parties unknown, but a "claim" against a particular governmental entity.

113 The trial court in this case reached the conclusion that Bank One's claim arose on March 15, 1999. Our review of the record suggests otherwise. While Bank One began having trouble with its restrooms on March 15, 1999, it reasonably assumed the problem to be the product of clogging or some other internal plumbing problem. It did not see a link between its malfunctioning toilets and the drilling that occurred days before on a public street. More importantly, at that point it had absolutely no reason to suspect that West Jordan had negligently marked the utilities and that this negligence precipitated the problems Bank One was having. This is especially true given West Jordan's report to Bank One that its inspection of the sewer line on March 15, 1999, disclosed no problems. Thus, Bank One did not have a claim against West Jordan, for purposes of section 63-80-13, on March 15, 1999.

1 14 However, cireumstances changed dramatically a week later. On March 22, a contractor made Bank One aware that its restroom problems were the result of the sewer line being punctured by the recent drilling. While it is not completely clear from either the record or the parties' arguments, it also appears that it was at the March 22 meeting that Bank One became aware, for the first time, that West Jordan was responsible for marking all utilities prior to UVU's exeavation. It is only at the point when Bank One learned this, and of UVU's denial of responsibility, that the bank had any reason to know it had a claim that could legitimately be asserted against West Jordan. Thus, West Jordan's contention that Bank One's claim acerued on March 15, 1999, fails.

15 Bank One contends that its claim did not acerue until April 1, 2000, when it paid for the repairs done to the sewer line. We disagree. On March 22, 1999, Bank One was aware that its property had been harmed by the negligently handled drilling work. Moreover, Bank One had become aware of the fact that West Jordan was responsible for properly marking the lines prior to excavation and that UVU denied it was at fault. While it was not clear on March 22, 1999, how much it would cost to repair the damaged sewer line, and thus the exact amount of Bank One's damages was not yet established, all the events necessary to complete the claim had occurred by that date. See Utah Code Ann. § 63-30-11(8)(a)(iii) (Supp.1998) (indicating that notice of claim need not contain exact amount of damages, but only "the damages incurred by the claimant so far as they are known").

16 Our recognition of March 22, 1999, as the date that Bank One can meaningfully be said to have first had a claim against West Jordan places Bank One's March 22, 2000, filing of its notice of claim just within section 63-30-13's one-year filing deadline. See Utah R. Civ. P. 6(a) ("In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday."). Accordingly, the trial court erred in concluding that Bank One's March 22, 2000, filing of its notice of claim was untimely.

CONCLUSION

T17 A potential plaintiff does not have a claim against a political subdivision until it becomes aware that the entity has in some way harmed the plaintiff. Accordingly, Bank One did not have a claim against West Jordan until at least March 22, 1999, when Bank One became aware of the fact that its plumb ing problems had quite possibly been caused by West Jordan's failure to properly mark its sewer line. Therefore, we conclude that Bank One's March 22, 2000, filing was timely. Accordingly, we reverse the summary judgment against Bank One and remand for trial or such other proceedings as may now be appropriate.

118 WE CONCUR: JUDITH M. BILL INGS, Associate Presiding Judge, and JAMES Z. DAVIS, Judge.

      . Our holding here is supported by Vincent v. Salt Lake County, 583 P.2d 105 (Utah 1978), decided under a prior version of section 63-30-13. See Utah Code Ann. § 63-30-13 (1968) ("A claim against a political subdivision shall be forever barred unless notice thereof is filed within ninety days after the cause of action arises[.]").
      In Vincent, the plaintiffs sued Salt Lake County for damage to their garage caused by a leaking storm drain. See id. at 106. Over a period of years, Mr. Vincent contacted Salt Lake County Flood Control three times about cracks in his garage wall, wondering if they might have been caused by the storm drain. See id. After each of his first two calls, the County inspected the drain and informed Mr. Vincent there was no correlation between the drain and the widening cracks in the Vincents' garage. See id. The third time Mr. Vincent contacted the County, he again "was given 'no satisfaction.'" Id. Mr. Vincent then hired a contractor who excavated and discovered that the storm drain was leaking and was indeed the cause of the Vincents' problems. See id. The Vincents then filed a notice of claim with the County. See id.
      In response to the County's assertion on appeal that the Vincents' notice was filed beyond the limitation period, the Supreme Court observed that "no cause of action arose until plaintiffs actually discovered the storm drain was leaking water underneath the garage foundation." Id. at 107. The Court stated:
      [Lt is incongruous to require plaintiffs to commence an action against the county when the cause of the damage is unknown to plaintiffs, and they have reasonably relied to their detriment upon the county's false representations regarding the leaking pipe.
      Id. at 107. The factual similarities between Vincent and the instant case are obvious, and, although decided under a previous version of section 63-30-13, Vincent's holding squarely supports our decision here.

      . The Utah Governmental Immunity Act does not actually contemplate the filing of a notice of claim after one's complaint has already been served upon the governmental entity, as happened here. See Utah Code Ann. § 63-30-13 (1997). Instead, it contemplates filing the notice of claim in advance of litigation, thus affording " 'the responsible public authorities an opportunity to pursue a proper and timely investigation of the merits of a claim and to arrive at a timely settlement, if appropriate, thereby avoiding the expenditure of public revenue for costly and unnecessary litigation.'" Brittain v. State, 882 P.2d 666, 671 (Utah Ct.App.1994) (quoting Stahl v. Utah Transit Auth., 618 P.2d 480, 482 (Utah 1980)). However, on appeal, West Jordan does not contend that where a notice of claim has been filed within the one-year time period allowed, filing of a complaint prior to the filing of a notice of claim is a bar to the action. Bank One points to Johnson v. Utah State Retirement Office, 621 P.2d 1234 (Utah 1980), in support of its contention that despite the valuable purposes served by filing a notice of claim before a complaint is served, failure to do so is not fatal to a claim so long as the proper notice is filed within the one-year period. See id. at 1236.


text:
    2002 UT App 273
    STATE of Utah, Plaintiff and Appellee, v. Martin QUINONEZ-GAITON, Defendant and Appellant.
    No. 20010194-CA.
    Court of Appeals of Utah.
    Aug. 15, 2002.

      Karen Stam and Catherine E. Lilly, Salt Lake Legal Defender Association, for Appellant.
    Mark L. Shurtleff, Attorney General, and Kenneth A. Bronston, Assistant Attorney General, for Appellee.
    Before Judges BILLINGS, GREENWOOD, and ORME.
   OPINION

ORME, Judge:

T1 Defendant Martin Quinonez-Gaiton challenges his convictions on four counts of sodomy on a child, first degree felonies in violation of Utah Code Ann. § 76-5-408.1 (1999). Defendant argues that by prohibiting his lawyer's questioning of the victim about a sexual act the victim engaged in with another child and by denying his request for a hearing to explore the admissibility of such evidence, the trial court violated his constitutional right to confront the witnesses against him. In addition, Defendant assails the trial court's admission of hearsay testimony under Utah Code Aun. § 76-5411 (1999) and argues that reversal is warranted under the cumulative error doctrine. We reject these contentions and affirm the convictions.

BACKGROUND

T2 In late January 2000, nine-year-old AA. was visiting at his father's home. According to preliminary hearing testimony, at some point in the day, A.A.'s stepmother discovered A.A. engaged in an oral sex act with her son and aggressively questioned A.A. about where he had learned such behavior, repeatedly "yelling" at him, "Who did this to you?" A.A. told his stepmother that Defendant, who had lived with A.A., his mother, and his brothers for approximately five years, had forced him to engage in similar sexual acts.

13 An arrangement was made for A.A. to be interviewed on January 31, 2000, by a detective at the local Children's Justice Center. On February 4, 2000, A.A. was interviewed and examined at Primary Children's Medical Center by a family nurse practitioner with the hospital's child protection team. A few weeks later, Defendant was charged with four counts of sodomy on a child.

T4 Both A.A. and his mother testified at the preliminary hearing. A.A. described the sexual abuse perpetrated by Defendant. On cross-examination, defense counsel asked AA. what he was doing that led his stepmother to question him about his being abused. AA. acknowledged that he had been "doing something [he] shouldn't have been doing," but he would not say what that was. After a brief recess, the prosecutor explained that A.A. was "really falling apart" at being asked to discuss the inappropriate sexual contact he had with his stepbrother and stated, "he needs to get it over with." When asked again what precipitated his initial disclosure to his stepmother, A.A. finally explained that she caught him "sucking on [his] brother's [penis]."

15 Prior to trial, A.A.'s guardian ad litem filed a notice of intent to invoke, on behalf of her client, rule 412 of the Utah Rules of Evidence. Defendant responded with a motion requesting a hearing under rule 412 to determine the admissibility of evidence of A.A.'s inappropriate sexual contact with his stepbrother. The State countered with motions to deny the request for a rule 412 hearing and to exclude, under rule 412, evidence of the victim's sexual behavior, other than as a victim of abuse. While the State conceded that Defendant was entitled to have the jury know that A.A. was under considerable stress when he identified Defendant as his abuser, it argued that evidence of A.A.'s sexual conduct with his stepbrother did not fall under any of the three exceptions to rule 412, which generally prohibits admission of evidence concerning a victim's sexual conduct other than the charged abuse.

16 The trial court agreed with the State. As a result, the court denied Defendant's motions and directed defense counsel to restrict any questions addressing the cireum-stances of A.A.'s disclosure that Defendant had sexually abused him to matters other than the sexual conduct itself between A.A. and his stepbrother. Defendant renewed his motion for a rule 412 hearing, but the court denied that motion as well.

T7 One week prior to trial, the State filed a notice of intent to rely on Utah Code Ann. § 76-5-411 (1999) to introduce hearsay statements made by AA. during his interview with the detective at the Children's Justice Center. The statements would be read verbatim from a transcript of a video of the interview. Defendant objected to admission of the hearsay statements, arguing that the "notice is untimely since there has been no prior hearing as required by [section 76-5-411] focusing on the trustworthiness and reliability of such out-of-court statements." After reviewing the video of the interview and hearing argument from the parties, the trial court allowed the State to introduce the hearsay evidence, concluding that the "[nJotice given by the State was minimally sufficient" and that "[the statements made by A.A. to [the detective] during the Children's Justice Center interview were credible."

T8 At his trial in December 2000, Defendant was convicted on four counts of sodomy upon a child. He now appeals.

ISSUES AND STANDARDS OF REVIEW

19 Defendant argues that the trial court violated his Confrontation Clause rights when it excluded evidence of A.A.'s sexual activity involving his stepbrother and denied his request for an evidentiary hearing on that issue. Defendant also argues that the trial court committed error by allowing the detective to testify, under Utah Code Ann. § 76-5-411 (1999), about what A.A. told her during the interview at the Children's Justice Center.

Because the admission of evidence ... is a question "of law, it is reviewed for correctness. However, the trial court's subsidiary factual determinations should be given deference by the appellate court and only be overruled when they are clearly erroneous." State v. Taylor, 818 P.2d 561, 568 (Utah Ct.App.1991) (citation omitted); see also State v. Thurman, 846 P.2d 1256, 1270 n. 11 (Utah 1993) (recognizing bifurcated standard when appeals court reviews underlying factual findings). When reviewing a trial court's balancing of the proba-tiveness of a piece of evidence against its potential for unfair prejudice ..., we reverse only if the court's decision as a matter of law "was beyond the limits of rea-sonability." State v. Hamilton, 827 P.2d 232, 240 (Utah 1992).

State v. O'Neil, 848 P.2d 694, 698-99 (Utah Ct.App.), cert. denied, 859 P.2d 585 (Utah 1993).

110 Rule 412 of the Utah Rules of Evidence governs when a hearing must be held to determine whether evidence of a vie-tim's sexual history should be admitted. We review the trial court's interpretation of that rule for correctness, according no particular deference to the trial court. See State v. Barrick, 46 P.3d 770, 2002 UT App 120, ¶ 4, 445 Utah Adv. Rep. 28.

RULE 412 HEARING

Defendant contends that under rule 412 of the Utah Rules of Evidence, the trial court was required to hold an evidentia-ry hearing before determining that evidence of AA's sexual history was inadmissible. "We interpret a rule by examining the rule's plain language and resort[ ] to other methods only if the language is ambiguous." N.A.R., Inc. v. Forr, 2000 UT App 62, ¶ 5, 997 P.2d 343 (alterations in original;, internal quotation marks and citations omitted). Rule 412 provides:

(a) Evidence generally inadmissible. The following evidence is not admissible in any criminal proceeding involving alleged sexual misconduct except as provided in paragraphs (b) and (c):
(1) evidence offered to prove that any alleged victim engaged in other sexual behavior; and
(2) evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions. The following evidence is admissible, if otherwise admissible under these rules:
(1) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of the semen, injury, or other physical evidence;
(2) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered:
(A) by the accused to prove consent; or
(B) by the prosecution; and
(3) evidence the exclusion of which would violate the constitutional rights of the defendant.
(c) Procedure to determine admissibility.
(2) Before admitting evidence under this rule, the court must conduct a hearing in camera and afford the alleged victim and parties a right to attend and be heard. The motion, related papers, and record of the hearing must be sealed and reniain under seal unless the court orders otherwise.

Utah R. Evid. 412 (emphasis added).

112 The plain language of this rule indicates that a trial court is required to hold a hearing only if it intends to admit evidence of the victim's prior sexual conduct. Such a hearing provides the victim with a final opportunity to be heard prior to having his or her sexual history discussed in open court. But where the court determines that it will not admit such evidence-and the thrust of the rule is that all such evidence will ordinarily be exeluded-the requirement that a hearing be held is simply not triggered. A hearing is contemplated only if the court sees the applicability of one of the limited exceptions and intends to admit such evidence.

113 The trial court in this case chose to exclude evidence of A.A.'s sexual history. It appropriately recognized, therefore, that the requested hearing, evidentiary or otherwise, was not required.

ADMISSIBILITY OF EVIDENCE OF VICTIM'S PRIOR SEXUAL CONDUCT

1 14 Defendant next contends that the trial court violated his right to confront the witnesses against him when it excluded evidence of A.A.'s sexual encounter with his stepbrother under rule 412. Utah courts have long recognized that "evidence of an alleged [sexual abuse] victim's past sexual activities with someone other than the accused 'carriies]) a presumption of unfair[ness]' due to its 'unusual propensity to unfairly prejudice, inflame, or mislead the jury," and thus, 'distort the deliberative process and skew the trial's outcome."" State v. Martin, 2002 UT 34, ¶ 40, 44 P.3d 805 (quoting State v. Dibello, 780 P.2d 1221, 1229 (Utah 1989)). See State v. Moton, 749 P.2d 639, 643-44 (Utah 1988). Rule 412 mandates that such evidence should be admitted only for specifically authorized, narrowly focused purposes.

115 In Moton, the Utah Supreme Court affirmed a trial court's decision to exclude evidence of a child victim's prior sexual activities where alternative methods of establishing that the victim "had the knowledge required to fabricate an accusation against the defendant" existed and where the trial court allowed the defendant to pose "questions relevant to the victim's sexual knowledge, her past lies ... and possible motives for lying." Moton, 749 P.2d at 644.

The case at bar presents similar cireumstances. Prior to trial, the State conceded that Defendant should be granted some latitude in posing questions directed at establishing that A.A. initially identified Defendant as his abuser when in trouble with his stepmother. The prosecutor explained that defense counsel "can say, when did you first talk about this? I told my step-mother. My step-mother asked me who had performed oral sex on me. She demanded to know, and I answered that it was Martin. That line of questioning can come in without asking what behavior he was engaging in." The trial court also indicated that Defendant was entitled to use "other ways" to question the reliability of A.A.'s Initial disclosure.

117 Where the exclusion of evidence of a victim's sexual history does not preclude the defendant from effectively challenging the credibility of the victim, and where the defendant is provided a reasonable opportunity to adequately explore, by alternative methods, the substance of his complaints regarding the veracity of the victim's allegations, any need to disclose the victim's prior sexual conduct is substantially diminished and a trial court should ordinarily exclude it. See id.; Martin, 44 P.3d 805, 2002 UT 34 at ¶ 42 (acknowledging that it is within trial court's discretion to "carefully direct[] the seope of questioning away from such inad-misgible information or [to] issu[e] a limiting instruction to ensure that evidence prohibited by rule 412 is not considered by the jury").

118 It was not necessary to expose the fact that A.A. engaged in a sexual act with his stepbrother to effectively challenge the credibility of the accusations he made against Defendant. In fact, revealing that A.A. engaged in a sexual act with his stepbrother sheds little or no light, by itself, on why A.A. would be motivated to accuse Defendant, of all the people in the world, of sexually abusing him. In contrast, the perceived need to blurt out a name in the hope of terminating parental browbeating sheds such light, wholly aside from exactly what prompted the browbeating. Had the trial court denied Defendant an opportunity to show that, at the time of his disclosure, A.A.'s stepmother was upset with him and was demanding that he tell her who engaged in sexual acts with him, it would have handicapped his defense and effectively denied Defendant a fair opportunity to confront A.A. However, the trial court preserved the option of challenging AAs credibility in ways short of disclosing that he had engaged in a sexual act. The prosecution even provided examples of how that could appropriately be done. Under these cireumstances, we cannot say the trial court erred in determining that Defendant's right to confront the witnesses against him was not violated by the court's prohibiting disclosure to the jury of the victim's sexual encounter with his stepbrother.

ADMISSION OF HEARSAY EVIDENCE

{19 Utah Code Ann. § 76-5411 (1999) creates a statutory exception to the hearsay rules. It permits the admission of hearsay statements in child sex abuse cases under limited cireumstances. Defendant argues that the State failed to comply with the statute by not providing adequate notice of its intent to have the detective testify about what AA. said during the interview at the Children's Justice Center,. In addition, Defendant contends that the out-of-court statements were inadmissible because they did not bear the indicia of reliability required by Utah Code Ann. § 76-5-411(2) (1999). The statute provides, in relevant part, as follows:

(1) Notwithstanding any rule of evidence, a child victim's out-of-court statement regarding sexual abuse of that child is admissible as evidence although it does not qualify under an existing hearsay exception, if:
(a) the child is available to testify in court or under Rule 15.5(2) or (8), Utah Rules of Criminal Procedure;
(2) Prior to admission of any statement into evidence under this section, the judge shall determine whether the interest of justice will best be served by admission of that statement. In making this determination the judge shall consider the age and maturity of the child, the nature and duration of the abuse, the relationship of the child to the offender, and the reliability of the assertion and of the child.
(3) A statement admitted under this seetion shall be made available to the adverse party sufficiently in advance of the trial or proceeding, to provide him with an opportunity to prepare to meet it.

Utah Code Ann. § 76-5-411 (1999) (emphasis added).

Notice

120 The plain language of subsection 76-5-411(8) does not define a specific time within which the prosecution must notify a defendant of its intent to rely on such hearsay. In electing not to define a specific timeframe, the Legislature necessarily vested trial courts with the discretion to determine, on a case-by-case basis, what constitutes sufficient notice under all the cireumstances. Thus, subsection (8) of the statute requires only that the statement be made available to the adverse party "sufficiently in advance of the trial or proceeding, to provide him with an opportunity to prepare to meet it." Utah Code Ann. § 76-5-411(8) (1999).

121 In this case, the hearsay permitted by the court came from the transeript of AA's interview at the Children's Justice Center. Although Defendant was notified of the State's intent to rely on this hearsay evidence only one week before trial, Defendant's attorney had been given a copy of the transcript six months before. Furthermore, the hearsay testimony was almost identical to the live testimony provided by A.A. at both the preliminary hearing and trial. Defense counsel was, therefore, clearly familiar with the testimony, and, on the record before us, it does not appear that Defendant was in any way prejudiced by its admission.

Reliability

1 22 Defendant also argues that the hearsay evidence admitted was "riddled with indications of unreliability" and, therefore, "[the trial court ... erred in determining that the hearsay testimony was admissible under [section] 76-5-411." We are not persuaded.

123 Subsection 76-5-411(2) mandates that a trial court "determine whether the interest of justice will best be served by admission of the statements." Julian v. State, 966 P.2d 249, 255 (Utah 1998). To comply with the statute, a trial court must "consider the age and maturity of the child, the nature and duration of the abuse, the relationship of the child to the offender, and the reliability of the assertion and of the child." Utah Code Ann. § 76-5-411(2) (1999). Accord Julian, 966 P.2d at 255. In addition, courts evaluating the reliability of a child's out-of-court statement should consider factors such as

"how soon after the event it was given, whether the statement was spontaneous, the questions asked to elicit it, the number of times the statement was repeated or rehearsed, and whether the statement is reproduced verbatim in court, viz., tape recording, video tape, or otherwise."

State v. Matsamas, 808 P.2d 1048, 1051 (Utah 1991) (quoting State v. Nelson, 725 P.2d 1353, 1356 n. 3 (Utah 1986)). A trial court is then required to " 'enter findings and conclusions regarding each of the factors listed in the statute to explain its reasons for admitting or excluding the testimony." " Id. (citation and emphasis omitted).

124 In Maisamas, the Utah Supreme Court explained that a trial court's failure to consider these factors is reviewed for "clear error." Id. at 1052. However, a trial court's decision to admit or exclude the testimony following careful consideration of the factors outlined in subsection 76-5-411(2) is necessarily a product of the court's disceretion, reviewed under the abuse of discretion standard. See State v. Whittle, 1999 UT 96,¶ 20, 989 P.2d 52 (explaining that when a trial court is balancing factors in determining the admissibility of evidence, the "trial court has broad discretion to admit or exclude evidence and its determination typically will only be disturbed if it constitutes an abuse of discretion").

125 The trial court in this case considered the required factors, especially those relating to reliability. The court then explained in open court why it reached the conclusions it did regarding each factor. Despite having acknowledged that problems existed with some of A.A.'s testimony, including inconsistent statements by A.A. regarding the frequency of the sexual abuse, the court ultimately concluded that the testimony was sufficiently reliable and that "justice [would] best be served by admitting the statements." Where there is substantial evidence supporting the trial court's findings with respect to factors weighing in favor of admission, we will not second guess a trial court's informed decision that the evidence should be admitted. See id.

CONCLUSION

126 Having determined that it would not admit evidence revealing that AA. was caught engaging in sexual activity with his stepbrother, the trial court was not required to conduct a hearing as contemplated in rule 412 of the Utah Rules of Evidence. Nor did the trial court err by excluding evidence of the victim's prior sexual conduct under rule 412. This is especially true given that Defendant was free to challenge A.A.'s accusations by posing questions that probed AA's credibility without disclosing that A.A. had committed a sexual act with another child. Furthermore, Defendant was provided adequate notice to prepare for the hearsay testimony offered by the State through the detective. Finally, the trial court, having considered and weighed the relevant factors, did not abuse its discretion in admitting the detective's testimony.

[27 Affirmed.

1 28 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and PAMELA T. GREENWOOD, Judge.

      . With this reality in mind, Defendant's purpose in having AA's naughty deed disclosed to the jury may surely be questioned. The avoidance of letting a jury know, more or less gratuitously, that a victim of a sex offense is himself "no angel" is the very reason for rule 412. Such a distraction should play no role in the consideration of whether a defendant was guilty of a particular sex crime on a particular occasion.

      . We recognize that other courts have reached seemingly inconsistent conclusions. See, eg., State v. Jalo, 27 Or.App. 845, 557 P.2d 1359 (1976). The facts of Jalo, however, do not appear to present a circumstance where the prosecution and court recognized that the defendant should be allowed, by posing questions that challenged the victim's credibility without revealing the victim's sexual history, to explore the alleged victim's motive to falsely accuse the defendant.

      . The implications, if any, of Article VIII, section 4, have not been raised and are not before us. See Utah Const. art. VIII, § 4 ("'The Supreme Court shall adopt rules of ... evidence to be used in the courts of the state. . .. The Legislature may amend the Rules of ... Evidence ... upon a vote of two-thirds of all members of both houses of the Legislature.").

      . For example, the trial court explained that A.A. "seemed to be reasonably adept at following directions and relaying experiences," that "[A.A.] seemed to be reasonably mature," that A.A. consistently testified that abuse had occurred and that it occurred "when he was seven years old," that Defendant lived with A.A. and his mother during the time in question, and that no evidence suggested A.A. had rehearsed his testimony.

      . As we have rejected each of Defendant's individual assignments of error, it follows that his cumulative error argument is unavailing.