author: BILLINGS, Associate Presiding Judge:

text:
    2003 UT App 154
    STATE of Utah, in the interest of R.H. and C.H., persons under eighteen years of age. D.H., Appellant, v. State of Utah, Appellee.
    No. 20020691-CA.
    Court of Appeals of Utah.
    May 22, 2003.

      Justin Gary Jensen, Draper, for Appellant.
    Mark L. Shurtleff, Attorney Generals Office, and Carol L. Verdoia, Assistant Attorney General, Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, Guardian Ad Litem.
    Before Judges BILLINGS, BENCH, and GREENWOOD.
   OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 D.H. appeals the decision of the Third District Juvenile Court terminating his parental rights to his two children. We affirm.

BACKGROUND

¶2 D.H. is the natural father of eleven-year-old R.H. and nine-year-old C.H. (the children). On January 15, 1998, the Division of Child and Family Services (DCFS) received a referral alleging physical abuse and physical neglect of the children by N.H., their natural mother (the mother). At the time, D.H. was incarcerated. DCFS subsequently removed the children from their home in January 1998.

¶ 3 On February 27, 1998, the State of Utah filed a Verified Petition with the juvenile court seeking protective supervision of the children alleging they were abused and/or neglected. On August 26, 1998, the juvenile court found D.H. was unable to care for the children, as he was incarcerated, and found the children were neglected pursuant to Utah Code Ann. § 78-3a-103 (1998). The juvenile court ordered DCFS to maintain protective supervision services over the children until such time as the mother submitted to psychological evaluation and both parents submitted to drug and alcohol assessments. The children were eventually returned to their parents in June 1999, following the juvenile court’s Order for Termination of Jurisdiction and Services.

¶ 4 Less than three months later, in September 1999, the children were returned to the custody of DCFS, as the mother was apparently homeless and D.H. had returned to jail. Later that month, the State filed a Second Verified Petition renewing allegations of neglect, again praying the juvenile court would award temporary custody and guardianship of the children to DCFS. On February 15, 2000, the juvenile court partially adjudicated the Second Verified Petition. The juvenile court continued the matter until March 13, 2000, when it ordered that the children remain in the custody of DCFS, that DCFS provide a Reunification Service Plan, and that the Assistant Attorney General be allowed to file a supplemental petition. On December 27, 2000, the State filed a Verified Petition praying the juvenile court permanently terminate the parental rights of both the mother and D.H.

¶ 5 On September 8, 1999, the court appointed the firm of Laherty and Associates to represent D.H. Between that time and July 1, 2002, Mr. Laherty appeared on behalf of D.H. on nine occasions. During the same period, three of Mr. Laherty’s associates represented D.H. on five other occasions. D.H. did not object to the effectiveness of his counsel during this period, save for one occasion.

¶ 6 On February 6, 2002, Mr. Laherty failed to appear at a pre-trial hearing. The juvenile court noted Mr. Laherty’s absence, and D.H. indicated he was considering requesting new counsel as he felt Mr. Laherty was too difficult to reach. The juvenile court ordered D.H. to notify the court within thirty days if he intended to discharge Mr. Laherty as counsel. D.H. never filed a notice of discharge, and Mr. Laherty appeared on behalf of D.H. in later proceedings.

¶ 7 Trial was held on the Petition for Termination of Parental Rights on July 1, 2002. D.H. was again incarcerated at the time of trial. An associate from Mr. Laherty’s office, Mr. Pietryga, represented D.H. at the proceeding. At the commencement of the trial, D.H. expressed his desire to have new counsel appointed, and through counsel motioned accordingly:

D.H.: Your Honor, I’d like to relinquish counsel at this time. I want to be appointed new counsel.
THE COURT: You’ve got appointed counsel. There is no reason for-
D.H.: Mr. Laherty isn’t here to represent me. He’s been here, isn’t this four times now, and now I don’t even know who this person is. He hasn’t seen the case and now he’s representing me in the trial case?
THE COURT: Well, Mr. Pietryga is perfectly qualified to represent you. He’s an associate of Mr. Laherty. I don’t see any reason that he can’t — he can’t represent you in this matter.
MR. PIETRYGA: And, Judge, I apologize for that. He actually had two motions. He wanted one to continue to confer with counsel again, and his next motion was to have new counsel appointed to him.
THE COURT: We’ve continued this matter, literally, for years at this point and I’m not going to continue. And, frankly, Mr. H., I don’t see any reason that Mr. Pietryga can’t represent your interest just fine here. So those motions will be denied.

¶ 8 At the conclusion of the trial, the'juvenile court permanently terminated D.H.’s parental rights to the children, pursuant to Utah Code Ann. §§ 78-3a-407(2), (4), (5), and (8) (Supp.2000). D.H. now appeals the juvenile court’s order terminating his parental rights.

ISSUES AND STANDARDS OF REVIEW

¶ 9 D.H. asserts the juvenile court abused its discretion when it failed to inquire into his complaints regarding his court-appointed counsel before denying him substitute counsel. “Whether to appoint a different lawyer for an indigent defendant who expresses dissatisfaction with his court-appointed counsel ... is a matter committed to the sound discretion of the trial court and will be reversed only for an abuse of discretion.” State v. Pursifell, 746 P.2d 270, 272 (Utah Ct.App.1987).

¶ 10 Next, D.H. argues the juvenile court failed to make findings required by the amended version of Utah Code Ann. § 78-3a-407 (Termination Statute), effective May 6, 2002, in its order terminating D.H.’s parental rights. “The juvenile court's decision concerning which version of the [T]er-mination [Sjtatute applied is a matter of statutory interpretation, which presents a question[] of law which we review for correctness, according no particular deference to the [juvenile] court’s interpretation.” In re S.Y., 2003 UT App 66,¶ 10, 66 P.3d 601 (third and fourth alterations in original) (quotations and citations omitted). “However, where a party ... fails to bring an issue to the [juvenile] court’s attention, that party is barred from asserting it on appeal absent a showing of exceptional circumstances or plain error.” Id. (alteration in original) (quotations and citation omitted).

ANALYSIS

I. Juvenile Court’s Duty to Inquire

¶ 11 D.H. argues the juvenile court abused its discretion by not inquiring into his complaints regarding his court-appointed counsel before denying his motion for substitute counsel. The right to counsel in parental termination proceedings is granted pursuant to Utah Code Ann. § 78-3a-913(l)(a) (Supp.2001). The statute mandates that in juvenile proceedings “[t]he parents, guardian, custodian, and the minor, if competent, shall be informed that they have the right to be represented by counsel at every stage of the proceedings_ [I]f any of them requests an attorney and is found by the court to be indigent, counsel shall be appointed by the court.” Id. Interpreting section 78-3a-913(l)(a), this court has held, “[Ijndigent parents facing the permanent deprivation of their parental rights are entitled not only to an appointed attorney, but to the effective assistance of counsel.” In re C.C., 2002 UT App 149,¶ 7, 48 P.3d 244; see In re E.H., 880 P.2d 11, 13 (Utah Ct.App.1994). “An integral part of the right to the effective assistance of counsel is the opportunity to have substitute counsel appointed when necessary and, to that end, to have the court explore a party’s complaints regarding the assistance his or her attorney has provided to determine if substitute counsel is indeed necessary.” In re C.C., 2002 UT App 149 at ¶ 9, 48 P.3d 244. “In failing to fully investigate a parent’s expressed discontent, a court risks denying that parent his or her right to adequate representation.” Id. Accordingly, “for the statutorily-provided right to counsel in termination proceedings to be meaningful, juvenile courts ... must explore whether there is any validity to an indigent parent’s expressed complaints and determine whether the parent’s relationship with his or her appointed attorney has deteriorated to the point that sound discretion requires substitution.” Id. at ¶ 10 (quotations and citation omitted). Moreover, “[t]his [inquiry] must be done even when the [juvenile court] judge suspects that the [party]’s requests are disingenuous and designed solely to manipulate the judicial process and delay the trial.” Id. (quotations and citations omitted).

¶ 12 We conclude the juvenile court in this case did not satisfy its duty to inquire. The record indicates D.H. complained that Mr. Laherty was not present to represent him, that he had not previously met Mr. Pietryga, and that Mr. Pietryga was not familiar with the case. Without any inquiry, the juvenile court denied D.H.’s motion for substitution of counsel, asserting Mr. Pietry-ga was well-qualified and capable of representing D.H.’s interests. The State insists no further inquiry was necessary as D.H.’s complaints and request for substitute counsel rested solely on his desire for Mr. Laherty to personally represent him at trial.

¶ 13 As previously mentioned, an indigent defendant in a termination of parental rights case enjoys a statutory entitlement to effective court-appointed counsel. However, this statutory protection does not afford the defendant the right to choose which specific attorney will represent him. See State v. Bakalov, 1999 UT 45,¶¶ 19-20, 979 P.2d 799; State v. Pursifell, 746 P.2d 270, 272 (Utah Ct.App.1987). If the record clearly indicated the only basis for D.H.’s request for substitute counsel was his desire for Mr. Laherty’s personal representation, the juvenile court would have had no duty to provide substitute counsel, or to inquire further into the matter. However, the record indicates otherwise.

¶ 14 At the beginning of trial, D.H. complained: “Your Honor, I’d like to relinquish counsel at this time. I want to be appointed new counsel.” “Mr. Laherty isn’t here to represent me. He’s been here, isn’t this four times now, and now I don’t even know who this person [ (Mr. Pietryga) ] is. He hasn’t seen the ease and now he’s representing me in the trial case?” Although one possible interpretation of this objection is that D.H. would accept only Mr. Laherty as his attorney, the other possibility is that D.H. did not want Mr. Pietryga to represent him because he felt he was unprepared and thus could not render effective representation at trial. Therefore, the juvenile court had a duty to “ ‘make some reasonable, non-suggestive efforts’” to determine whether Mr. Pietryga was prepared to represent D.H. at trial. In re C.C., 2002 UT App 149 at ¶ 6, 48 P.3d 244 (emphasis added) (quoting Pursifell, 746 P.2d at 273). The juvenile court’s failure to do so was “per se error.” Id. at ¶ 13 (quotations and citation omitted).

¶ 15 However, after a close examination of the record, we conclude the juvenile court’s failure to inquire was harmless error. Under State v. Valencia, 2001 UT App 159, 27 P.3d 573, a court’s error in failing to adequately inquire into a defendant’s dissatisfaction with counsel may be deemed harmless, provided that the record contains sufficient information to make that determination. See id. at ¶¶ 13-18. Here, the record sufficiently supports the conclusion that Mr. Piet-ryga was well prepared and adequately represented D.H.’s interests.

¶ 16 Mr. Pietryga actively participated at trial. He cross-examined the State’s witnesses, and he called D.H. to testify on his own behalf. With Mr. Pietryga’s assistance, D.H. was able to offer testimony that he was scheduled to be released from jail two months after trial and that he had lined up a job and an apartment. D.H. further testified as to why he was unable to complete the services offered by DCFS. On redirect, Mr. Pietryga asked questions that allowed D.H. to clarify facts relating to his incarceration and employment, and why he had not contacted his children for eighteen months. Mr. Pietryga assisted D.H. in explaining why the mother had relinquished her rights to the children — a fact brought out by the State on its cross-examination. In closing argument, Mr. Pietryga urged that DCFS had failed to follow through on service plan promises, that the mother’s relinquishment should not be taken into consideration, and that there was a total absence of testimony that contact with D.H. would be detrimental to the children.

¶ 17 The record on appeal clearly establishes that good cause did not exist for substitute counsel. Thus, the juvenile court’s error in failing to adequately inquire into D.H.’s dissatisfaction with counsel was harmless. See id. at ¶ 14; Pursifell, 746 P.2d at 273-74. We therefore affirm on this issue.

II. Retroactive Application of the Amended Termination Statute

¶ 18 D.H. next argues the juvenile court erred in terminating his parental rights without making findings as required by the amended version of the Termination Statute, effective May 6, 2002.

The [Tjermination [Sjtatute provides the grounds upon which juvenile courts may terminate parental rights.... In relevant part, the amended [termination [S]tatute added the following provision: “In any case in which the [juvenile] court has directed [DCFS] to provide reunification services to a parent, the court must find that [DCFS] made reasonable efforts to provide those services before the court may terminate the parent’s [parental] rights....”

In re S.Y., 2003 UT App 66,¶ 12, 66 P.3d 601 (alterations in original) (quoting Utah Code Ann. § 78-3a-407(3)(a) (2002)).

¶ 19 In an order signed March 27, 2000, the juvenile court directed DCFS to provide reunification services to D.H. with respect to the children through a formal service plan. Because the final order terminating D.H.’s parental rights was not issued until July 31, 2002, D.H. argues the amended Termination Statute applies, and that the juvenile court erred by failing to find that DCFS made reasonable efforts in its reunification services prior to terminating D.H.’s parental rights.

¶ 20 “However, [D.H.] did not make this argument to the juvenile court.” Id. at ¶ 14. As D.H. raises this argument for the first time on appeal, he “can only obtain relief from this court by demonstrating plain error by the juvenile court or exceptional circumstances.” Id. “On appeal, [D.H.] does not argue plain error or exceptional circumstances, and we therefore decline to address [D.H.’s] claim.” Id.

CONCLUSION

¶ 21 We conclude the juvenile court erred in not inquiring into D.H.’s complaints and request for new counsel. However, this error was harmless. D.H.’s argument for retroactive application of the Termination Statute also fails, as D.H. failed to preserve the issue for appeal. Therefore, we affirm the juvenile court’s order terminating D.H.’s parental rights.

¶ 22 WE CONCUR: RUSSELL W. BENCH and PAMELA T. GREENWOOD, Judges.

      . N.H. voluntarily agreed to terminate her parental rights and does not appeal.


source: Caselaw Access Project

license: Public Domain

text:
    2003 UT App 153
    UTAH COUNTY, Petitioner and Appellee, v. George S. ALEXANDERSON and Charles H. Martin, Respondents and Appellants.
    No. 20020143-CA.
    Court of Appeals of Utah.
    May 22, 2003.
    Tawni J. Sherman and Todd M. Shaugh-nessy, Snell & Wilmer, Salt Lake City, for Appellants.
    M. Cort Griffin, Utah County Attorney Office, Provo, for Appellee.
    Before Judges JACKSON, BILLINGS, and DAVIS.
   OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 Deputies George S. Alexanderson and Charles H. Martin (the deputies) appeal the trial court’s order granting Utah County’s petition for an extraordinary writ under rule 65B of the Utah Rules of Civil Procedure. The trial court found the deputies’ employment grievance untimely and reversed the Utah County Career Service Council’s (the Council) decision favoring the deputies. We reverse.

BACKGROUND

¶ 2 In 1991, the deputies were employed by the Utah County Sheriffs Department (the Department) as shift supervisors in the Utah County Jail. After a reclassification study, the Department eliminated all shift supervisor positions and opened four new sergeant positions, with a higher rank and pay than shift supervisor. Before filling the new sergeant positions, the Department moved the deputies and other shift supervisors to the lower rank of corrections specialist, with no reduction in pay. Because the duties of sergeant were similar to those of shift supervisor, and based on representations made to them by management, the deputies believed they would be promoted to sergeant. Both deputies requested to be considered for the sergeant positions. In December 1991, the Department made its hiring decisions, and neither deputy was promoted.

¶ 3 Although the deputies were qualified for the sergeant position, some of those who were promoted to sergeant, as the Council later found, did not meet minimum qualification requirements. The deputies suspected that several of those promoted were not qualified, but the deputies claim they did not have access to sufficient eligibility lists and did not at that time investigate further or pursue formal grievances.

¶ 4 Between 1992 and 1996, both deputies continued to express interest in obtaining sergeant positions and participated in testing and other evaluation procedures. In December 1996, the deputies learned from a sergeant that a lieutenant in the Department wanted him to manipulate the testing results involving a separate position within the Department. After the deputies met with Sheriff Bateman to discuss their concerns regarding promotions and evidence of corruption within the Department, the sheriff sent a letter to Deputy Martin dated December 17, 1996. In that letter, Sheriff Bateman stated, for the first time, that shift supervisors were not automatically promoted to sergeant because the position of shift supervisor “was never a ranked position.” In fact, shift supervisor was a ranked position, and the deputies thus discovered they had possibly not been considered as ranked officers when applying for promotion to sergeant.

¶ 5 The deputies filed a grievance with the Council on January 10, 1997, challenging the sheriffs promotion procedures and continued failure to promote them to the rank of sergeant. The Council consists of three members appointed by Utah County’s (the County) legislative body, see Utah Code Ann. § 17-33-4(l)(a)(I) (2001), charged with hearing employment grievances filed by county career service employees. See id. § 17 — 33—4(l)(b). The County contended the grievance violated timeliness requirements from the Utah County Office of Personnel Management Rules and Regulations, which require written notice of a grievance “within three months from the date of occurrence.” After hearing evidence, on June 30, 1997, the Council concluded the grievance petition was timely and ruled substantively in favor of the deputies, finding that “promotions [were] based on arbitrary criteria,” with “inconsistent, biased and capricious” testing procedures. The Council concluded that the deputies’ “discussion with Sheriff Bateman in December, 1996 was the date that should drive the time for filing.” Because the deputies “filed within 90 days of that date,” the Council reached the substantive issues.

¶ 6 In July 1997, the County petitioned the trial court for an extraordinary writ under rule 65B of the Utah Rules of Civil Procedure, again arguing the deputies’ grievance was untimely. The trial court remanded the case to the Council for the entry of findings of fact and conclusions of law consistent with its June 30, 1997 ruling. The Council never complied with the remand order. Finally, after briefing and oral argument, on September 27, 2001, the trial court found the deputies’ claims untimely as a matter of law. The deputies now appeal that decision.

ISSUE AND STANDARD OF REVIEW

¶ 7 The deputies challenge the trial court’s reversal of the Council’s determination that the deputies’ grievance petition was timely. Because the County brought its trial court petition under rule 65B of the Utah Rules of Civil Procedure, “this court looks at the administrative proceeding as if the petition were brought here directly, even though technically it is the [trial] court’s decision that is being appealed.” Tolman v. Salt Lake County Attorney, 818 P.2d 23, 26 (Utah Ct.App.1991). “We give no deference to the [trial] court’s initial appellate review since it was a review of the record, which this court is just as capable of reviewing as the district court.” Id.

¶ 8 Rule 65B provides, in part, “Where no other plain, speedy and adequate remedy is available,[] a person may petition the court for extraordinary relief_where an ... administrative agency ... has ... abused its discretion.” Utah R. Civ. P. 65B(a), (d)(2)(A). A rule 65B abuse of discretion hinges on whether the Council “misused” or “exceeded” its discretion. Tolman, 818 P.2d at 27 (citations omitted). “However, as noted by both this court and the Utah Supreme Court, ‘abuse of discretion’ for [r]ule 65B(d)(2)(A) writs must be much more blatant than the garden variety ‘abuse of discretion’ featured in routine appellate review.” State v. Stirba, 972 P.2d 918, 922 (Utah Ct.App.1998) (citing Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 683 (Utah 1995)). For example, in Stirba, this court found that a “simple mistake of law does not qualify as the kind of gross and flagrant abuse of discretion necessary for a[r]ule 65B(d)(2)(A) writ to issue.” Id. at 923. Thus, we will reverse the Council’s legal conclusion regarding its timeliness rule only if it is a gross and flagrant abuse of discretion. We review any underlying factual findings under a clearly erroneous standard. See Mule-Hide Prods. Co. v. White, 2002 UT App 1,¶ 11, 40 P.3d 1155.

ANALYSIS

¶ 9 The County argues the Council misapplied its timeliness rule for hearing appeals. Section VII E.l of the Utah County Office of Personnel Management Rules and Regulations provides, “Any career service employee who has completed a ... probationary period ... having a grievance over merit principles may appeal to the Career Service Council. The employee must file a written notice with the personnel director within three months from the date of the occurrence.” Here, the Council concluded that the deputies’ “discussion with Sheriff Bateman in December, 1996 was the date that should drive the time for filing,” and that because the deputies “filed within 90 days of that date,” their petition was timely.

¶ 10 Implicit in this determination is a factual finding that the deputies were not reasonably aware of their grievance until their December 1996 discussion with the sheriff. The deputies first learned in December 1996 that Sheriff Bateman erroneously believed the position of shift supervisor “was never a ranked position.” Prior to December 1996, the deputies did not know, and had no reason to know, of the possibility that they were personally passed over for promotion because of an incorrect assumption regarding their qualifications. Thus, the Council’s implicit factual finding was not clearly erroneous.

¶ 11 Moreover, because the Council had reason to believe the deputies were not reasonably aware of their employment grievance until December 1996, the Council did not grossly and flagrantly abuse its discretion in concluding, as a matter of law, that the grievance’s “date of ... occurrence” was in December 1996. Therefore, the Council’s legal conclusion that the deputies’ grievance was timely was not a gross and flagrant abuse of discretion.

CONCLUSION

¶ 12 We conclude the Council did not grossly and flagrantly abuse its discretion in allowing the deputies’ appeal under its timeliness rule. We therefore reverse the trial court’s ruling.

¶ 13 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JAMES Z. DAVIS, Judge.

      . "We recite the facts in a light most favorable to the decision of the fact finder." In re B.S.V., 2002 UT App 343,¶ 2, 57 P.3d 1127 (quotations and citation omitted). Here, the fact finder was the Council, which ruled in favor of the deputies.

      . In 1997, the county "legislative body” appointed the Council's members. See Utah Code Ann. § 17-33-4 (2001) (amendment notes). The 2001 amendments changed this to an "executive” appointment. See id.

      . All three original Council members were no longer on the Council. Thus, the new Council members were not well-suited to comply with the remand order.

      . The Utah Legislature amended Utah Code Ann. § 17-33-4 in 2001 by adding a procedure for appeals of Council decisions to the trial courts, see id. at § 17 — 33—4( 1)(d) (2001) (amendment notes), but this was not in effect in 1997 when the County first petitioned for an extraordinary writ.

      . The County argues this court’s rule 65B abuse of discretion analysis in State v. Stirba, 972 P.2d 918 (Utah Ct.App.1998), applies only to cases where an appeal is statutorily prohibited. We disagree. In Stirba, this court separately discussed a statutory limit placed on the State’s right to appeal. See id. at 923. Further, we cited Indian Vill. Trading Post, Inc. v. Bench, 929 P.2d 367 (Utah Ct.App.1996) in support of our rule 65B abuse of discretion analysis. See Stirba, 972 P.2d at 923. Bench did not involve a statutory limit of appeal. See 929 P.2d at 370 (discussing use of rule 65B to "compel correction of a public officer's gross abuse of discretion” (emphasis added)).

      . Although lower tribunals should make explicit factual findings, the " 'failure to make factual findings is not reversible error' " where, as here, "the facts in the record are ‘clear, uncontrovert-ed, and capable of supporting only a finding in favor of the judgment.’ ” American Fork City v. Singleton, 2002 UT App 331,¶ 8, 57 P.3d 1124 (quoting Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987)). Here, the County does not dispute that, in December 1996, the deputies first learned of the sheriff's erroneous assumption regarding the status of the shift supervisor position.
      Furthermore, any remand to the Council for factual findings would not be helpful in this case. The trial court unsuccessfully attempted such a remand, and the Council members who sat on this case are no longer available or with the Council.

      . Furthermore, even if the Council technically deviated from its rule, it was still within rule 65B parameters. Cf. Union Pac. R.R. Co. v. Utah State Tax Comm’n, 842 P.2d at 876, 879 (Utah 1992), superceded on other grounds, Utah Code Ann. § 59 — 1—610(l)(b) (Supp.1993) (concluding appellate courts should "uphold reasonable and rational departures " from an agency’s own rules, “absent a showing that the departure violated some other right” (emphasis added)). The Council must be "in sympathy with the application of merit principles" to career service employment, Utah Code Ann. § 17-33-4(l)(a)(i), and the three month timeliness requirement stems from a procedural and internal personnel rule. See Utah Code Ann. § 17-33-10 (2001). Given the deputies' new information and the Council's finding that the Department’s promotions were arbitrary, the Council could have equitably decided to slightly deviate from its timeliness rule.

      .At oral argument, the County urged us to alternatively remand this case to the trial court for findings on the merits. However, in its memorandum decision reversing the Council’s timeliness decision, the trial court clearly upheld the Council's conclusions on the merits, and the County has filed no cross appeal. Specifically, the trial court stated, "[Tjhis court is persuaded that there is sufficient evidence to support [the deputies'] claim that the County deviated from a regular process of promotion based on merit principles. Therefore, the finding of the Council on this issue will not be overturned.”


author: DAVIS, Judge:

text:
    2003 UT App 155
    STATE of Utah, Plaintiff and Appellee, v. Kevin CHUKES, Defendant and Appellant.
    No. 20020376-CA.
    Court of Appeals of Utah.
    May 22, 2003.

      Heather Johnson and John D. O’Connell Jr., Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Kris C. Leonard, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BENCH, DAVIS, and ORME.
   OPINION

DAVIS, Judge:

¶ 1 Defendant Kevin Chukes appeals from convictions of identity fraud, a second degree felony, in violation of Utah Code Ann. §76-6-1102 (Supp.2002); theft by deception, a second degree felony, in violation of Utah Code Ann. § 76-6^05 (1999); and forgery, a third degree felony, in violation of Utah Code Ann. § 76-6-501 (1999). We affirm the identity fraud and theft by deception convictions. We reverse the forgery conviction.

BACKGROUND

¶ 2 In March 2001, Defendant asked a salesman about a bedroom set on display at Crown Bedrooms. The set was priced at nearly $6,000. Defendant told the salesman that he wanted to finance the set. The salesman gave Defendant a blank credit application and watched Defendant complete it. On the application, Defendant listed his name as “Jeffery Mewborn” and'listed Mewborn’s Social Security number, driver license number, and address. Defendant signed “Jeffery Mewborn” on the application and gave it to the salesman. The salesman told Defendant that he would fax the application to a finance company, American General Finance. Defendant then left the store, but called the salesman about thirty minutes later. The salesman told Defendant that the application had been accepted.

¶ 3 Later that afternoon, Defendant returned to Crown Bedrooms. The salesman gave Defendant an installment contract that listed terms for the purchase of the bedroom set. Defendant signed “Jeffery Mewborn” on the contract. He also signed “Jeffery Mewborn” on a receipt for the set. Defendant loaded the set into a moving van and drove away.

¶4 Thereafter, Mewborn discovered that someone had used his personal identifying information to obtain credit from American General Finance and to purchase items in his name. Mewborn contacted American General Finance and the police. Defendant was subsequently arrested and charged with identity fraud, theft by deception, and forgery.

¶ 5 At trial, Mewborn testified that he did not give Defendant his personal identifying information nor permission to use that information. He also testified that the signatures on the credit application, the installment contract, and the receipt were not his.

¶ 6 After all of the evidence was submitted, Defendant moved to dismiss the identity fraud and theft by deception charges. He contended that the charges were based on the same conduct and had the same elements as forgery. Defendant alternatively moved to dismiss the identity fraud and forgery charges. He contended that identity fraud was a lesser included offense of forgery and that forgery was a lesser included offense of theft by deception. The trial court denied Defendant’s motion, concluding that although the evidence and elements overlapped, the offenses had additional elements.

¶ 7 The jury convicted Defendant as charged. Defendant now appeals.

ANALYSIS

¶ 8 Defendant contends that identity fraud is a lesser included offense of theft by deception and that forgery is a lesser included offense of identity fraud. Therefore, Defendant contends that we should reverse the identity fraud and forgery convictions.

¶ 9 “A defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense.” Utah Code Ann. § 76-1-402(3) (1999). “Whether one crime is a lesser included offense of another is a question of law reviewed for correctness.” State v. Betha, 957 P.2d 611, 617-18 (Utah Ct.App.1998). An offense is a lesser included offense when “[i]t is established by proof of the same or less than all the facts required to establish the commission of [another] offense.” Utah Code Ann. § 76-l-402(3)(a).

¶ 10 We apply a two part test to determine whether an offense is a lesser included offense. See State v. Ross, 951 P.2d 236, 241 (Utah Ct.App.1997) (citing State v. Hill, 674 P.2d 96, 97 (Utah 1983)). We first compare the statutory elements of the offenses. See State v. Brooks, 908 P.2d 856, 861 (Utah 1995). “If the two [offenses] are ‘ “such that the greater cannot be committed without necessarily having committed the lesser,” ’ then the lesser offense merges into the greater crime and the State cannot convict and punish the defendant for both offenses.” Ross, 951 P.2d at 241 (citations omitted). “Only if [the first analytical step] does not resolve the [issue] need we proceed to the second analytical step.” Brooks, 908 P.2d at 862. “In most cases, comparison of the statutory elements will suffice to determine whether a greater-lesser relationship exists.” Ross, 951 P.2d at 241. However, where the two crimes have multiple variations, we proceed to the second step and “ ‘consider the evidence to determine whether the greater-lesser relationship exists between the specific variations of the crimes actually proved at trial.’ ” Id. (citation omitted).

I. Is Identity Fraud Included in Theft by Deception?

¶ 11 In relevant part, the identity fraud statute provides:

A person is guilty of identity fraud when that person knowingly or intentionally:
(a) obtains personal identifying information of another person without the authorization of that person; and
(b) uses, or attempts to use, that information with fraudulent intent, including to obtain, or attempt to obtain, credit, goods, services, any other thing of value, or medical information in the name of another person without the consent of that person.

Utah Code Ann. § 76-6-1102(2) (Supp.2002). The theft by deception statute provides:

A person commits theft if he obtains or exercises control over property of another by deception and with a purpose to deprive him thereof.

Utah Code Ann. § 76-6-405(1) (1999).

¶ 12 We conclude that identity fraud has a unique element that precludes it from being a lesser included offense of theft by deception. Identity fraud always requires proof that the defendant obtained personal identifying information without authorization. See Utah Code Ann. § 76-6-1102(2)(a). Theft by deception does not require such proof. See Utah Code Ann. § 76-6-405(1). Because identity fraud requires “proof beyond that needed for proof of the bare elements of [theft by deception],” identity fraud is not a lesser included offense of theft by deception. State v. Brooks, 908 P.2d 856, 862 (Utah 1995).

¶ 13 Defendant does not alternatively contend that theft by deception is a lesser included offense of identity fraud. However, after concluding that an offense is not a lesser included offense as claimed by a defendant, Utah appellate courts have considered whether the defendant has inadvertently reversed the order of the greater and lesser offenses. See State v. Bradley, 752 P.2d 874, 877 n. 1 (Utah 1985) (per curiam); State v. Ross, 951 P.2d 236, 241 n. 6 (Utah Ct.App.1997). Thus, we consider whether theft by deception is a lesser included offense of identity fraud.

¶ 14 Theft by deception requires proof that the defendant (1) obtained or exercised control over the property of another, (2) by deception, and (3) with a purpose to deprive. See Utah Code Ann. § 76-6-405(1). Identity fraud requires proof that the defendant (1) intentionally or knowingly; (2) obtained personal identifying information of another person without that person’s authorization; and (3) used or attempted to use that personal identifying information “with fraudulent intent, including to obtain, or attempt to obtain, credit, goods, ... [or] any other thing of value ... in the name of another person without the consent of that person.” Utah Code Ann. § 76-6-1102(2). Although the identity fraud statute does not define “fraudulent intent,” Black’s Law Dictionary indicates that “fraudulent intent” “exists where one, either with a view of benefit ting oneself, or misleading another into a course of action, makes a representation which one knows to be false or which one does not believe to be true.” Black’s Law Dictionary 662 (6th ed.1990). Identity fraud requires unauthorized use of the identifying personal identifying information “with a view of benefitting oneself or misleading another into a course of action.” Id Identity fraud does not require that the defendant in fact obtained something of value. However, theft by deception requires proof that the defendant in fact obtained or exercised control over the property of another. See Utah Code Ann. § 76-6-405(1).

¶ 15 Because identity fraud does not require as an element that the defendant in fact obtained or exercised control over the property of another, we conclude theft by deception is not a lesser included offense of identity fraud. Accordingly, we conclude that Defendant was properly convicted of identity fraud and theft by deception.

II. Is Forgery Included in Identity Fraud?

¶ 16 The parties agree that a lesser included relationship may exist between variations of forgery and identity fraud. Identity fraud requires proof that the defendant (1) intentionally or knowingly; (2) obtained personal identifying information of another person without that pérson’s authorization; and (3) used or attempted to use that information “with fraudulent intent, including to obtain, or attempt to obtain, credit, goods, ... [or] any other thing of value ... in the name of another person without the consent of that person.” Utah Code Ann. § 76-6-1102(2) (Supp.2002). “ ‘Personal identifying information’ may include” another’s: “(a) name”; “(b) address”; “(c) telephone number”; “(d) driver’s license number”; “(e) Social Security number”; “or (k) any other numbers or information that can be used to access a person’s financial resources.” Id § 76-6-1102(1) (emphasis added).

¶ 17 Forgery requires proof that the defendant (1) “with purpose to defraud anyone, or with knowledge that he is facilitating a fraud to be perpetrated by anyone”; (2) “makes, completes, executes, authenticates, issues, ... or utters any writing so that the writing or the making, completion, execution, authentication, issuance, ... or utterance purports to be the act of another, whether the person is existent or nonexistent.” Utah Code Ann. § 76-6-501(1) (1999).

¶ 18 Depending on the variations proved, forgery could be a lesser included offense of identity fraud. For example, the state might prove that a defendant committed identity fraud by (1) intentionally or knowingly; (2) obtaining personal identifying information — a name or other information — of another -without authorization; and (3) using that information with fraudulent intent by filling out and signing a credit application in the name of another without the other’s consent to obtain credit. In this example, forgery, which is committed when a defendant, with a purpose to defraud, makes or executes a writing purporting to be an existent person, is included in the third element of identity fraud. The elements of forgery that require a defendant to make or execute a writing while purporting to be another existing person and with a purpose to defraud are encompassed in the element of identity fraud that requires use of personal identifying information with fraudulent intent. Consequently, forgery would be a lesser included offense of identity fraud.

¶ 19 Because under some variations, forgery is a lesser included offense of identity fraud, we proceed to step two of the lesser included offense analysis and “ ‘consider the evidence!, arguments, and jury instructions] to determine whether the greater-lesser relationship exists between the specific variations of the crimes actually proved at trial’ ” in this case. State v. Ross, 951 P.2d 236, 241 (Utah Ct.App.1997) (citation omitted). Because Defendant obtained and used Mewborn’s personal identifying information without Mew-born’s authorization under the identity fraud statute, and because Mewborn is an existent person under the forgery statute, the issue here is whether the use of personal identifying information element of identity fraud and the “makes or executes a writing purporting to be another” element of forgery were independently proved. “[D]efendant’s forgery conviction will necessarily [be included] in[ ] his [identity fraud] conviction unless the jury was instructed on and the State proved separate factual bases” for these elements. Id. at 242.

¶ 20 In essence, the State argues that the evidence establishes that the forgery and identity fraud convictions were separate acts. Therefore, the State argues that Defendant was properly convicted of forgery and identity fraud.

A defendant may be prosecuted in a single criminal action for all separate offenses arising out of a single criminal episode; however, when the same act of a defendant under a single criminal episode shall establish offenses which may be punished in different ways under different provisions of this code, the act shall be punishable under only one such provision; an acquittal or conviction and sentence under any such provision bars a prosecution under any other such provision.

Utah Code Ann. § 76-1-^02(1) (1999).

¶ 21 Utah appellate courts have concluded acts are separate if they are not necessary to each other or are sufficiently separated by time and space. See State v. Casey, 2001 UT App 205, ¶ 17, 29 P.3d 25; cf. State v. Wood, 868 P.2d 70, 89-90 (Utah 1993) (noting aggravating circumstance would not be lesser included offense of capital murder if there were “adequate independent grounds to convict the defendant of both offenses”) (quotations and citation omitted).

¶ 22 We conclude that the forgeries were not necessary to Defendant’s identity fraud conviction. By completing the credit application and signing it as Mewborn, signing the installment contract as Mewborn, and signing the receipt as Mewborn, Defendant made and executed three writings while purporting to be another. Thus, we agree with the State that the evidence supports that Defendant committed three separate forgeries. See State v. Patience, 944 P.2d 381, 391 (Utah Ct.App.1997) (holding “theft consolidation rule does not apply to forgery cases” and each act of forgery generally constitutes a separate crime). -However, that the forgeries were independent of each other does not mean that they are independent of the identity fraud conviction. By making and executing the documents purporting to be Mew-born, Defendant used Mewborn’s personal identifying information with fraudulent intent to obtain credit and the bedroom set without Mewborn’s consent and therefore committed identity fraud. The forgeries were the means by which Defendant used Mewborn’s personal identifying information with fraudulent intent to obtain credit and to obtain the bedroom set.

¶ 23 Moreover, the issue here is not solely whether the evidence supports separate acts or offenses. Rather the issue here is whether “a reasonable jury would have understood, based on the [arguments,] instructions^] and evidence at trial, that it had to find an additional element beyond the elements of [identity fraud] before it could convict defendant of forgery.” Ross, 951 P.2d at 243. On appeal, the State maintains that Defendant committed identity fraud by filling out the top of the credit application, but committed forgery by signing it as Mewborn. The State also maintains that Defendant committed two subsequent forgeries that were independent of the identity fraud by signing the installment contract and the receipt as Mew-born. These specific theories were not presented at trial nor was the jury appropriately instructed that it had to find the elements of identity fraud independent of the forgeries. Rather, the prosecution indicated that Defendant committed both forgery and identity fraud by filling out the top part of the credit application. The prosecution also indicated that Defendant committed identity fraud by using Defendant’s personal identifying information, including his name, and that signing constituted using Defendant’s personal information.

¶ 24 Furthermore, “whether the jury was properly instructed to find” “additional proof’ for the forgery conviction “is determinative.” State v. Betha, 957 P.2d 611, 619 (Utah Ct.App.1998). We conclude the jury instructions fail to demonstrate “that the prosecution did not rely upon the same elements to prove [forgery and identity fraud].” Id. The jury was instructed that to convict Defendant of forgery it had to find that Defendant:

1. [Intentionally or knowingly made, executed, issued or uttered a writing; and
2. That said writing or utterance purported to be the act of [Mewborn]; and
3. That said writing or utterance was not the act of [Mewborn]; and
4. That said writing or utterance was not authorized by [Mewborn]; and
5. That ... [Defendant] then and there knew the writing was not the act of [Mewborn] and was not authorized by [Mewborn]; and
6. That ... [Defendant] then and there had a purpose to defraud.

¶ 25 The jury was instructed that to convict Defendant of identity fraud it had to find Defendant:

2. knowingly or intentionally obtained personal identifying information of [Mewborn] without the authorization of [Mewborn;] and
3. used or attempted to use that information with fraudulent intent, including to obtain or attempt to obtain, credit, goods, services, any other thing of value, or medical information in the name of Jeffrey [Mewborn] without the consent of [Mewborn;] and
4. the value of the credit, goods, services or any other thing of value is or exceeds $5,000.00.

¶ 26 Although to convict Defendant of forgery the jury had to find that Defendant made or executed a writing purporting to be Mewborn, nothing in the instructions informed the jury that the “use of personal identifying information” element of identity fraud could not be satisfied by the forged writings. Nor do the instructions inform the jury that it could convict Defendant of identity fraud on the basis of filling out and signing the credit application and signing the installment contract to obtain credit, and forgery on the basis of signing the receipt as Mewborn.

¶ 27 Although forgery might be separately proved in another circumstance, on the facts of this case, we conclude that forgery is a lesser included offense of identity fraud. Accordingly, we vacate Defendant’s forgery conviction.

CONCLUSION

¶28 We conclude identity fraud is not a lesser included offense of theft by deception. We also conclude, in this instance, forgery was a lesser included offense of identity fraud. Accordingly, we affirm the identity fraud and theft by deception convictions. We reverse the forgery conviction.

¶ 29 WE CONCUR: RUSSELL W. BENCH, Judge, and GREGORY K. ORME, Judge.

      . In fact, Mewborn spells his first name "Jeffrey.”

      . On its face, the document indicates it is an invoice.

      .Because we conclude that forgery is a lesser included offense of identity fraud, we do not reach Defendant's contention that forgery is a lesser included offense of theft by deception.

      . Had Defendant represented himself as a fictional "Jeffrey Mewborn,” and created personal identifying information, he may not be guilty of identity fraud even if there existed a real person named "Jeffrey Mewborn.” The deception would, however, support a conviction for theft by deception.

      . Defendant also argues that the identity fraud conviction should be reversed because the identity fraud and the theft by deception were based on the "same act” in a "single criminal episode." Utah Code Ann. § 76-1-402(1) (1999). However, the identity fraud was based in part on Defendant’s act of obtaining Mewborn’s personal identifying information without Mewborn's authorization. Because the identity fraud was not based entirely upon the same act as theft by deception, this argument fails.

      ."Purpose to deprive” means to have the conscious object:
      (a) To withhold property permanently or for so extended a period or to use under such circumstances that a substantial portion of its economic value, or of the use and benefit thereof, would be lost; or
      (b) To restore the property only upon payment of a reward or other compensation; or
      (c) To dispose of the property under circumstances that make it unlikely that the owner will recover it.
      Utah Code Ann. § 76-6-401(3).

      . In the present case, the jury instructions defined "with fraudulent intent” as "to act willfully, and with the specific intent to deceive or cheat, ordinarily for the purpose of either causing some financial loss to another, or bringing about some financial gain to oneself.”

      . In the present case, the jury was not instructed on the types of personal identifying information in Utah Code Ann. § 76-6-1102(1). However, in closing argument the prosecutor indicated the types of personal identifying information in the statute, including another’s name.

      . In the present case, the jury instructions also included the "issue” and "utter” variations of forgery. However, the State’s theory at trial and on appeal is that Defendant committed forgery by signing the credit application, installment contract, and the receipt. Therefore, we do not consider the "issue” and "utter” variations of forgeiy.

      . The State does not argue that the evidence supports more than one identity fraud conviction.

      . In his opening argument, the prosecutor stated that Defendant "stole [Mewborn’s] identity when he walked into that bedroom store, selected items, and then used [Mewborn’s] personal information to buy goods, to opea a line of credit, and he had no permission or authorization from [Mewborn] to use that information or buy those goods.” Identity fraud occurs "when someone uses someone else’s personal information — identifying information like a name, a Social Security number, a date of birth, to obtain ... something of value. In this case that was the bedroom set, and the line of credit for the bedroom set.” The prosecutor then stated, "a forgery occurred ... three separate times ... and those were each of the documents in which the defendant signed his name as [Mewborn]: the credit ... application, the installment contract; and the receipt for the goods.”
      In closing argument, the prosecutor stated in regard to identity fraud,
      the personal identifying information that's at issue in this case is [Mewborn’s] name, his date of birth, his Social Security number and his address ... which is listed on the credit ... application.... [T]his all was done, again, without the authorization of [Mewborn].... He never gave [Defendant] any permission to use his name, sign his name, use any of his identifying information.

      In regard to the forgery, the prosecutor stated, the state had to show that Defendant
      intentionally or knowingly made, executed, issued or otherwise] made [a] writing.... [W]hen someone makes or executes a document, basically what they're doing is writing on it. They’re making some form of writing. ... [T]hat’s being done ... on several different documents in this case. That’s being done when the top portion of the credit application is filled out, that’s making or executing a document, and when it’s being signed at the bottom in [Mewborn’s] name by [Defendant.] It’s being done also ... on the installment contract ... when again, defendant signs his name at the bottom ... [a]nd then finally, on the receipt for the furniture, when [Defendant] signs his name there.
      (Emphasis added.)

      . The jury instructions defined “make” as "to cause to exist or to form, fashion, or produce.”

      . The jury instructions defined "execute” as "to malee or to do.”


author: GREENWOOD, Judge:

text:
    2003 UT App 157
    Nana G. PENROSE, Plaintiff and Appellant, v. Bryant ROSS, an individual (formerly identified as Doe 1); Christopher Ross, an individual; Does 2-5, inclusive, whose true names are not known to plaintiff, Defendants and Appellee.
    No. 20010943 CA.
    Court of Appeals of Utah.
    May 22, 2003.

      Scott N. Cunningham, Salt Lake City, for Appellant.
    Michael W. Wright and Richard K. Glau-ser, Salt Lake City, for Appellee.
    Before Judges DAVIS, GREENWOOD and THORNE.
   OPINION

GREENWOOD, Judge:

¶ 1 Nana Penrose (Penrose) appeals the trial court’s grant of summary judgment for defendant, Bryant Ross (Ross), claiming error in the court’s determination that her amended complaint does not properly relate back to the original complaint. We affirm.

BACKGROUND

¶ 2 On November 17, 2000, just days prior to the expiration of the statute of limitations on her claim, Penrose filed a complaint for negligence (Original Complaint) against Christopher Ross (Father) and Does 1-5. In the Original Complaint, Penrose alleged that she was traveling southbound on 900 East when Father and Does 1-5 pulled out of a parking lot and hit her car. Penrose claimed that Father and Does 1-5 were negligent in: failing to pay attention to existing and changing traffic conditions; failing to look out for vehicles on the road, resulting in a traffic ticket; driving too fast; and driving and operating an automobile improperly. Pen-rose claimed damages from serious injuries she sustained, resulting in permanent impairment, mental anguish, sleeplessness, nausea, headaches, and dizziness. Penrose additionally sought damages exceeding $3,000 for various medical services.

¶ 3 On December 27, 2000, after the statute of limitations had run, Penrose filed an Amended Complaint, identifying Doe 1 as Ross, Father’s son. Penrose’s Amended Complaint names Father as the owner of the vehicle but alleges that the negligent party was Ross, who was driving the car, not Father. Aside from the change in the identity of the negligent party, all other allegations as to cause and injury remained the same as in the Original Complaint.

¶ 4 Father responded to the Original Complaint on January 2, 2001, denying significant parts. Father also filed an affidavit on January 5, 2001, stating that although he was the owner of the vehicle involved in the accident, he was not the driver. Father included a copy of the police report that identified Ross as the driver of the car that collided with Penrose.

¶ 5 Ross filed a Motion for Summary Judgment, claiming the action against him was barred by the statute of limitations. Father also filed a Motion for Summary Judgment, arguing that because Penrose had amended her complaint alleging that Ross was the true driver of the vehicle, he could not be liable.

¶ 6 The trial court granted Ross’s Motion for Summary Judgment, determining that the statute of limitations had run and that no identity of interest existed between Father and Ross. The trial court also granted Father’s Motion for Summary Judgment, concluding that a “cause of action for negligence may not be made out solely on the basis of ownership.” Penrose appeals the summary judgment granted to Ross.

ISSUE AND STANDARD OF REVIEW

¶ 7 Penrose contends that the trial court erred in granting Ross’s Motion for Summary Judgment. “In considering an appeal from a grant of summary judgment, we view the facts in a light most favorable to the losing party below. And in determining whether those facts require, as a matter of law, the entry of judgment for the prevailing party below, we give no deference to the trial court’s conclusions of law: those conclusions are reviewed for correctness.” Blue Cross & Blue Shield v. State, 779 P.2d 634, 636 (Utah 1989).

ANALYSIS

¶ 8 The traffic accident from which this suit arose occurred on November 21, 1996. Thus, the statute of limitations for Penrose’s claim of negligence expired on November 21, 2000. See Utah Code Ann. § 78-12-25(3) (2002) (“An action may be brought within four years: ... for relief not otherwise provided for by law.”); see also State Bank of S. Utah v. Troy Hygro Sys., 894 P.2d 1270, 1274 (Utah Ct.App.1995) (stating claims of negligence are governed by Utah Code Ann. § 78-15-25(3)). On November 17, 2000, just four days before the expiration of the statute of limitations, Penrose filed her Original Complaint, asserting that Father’s negligent driving resulted in an accident injuring Pen-rose. Penrose properly filed an Amended Complaint prior to service of Father’s responsive pleading. See Utah R. Civ. P. 15(a) (“A party may amend his pleading once as a matter of course at any time before a responsive pleading is served-”). However, the Amended Complaint, filed on December 27, 2000, naming Ross as defendant Doe 1, was filed after the statute of limitations expired. Therefore, the issue before this court is whether the Amended Complaint properly relates back to the Original Complaint, thus permitting Penrose to pursue her action against Ross.

¶ 9 Utah Rule of Civil Procedure 15(c) governs the relation back of amendments, stating: “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” Id. Rule 15(e) further “allows a plaintiff to cure defects in his or her original complaint despite the intervening running of a statute of limitations.” Russell v. Standard Corp., 898 P.2d 263, 265 (Utah 1995). Generally, however, rule 15(c)

will not apply to an amendment which substitutes or adds new parties for those brought before the court by the original pleadings ....
There is an exception to this rule. The exception operates where there is a relation back, as to both plaintiff and defendant, when new and old parties have an identity of interest; so it can be assumed or proved the relation back is not prejudicial. The rationale underpinning this exception is one which obstructs a mechanical use of a statute of limitations; to prevent adjudication of a claim.

Doxey-Layton Co. v. Clark, 548 P.2d 902, 906 (Utah 1976) (emphasis added); see also Vina v. Jefferson Ins. Co. of N.Y., 761 P.2d 581, 586 (Utah Ct.App.1988) (applying identity of interest rule laid out in Doxey-Lay-ton). “An identity of interest exists ‘when “the real parties in interest were sufficiently alerted to the proceedings, or were involved in them unofficially, from an early stage.” ’ ” Nunez v. Albo, 2002 UT App 247,¶ 29, 53 P.3d 2 (quoting Sulzen v. Williams, 1999 UT App 76,¶ 14, 977 P.2d 497 (quoting Doxey-Layton, 548 P.2d at 906)), cert. denied, 59 P.3d 603 (Utah 2002).

¶ 10 Citing the above cases, Penrose argues that there is an “identity of interest” when the real party is alerted to the proceeding so as to avoid prejudice. Penrose reasons that it is reasonable to assume that Father told Ross he was served with a complaint asserting damages resulting from the accident involving Ross because (1) Father was served at the same residence as Ross, (2) Father knew Ross was driving his car and was in an accident, (3) Father knew he was not the driver involved in the accident, (4) Ross was insured by Father’s insurance policy, and (5) Father and Ross have the same attorney. Therefore, Penrose argues, Ross had notice of the lawsuit and would not be prejudiced by being added as a named party in the Amended Complaint.

¶ 11 Ross argues that Utah courts have allowed the relation back of amendments to complaints incorporating newly named parties in two types of cases: (1) in so called “misnomer cases,” and (2) where there is a true “identity of interest.” We agree, but determine this case does not fit either.

¶ 12 In the misnomer cases, Utah has permitted amendments where the complaint contains a technical defect in the naming or identification of a party.

“A misnomer is involved when the correct party was served so that the party before the Court is the one Plaintiff intended to sue, but the name or description of the party in the Complaint is deficient in some respect.” 6A [Charles A. Wright, Arthur R. Miller & Mary Kay Kane] Federal Practice and Procedure § 1498 (2d ed.1990). Furthermore, “[i]f the body of the complaint correctly identifies the party, or if the proper person has actually been served with process, courts generally will allow an amendment under Rule 15 to correct technical defects in the caption. This seems appropriate inasmuch as a defective caption or even its complete absence is merely a formal error and never shall be viewed as a fatal defect.” 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1321, at 728-30 (2d ed.1990) (footnotes omitted).

Wilcox v. Geneva Rock Corp., 911 P.2d 367, 370 (Utah 1996) (alteration in original). As explained in Otchy v. City of Elizabeth Bd. of Educ., 325 N.J.Super. 98, 737 A.2d 1151 (App.Div.1999), in misnomer cases, the correction of a party name is a “ ‘formal’” change, rather than a “ ‘substantial’ ” change; thus, amending the complaint “does not affect the rights of the added party, and ... fairly relate[s] back to the original filing[,] despite the running of the statute of limitations.” Id. at 1155.

¶ 13 For example, in Sulzen v. Williams, a woman was hit and killed by a rock dislodged by two minors hiking above her. See 1999 UT App 76 at ¶ 2, 977 P.2d 497. In a suit for negligence, the named defendants were the mother and guardian of one of the minors, and the father and guardian of the other minor. See id. at ¶ 3. However, the text of the complaint alleged that the minors were the negligent parties. See id. at ¶4. The trial court granted the parents’ motion for summary judgment and prohibited the plaintiffs from amending the complaint to name the minors as defendants because the statute of limitations had run and the parents were admittedly not negligent. See id. at ¶¶ 5-9. On appeal, this court reversed, stating that the complaint could properly be amended because the parents “had an identity of interest with their children, and thus relating the [plaintiffs’] amendment back would not have been prejudicial.” Id. at ¶ 15 (emphasis added). Because “the parents [were] incorrectly named as defendants in the original complaint’s caption — i.e., named in the wrong place in the caption’s phraseology,” we reasoned that although a mistake was made in the naming of the parties, the minor children “were sufficiently alerted to the proceedings, and that they thus had sufficient identity of interest with their parents, to make relation back appropriate.” Id. (footnote omitted); see also Wilcox, 911 P.2d at 370-71 (permitting an amendment to a complaint that incorrectly named “Geneva Rock Co.,” rather than “Geneva Rock Products, Inc.,” where the summons correctly listed the company name and the vice president was properly served); 5 Wright & Miller, supra, § 1321 (“If the body of the complaint correctly identifies the party ... courts generally will allow an amendment under [r]ule 15 to correct technical defects in the caption.”).

¶ 14 This is not the case presented here. Unlike Sulzen, where the correct party was specifically identified in the text of the complaint as the negligent party, see id. 1999 UT App 76 at ¶ 4, 977 P.2d 497, Ross was not identified in any capacity in the Original Complaint. Here, there was no misnomer or “technical” mistake; Penrose purposefully sued Father for negligence and sought to add Ross as a defendant and the negligent party after the expiration of the statute of limitations. Furthermore, it cannot be argued that Penrose merely made a technical mistake in naming Father as the negligent driver, because, as evidenced by the police report, Penrose was given notice at the scene of the accident that Ross was the driver and Father was the owner of the vehicle.

¶ 15 Having determined that the present case is not a misnomer case, we next determine whether a true identity of interest exists, permitting the amended complaint to relate back. If an identity of interest is established, a party generally cannot be prejudiced. See Doxey-Layton Co. v. Clark, 548 P.2d 902, 906 (Utah 1976) (stating amendment permitted “where there is a relation back, ... when new and old parties have an identity of interest; so it can be assumed or proved the relation back is not prejudicial”); Vina v. Jefferson, Ins. Co. of N.Y., 761 P.2d 581, 586 (Utah Ct.App.1988) (same).

¶ 16 Black’s Law Dictionary defines “identity” as “[t]he identical nature of two or more things.” Black’s Law Dictionary 748 (7th ed.1999). Webster’s defines identity as “sameness of essential or generic character in different instances” and “the condition of being the same with something described or asserted.” Webster’s Ninth New Collegiate Dictionary 597 (1986). Therefore, an identity of interest requires parties to have the “same” interest. This definition is supported by the Utah Supreme Court in Attorney General v. Pomeroy, 93 Utah 426, 73 P.2d 1277, 1294 (1937). In Pomeroy, the issue before the court was whether a final judgment as to one issue in a case with multiple parties was effective as to all parties for the purpose of an appeal. See id. at 1294. The court applied the “identity of interest” test, which it defined as “whether the determination of the issues as to any defendant depends on or affects the determination of the issues as to the other defendants.” Id.

¶ 17 Similarly, in Nunez v. Albo, 2002 UT App 247, 53 P.3d 2, this court determined that an identity of interest existed between an employer and an employee, permitting an amendment to the complaint adding the employer as a party to the complaint. In Nunez, a malpractice action was filed against a physician alleging damages caused by the physician’s performance of a medical treatment. See id. at ¶ 5. Nunez filed a motion to amend the complaint to name the physician’s employer, the University of Utah Hospital (Hospital), as a defendant. See id. at ¶¶ 5-6. The trial court denied Nunez’s motion and she appealed. See id. at ¶ 6. In determining whether the amended complaint related back to the original complaint, this court analyzed rule 15(c) and cases outlining the exception permitting the addition of parties where an identity of interest is established. See id. at ¶ 29.

¶ 18 We held that an identity of interest existed between the Hospital and the physician because the cause of action “ ‘arose out of the conduct, transaction, or occurrence set forth ... in the original pleading.’ ” Id. (quoting Utah R. Civ. P. 15(c)). This court also noted that the Hospital had potential vicarious liability as the employer of the physician. See id. at ¶¶ 27-34. Further, the University provided legal counsel for the physician, asserting that the physician was acting within the scope of his employment by the Hospital and was entitled to the protections of the Governmental Immunity Act. See id.

¶ 19 In Nunez, any disposition of the ease against the physician would necessarily affect the Hospital’s liability. Thus, an identity of interest existed because the legal position and defenses of the two parties were the “same.” However, in the present case, had Penrose’s Original Complaint properly named the parties, a disposition of the case against Father would not affect a determination as to Ross because the two parties do not have the same legal interest in the outcome of the case. Father’s defense is that he was not negligent or liable because he was not the driver. On the other hand, Ross’s affirmative defense focuses on the running of the statute of limitations. Even if the claim had been properly filed, Ross’s defense would be that he did not act negligently. A disposition as to either party does not affect the claims or defenses available to the other party. Thus, where they do not have the “same” legal interest there is no identity of interest.

¶ 20 Had there been an identity of interest, there would necessarily be no prejudice. In Nunez, the court stated, “new defendants sought to be added must have an identity of interest with the original party named in the complaint, ‘so it can be assumed or proved the relation back is not prejudicial.’ ” Id. at ¶ 29 (emphasis added) (quoting Wilcox v. Geneva Rock Corp., 911 P.2d 367, 369 (Utah 1996)); see Doxey-Layton, 648 P.2d at 905 (same). If prejudice alone dictated whether an identity of interest existed, the exception to amending complaints would swallow the rule and allow relation back whenever an unnamed party happened to know about the filing of a complaint. Therefore, because we find that no identity of interest exists between Father and Ross, we need not address whether there was prejudice. Furthermore, because there is no identity of interest Pen-rose’s Amended Complaint cannot properly relate back.

CONCLUSION

¶21 The trial court correctly determined there was no identity of interest between Father and Ross to permit relation back of the Amended Complaint adding Ross as a defendant. Relation as father and son and Ross’s possible knowledge of the Original Complaint are insufficient to create a legal identity of interest in the lawsuit. Thus, we affirm.

¶ 22 WE CONCUR: JAMES Z. DAVIS and WILLIAM A. THORNE JR., Judges.

      . Father’s response to the Original Complaint and Penrose’s Amended Complaint appear to have crossed in the mail.

      . Although Penrose asserts that the trial court’s findings of fact are inadequate, we believe the undisputed facts contained in the court’s Findings of Fact and Conclusions of Law are sufficient as a matter of law to support its grant of summary judgment.

      . The original police report clearly lists Father as owner of the vehicle, Ross as the driver of the vehicle, and specifically charges Ross with "Improper Look Out.”

      .Determining whether an identity of interest exists is necessary in numerous contexts. See, e.g., Doxey-Layton Co. v. Clark, 548 P.2d 902, 905 (Utah 1976) (finding an identity of interest between decedent and heirs so as to permit an amendment adding heirs as parties); Nunnelly v. First Fed. Bldg. & Loan Ass’n of Ogden, 107 Utah 347, 154 P.2d 620, 626 (1944) (outlining rule to determine parties in a class action and requiring there be an identity of interest); Conder v. Hunt, 2000 UT App 105,¶ 9, 1 P.3d 558 (noting that claim preclusion applies in limited exception for those in privity with one another evaluated by the parties' identity of interest); James Constructors, Inc. v. Salt Lake City Corp., 888 P.2d 665, 669 (Utah Ct.App.1994) (stating an identity of interest exists between principal and surety in the context of indemnity).

      . Attorney General v. Pomeroy, 93 Utah 426, 73 P.2d 1277, 1294 (1937), implemented a rule that the statute of limitations for debt is extended by acknowledgment or partial payment. This rule was superceded by statute, as held in State Bank of Southern Utah v. Troy Hygro Systems, 894 P.2d 1270, 1276 (Utah Ct.App.1995). However, its analysis as to identity of interest was not affected.

      . Nunez v. Albo, 2002 UT App 247, 53 P.3d 2, also addressed rule 15(a) of the Utah Rules of Civil Procedure requiring that amendments should be permitted "when justice so requires.” Id. at ¶ 19. That discussion appropriately focuses on prejudice.

      . We note that the relation-back provision is an exception to the statute of limitations. Penrose had four years to ascertain the identity of the driver of the car that allegedly injured her. She did not commence that inquiry early enough to avoid the expiration of the statute of limitations.