author: KEITH RAPP, Judge:

text:
    2003 OK CIV APP 97
    Rita LAWS, Plaintiff/Appellant, v. STATE of Oklahoma ex rel., OKLAHOMA DEPARTMENT OF HUMAN SERVICES and Howard Hendrick, Defendants/Appellees.
    No. 96,740.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Aug. 5, 2003.
    Certiorari Denied Nov. 10, 2003.

      Kayla A. Bower, Joy J. Turner, Oklahoma Disability Law Center, Inc., Oklahoma City, OK, for Plaintiff/Appellant.
    Travis Smith, Assistant General Counsel, Oklahoma Department of Human Services, Oklahoma City, OK, for Defendants/Appel-lees.
    Kent Markus, Columbus, OH, for Amicus Curiae, The Dave Thomas Center, for Adoption Law.
   Opinion by

KEITH RAPP, Judge:

{1 The trial court plaintiff, Rita Laws (Laws), an adoptive parent of G.L., appeals the trial court decision sustaining in part the decision of the Oklahoma Department of Human Services (State) to deny adoption assistance benefits for GL. to Laws. The State appeals the same trial court decision which overruled in part the State's administrative decision denying adoption assistance benefits.

BACKGROUND

2 Although this case comes for review in the context of the very real concerns surrounding the adoption of children with special needs, the defining issue herein is one of statutory construction. It is undisputed that GL. qualifies as a special needs child.

T3 Congress enacted the Adoption and Child Welfare Act of 1980 to provide financial assistance to parents who adopt children with special needs. 1980 U.S.C.C.A.N. 1448, 1450. With regard to the payments of financial assistance 42 U.S.C. § 673(a)(8), provides, in part, that payments may not "exceed the foster care maintenance payment which would have been paid during the period if the child with respect to whom the adoption assistance payment is made had been in a foster family home." This has been named the IV-E Program.

T4 Oklahoma's statute, enacted in response to the federal scheme, was codified as 10 0.9.2001, §§ 7510-1.2-7510-1.5. The statute, in Section 7510-1.5(A), provided, in part:

A. When a parent or parents are found and approved for adoption of a child who is certified as eligible for subsidy, and before the final decree of adoption is issued, there must be a written agreement between the family entering into the subsidized adoption and the Department of Human Services. Adoption subsidies in individual cases may commence with the adoption placement or at the appropriate time after the adoption decree, and shall be based on the needs of the child as well as the availability of other resources to meet the child's needs. The subsidy may be for special services only, or for money payments, and either for a limited period, or for a long term, or for any combination of the foregoing. The amount of the time-limited or long-term subsidy may in no case exceed that which would be allowable from time to time for such child under foster family care, or in the case of a special service, the reasonable fee for the service rendered.

T5 The State, via its agency, DHS, in implementing the IV-E program utilized a two-tier system whereby payments to adoptive parents were less than payments to foster parents so that adoptive parents were precluded from negotiating for assistance equal to that provided to a foster parent. Also, the State imposed additional criteria before an adoptive parent could be eligible. Under the State's view, the lower payment schedule was valid because the statute permitted any payment so long as the amount did not exeeed the foster parent payment and the State has the authority to establish a rate structure, subject to the foster care limit.

T6 Thus, the first issue necessary for review is whether the excerpted provision of the federal Act is merely a cap on payments, as argued by the State. For reasons herein set out, this Court holds it is not.

T7 Laws, contra to the State's position, asserts she was entitled to negotiate for a payment up to the amount available to foster parents. She contends the federal law authorizes her to be able to negotiate up to the foster parent level and that any limit impairing that authority is unlawful.

T8 G.L., the special needs child adopted by Laws, was born on December 9, 1992. The adoption became final January 1, 1999. Under the scheme of assistance established by the State, a higher level of assistance to a special needs child would become available upon a child reaching age six. Thus, Laws initiated a request for assistance in August of 1998, and renewed the request in November of 1998, because G.L. would be six in December of 1998.

T9 After an administrative hearing before an ALJ and review, the State denied Laws' request for adoption assistance at the foster parents' level of assistance as of G.L.'s sixth birthday because the pre-April 19, 1999, payment schedule differentiated between foster parent assistance and adoptive parent assistance, with the former at a higher level of payment. The State justified this result by reference to the statutory language requiring that adoption assistance not exceed foster parent assistance set out in Section 7510-1.5(A), quoted above.

1 10 There are, in this matter, three periods of time involved due to regulation changes made by the State. These periods are: (a) pre-April 14, 1999, going back to GL.'s sixth birthday on December 9, 1998; (b) April 14, 1999, when regulatory changes were made, to October 18, 1999, when additional regulatory changes were made on October 19, 1999; and, (c) October 19, 1999, to December 31, 1999. Laws began receiving the maximum assistance available on January 1, 2000. The trial court, after review of the DHS ALJ's finding, reversed the State's administrative ruling in part by directing that Laws receive that maximum retroactively for the period back to October 19, 1999.

T 11 The State amended the regulations on April 14, 1999, to add two levels of payments for adoption assistance. However, these new levels were available only to children who were qualified for Social Security supplemental income (SSI) and who were adopted by a special class of licensed foster parents. The administrative ruling held that Laws failed to qualify under either part of the regulation. The ruling further stated that the regulation was not a condition on receipt of adoption assistance, but rather a set of criteria for a specific rate of payment. Laws does not dispute that factually she did not qualify under the regulation, but asserts that the scheme was a continuation of the differentiation between foster parent assistance and adoptive parent assistance, and therefore unlawful as an impediment to her right to negotiate for the higher level of assistance. This assertion then represents the second issue of this cage.

€ 12 The regulations were again amended effective October 19, 1999, with the effect of removing the differentiation between adoptive and foster parents. Laws was approved for payments assistance under these revised regulations, effective January 1, 2000. The State denied assistance prior to that time on the ground of ineligibility, stating that G.L. had not been approved for services through DDSD.

113 The District Court affirmed the administrative ruling denying her benefits up to October 18, 1999. The District Court, on appeal, also ruled that payment to Laws should be retroactive to the amendment on October 19, 1999. The State appeals the retroactive ruling.

STANDARD OF REVIEW

"14 The appellate court has the plenary, independent, and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1. Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, ¶ 5, 861 P.2d 326, 328. The appellate court will review de novo an administrative agency's interpretation of a statute. Oklahoma Employment Security Comm'n v. Oklahoma Merit Protection Comm'n, 1995 OK CIV APP 76, ¶ 5, 900 P.2d 470, 473.

115 When construing a statute the fundamental rule is to give effect to the legislature's intent and purpose of the legislation. May v. National Union Fire Ins. Co. of Pittsburgh, Pa., 84 F.3d 1342, 1348 (10th Cir.1996); Samson Hydrocarbons Co. v. Oklahoma Tax Comm'n, 1998 OK 82, ¶ 7, 976 P.2d 532, 535. Courts will seek to construe a statute in light of its general policy and purpose and to give effect to the policy and purpose of the statute. Nealis v. Baird, 1999 OK 98, ¶ 55, 996 P.2d 438, 460. Thus, the courts construe statutes "in order to champion the broad public policy purposes that underlie them." Haggard v. Haggard, 1998 OK 124, ¶ 12, 975 P.2d 439, 442.

ANALYSIS AND REVIEW

First Issue-Different Payment Schemes: Adoptive Parents and Foster Parents

116 This Court notes and determines that the provision of 42 U.S.C. § 673(2)(8) limiting assistance to no more than that sum provided to foster parents is not a license to discriminate against adoptive parents. Adoptive parents are entitled under the Act to negotiate for an amount of assistance up to, but not in excess of, that amount of assistance available to foster parents. Here, the State arbitrarily and without authority, limited adoptive parents to an amount less than that provided to foster parents. The State's administrative ruling, and the trial court's affirmance thereof, are contrary to the statutory language and erroneous.

I 17 The error under review while narrow in seope nonetheless has consequences upon the adoptive family. The State may indeed pay less to an adoptive parent than to a foster parent because individual cases may and do vary as the needs of each individual child vary. However, the crux here is that the State may not impose a ceiling different for each class of case, such that the adoptive parent may never under any circumstances obtain assistance equal to assistance provided to foster parents.

1 18 The legislative history of IV-E states: The amount of the adoption assistance would be agreed upon between the parents and the agency, could not exceed the foster care maintenance payment that would be paid if the child were in a foster family home, and could be readjusted by agreement of the parents and the local ageney to reflect any changed cireumstances.

1980 U.S.C.C.N. at 1450.

$19 The United States Department of Health and Human Services' Childrens' Bureau (Bureau) administers the federal statute. That agency has published, in question and answer form, its interpretation of the law in the form of a Child Welfare Policy Manual (Manual). Such informal interpretations are not entitled to deference, but are of assistance in ascertaining the purpose, policy, and meaning of a statute. Hunnicutt v. Hawk, 229 F.3d 997, 999 (10th Cir.2000).

120 The Bureau recognizes that the Act establishes that the amount of assistance in an individual case based upon needs of the child and family cireumstances after negotiation between parents and the local agency. Manual, 8.2D.4 (Question 1). The specific interpretation given by the Bureau states:

Q. Please explain how the State agency should set rates for title IV-E adoption assistance payments.
A. The amount of the adoption assistance payment cannot exceed the amount the child would have received if s/he had been in a foster family home, but otherwise must be determined through agreement between the adoptive parents and the State or local title IV-E agency. Unlike other public assistance programs in the Social Security Act, the title IV-E adoption assistance program is intended to encourage an action that will be a lifelong social benefit to certain children and not to meet short-term monetary needs during a crisis. Further, the adoptive parents' income is not relevant to the child's eligibility for the program. Title IV-E adoption assistance is not based upon a standard schedule of itemized needs and countable income. Instead, the amount of the adoption assistance payment is determined through the discussion and negotiation process between the adoptive parents and a representative of the State agency based upon the needs of the child and the circumstances of the family. The payment that is agreed upon should combine with the parents' resources to cover the ordinary and special needs of the child projected over an extended period of time and should cover anticipated needs, e.g., child care. Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment.

Manual, 8.2D4 (Question 1). added.) (Emphasis

Q. Some State's foster care rate structures are based on levels of care. How would such a rate structure impact (sic) the adoption assistance rates?
A. If a State's foster care payment schedule includes higher level-of-care rates that are paid across-the-board for certain children, the State may pay up to that amount in adoption assistance if that specific child would have received the higher level-of-care rate in foster care.

Manual, 8.2D.4 (Question 5).

[ 21 The fatal flaw in the pre-October 1999 limitation imposed by the State is that the limitation artificially frustrates the purpose of the Act "to encourage an action that will be a lifelong social benefit to certain children" and to do so "through the discussion and negotiation process" so as to meet the needs of the child and to consider the family circumstances. Here, the State has not demonstrated any basis whatsoever to justify its decision to place a cap on assistance to adoptive parents other than the maximum tied to foster care payments.

1 22 This Court emphasizes and recognizes that payment of the maximum is obviously not automatically required in every case. The purpose of the IV-E Program is to encourage adoption of special needs children by providing assistance to alleviate the financial burdens associated with the special needs of the children. Only the individual needs of the child and circumstances of the family govern the limits, subject to the cap, of that assistance.

123 Moreover, unlike other subsidy laws, here there is no means test. "The use of a means test is prohibited in the process of selecting a suitable adoptive family, or in negotiating an adoption assistance agreement, including the amount of the adoption assistance payment." Manual, 824.2 (Question 1). The Bureau's prohibition against a means test reinforces this Court's conclusion. The policy is that persons qualified to adopt, and who are willing to adopt a special needs child, shall be entitled to obtain assistance when that child's needs and their cireum-stances warrant. The policy encourages and supports adoption of special needs children who otherwise might not be adopted simply because of financial burdens. The absence of a means test is further indication that the underlying legislative intent is to make the subsidy available to all adoptive parents and in an amount up to the maximum provided by law.

124 The State's approach, until October 1999, frustrated the purposes of adoption assistance and the policy underlying that purpose. Hence, the State's actions in establishing a two-tier system were not in conformity to the federal law and unlawful.

125 Moreover, the State's approach finds no support in Oklahoma law as set out in the Statute. Section 7510-1.5, set out above, directs that adoption subsidies be based on needs of the child, without exceeding the foster care subsidy. 10 0.8.2001, $ 7510-1.5(A).

$26 The State in support of its position cites two Louisiana Court of Appeals cases. The first, In re Martorana, 619 So.2d 1121 (La.App.1993), presented a situation in which the Louisiana Department of Health and Human Resources promulgated a program manual providing for assistance up to eighty percent of foster care payments. The Louisiana legislature had established, by state law, an assistance program in response to federal law. The state act provided that payments may vary depending upon needs, but could not exceed the costs of foster care. Id. at 1122.

T27 The Louisiana Court of Appeals upheld their agency's eighty percent rule. In so doing, the Court limited its review to state law, particularly guided by the state's budgetary analysis argument. Id. at 1123. In light of the absence of application by that court of the federal law, this Court finds Martorama not to be persuasive.

The second case, In re B.M., 787 So.2d 331 (La.App.2001), involved a situation in which the trial court had ordered an adoption subsidy of $1,200.00 plus one hundred percent of the foster care rate. Thus, the payment subsidy ordered exceeded the maximum foster care assistance. Moreover, the subsidy offered by the state agency while the child was in foster care had been agreed to by the foster parent, who was also the prospective adoptive parent. This case wholly fails to provide the State authority to establish an artificial barrier to negotiation for the full foster care assistance amount as an adoption subsidy.

The Regulatory Barriee-April 19, 1999 to October 18, 1999

129 During this time period, the State regulations established two criteria: (1) SSI eligibility and approval by the Developmental Difficulties Service Division, (DDSD), to receive Specialized Foster Care through the Home and Community Based Waiver Service, (HCBWS), at the time the adoption is initiated and the time the adoption is finalized; and, (2) adoption by a special class of foster parent.

T30 The State's reliance upon the first criterion to deny assistance operates as a denial of assistance because of a regulation not in effect when Laws made her adoption application in 1998. It does not appear that Laws was afforded any opportunity to qualify after the regulation was promulgated. Moreover, it appears highly unusual that the State would seek to apply a rule applicable on its face to adoption cases in their inception whereas Laws' adoption had been finalized January 1, 1999, some four months prior to the effective date of the regulation. Finally, the record here shows that GL., as a foster child, had qualified for DDSD services.

31 The second requirement dealing with foster parent(s) clearly restricts adoption subsidies to a special class of persons. The State has failed to demonstrate authority or need for this special classification, especially in light of a complete absence of or even an implication of such authority in the federal Act. Moreover, the classification frustrates the purposes of the Act to encourage adoption of special needs children by limiting to a special class the opportunity to negotiate for a maximum assistance.

32 The provision of the regulation giving preference to a specific class of foster parents not only fails to find support in the Oklahoma Statutes, but also is contrary to the provisions of Section 7510-1.4(B). This subsection provides that a child will be eligible for subsidy when adopted by parents other than foster parents. The State's application of the regulation to Laws precluded her from qualifying G.L. for permitted subsidy assistance apparently because she had not been a member of the special class of foster parents. Subsection B recognizes that not every special needs child will be adopted by the class of foster parents specified in the regulation. Thus, the trial court erred in failing to reverse the State's Administrative decision and not recognizing Laws' right to negotiate within the statutory limits on the amount of assistance available.

Retroactive Qualification Post-October 19, 1999

€33 The State has appealed the trial court's retroactive grant of services from October 19, 1999. For the reasons set out in subsequent paragraphs, that decision is affirmed.

1 34 Laws has qualified for assistance under the regulations promulgated after October 19, 1999. The two-tier scheme was removed, but eligibility requirements existed. The three requirements in issue here are: (a) GL. must be determined to be retarded; (2) GL. must meet level of care requirements; and (8) DDSD must establish a written plan of care to receive HCBWS. The State, in defense, argues that assistance to G.L. was not available until January 2000, because the last requirement was not completed until that time.

1135 Hence, the issue is whether the trial court erred by making the qualification retroactive to October 19, 1999. The simple fact is that GL., as a foster child, had already met the first two of these requirements prior to 1998 when G.L. had his sixth birthday. Any plan deemed appropriate as a prerequisite for those services either was, or could have been, established then.

1836 Moreover, Laws had established her claim well prior to January 1, 2000. The trial court did not err by making the qualification retroactive and that portion of the decision is affirmed.

CONCLUSION

(37 Even though the trial court did not err by deciding to make the adoption assistance retroactive to October 19, 1999, the court did err in its decision not to afford Laws the opportunity to negotiate for assistance at the maximum foster care rate beginning on G.L.'s sixth birthday up to that date. The pre-October 1999 problem was that a two-tiered scheme prevented Laws from negotiating for the maximum foster care assistance. As determined here, that scheme was unlawful.

138 However, this leaves unresolved the amount of assistance from G.L.'s sixth birthday up to October 19, 1999. The amount, determined by negotiation, involves facts concerning G.L.'s needs and Laws' cireum-stances, all of which are not determined in the record here. Therefore, this Court reverses the trial court's decision to deny to Laws negotiation of assistance from G.L.'s sixth birthday to October 19, 1999.

39 This Court remands this case to the trial court with instructions to the trial court to direct the State to negotiate a rate of assistance with Laws in an amount not to exeeed the maximum foster parent assistance from and after the time of G.L.'s sixth birthday to October 19, 1999, with due speed.

140 AFFIRMED IN PART AND REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

GOODMAN, P.J., and REIF, J., concur.

      . The text of the statute involved here, 42 U.S.C. § 673, provides:
      (a) Agreements with adoptive parents of children with special needs; State payments; qualifying children; amount of payments; changes in circumstances; placement period prior to adoption; nonrecurring adoption expenses
      (1)(A) Each State having a plan approved under this part shall enter into adoption assistance agreements (as defined in section 675(3) of this title) with the adoptive parents of children with special needs.
      (B) Under any adoption assistance agreement entered into by a State with parents who adopt a child with special needs, the State-
      (i) shall make payments of nonrecurring adoption expenses incurred by or on behalf of such parents in connection with the adoption of such child, directly through the State agency or through another public or nonprofit private agency, in amounts determined under paragraph (3), and
      (ii) in any case where the child meets the requirements of paragraph (2), may make adoption assistance payments to such parents, directly through the State agency or through another public or nonprofit private agency, in amounts so determined.
      (2) For purposes of paragraph (1)(B)(ii), a child meets the requirements of this paragraph if such child-
      (A)) at the time adoption proceedings were initiated, met the requirements of section 606(a) of this title or section 607 of this title (as such sections were in effect on July 16, 1996) or would have met such requirements except for his removal from the home of a relative (specified in section 606(a) of this title (as so in effect)), either pursuant to a voluntary placement agreement with respect to which Federal payments are provided under section 674 (or 603 (as such section was in effect on July 16, 1996)) of this title or as a result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child,
      (i) meets all of the requirements of subchapter XVI of this chapter with respect to eligibility for supplemental security income benefits, or (iii) is a child whose costs in a foster family home or child-care institution are covered by the foster care maintenance payments being made with respect to his or her minor parent as provided in section 675(4)(B) of this title, (B)@i) would have received aid under the State plan approved under section 602 of this title (as in effect on July 16, 1996) in or for the month in which such agreement was entered into or court proceedings leading to the removal of such child from the home were initiated, or
      (ii) (I) would have received such aid in or for such month if application had been made therefor, or (If) had been living with a relative specified in section 606(a) of this title (as in effect on July 16, 1996) within six months prior to the month in which such agreement was eniered into or such proceedings were initiated, and would have received such aid in or for such month if in such month he had been living with such a relative and application therefor had been made, or
      (iii) is a child described in subparagraph (A)(ii) or (A)iii), and
      (C) has been determined by the State, pursuant to subsection (c) of this section, to be a child with special needs.
      The last sentence of section 672(a) of this title shall apply, for purposes of subparagraph (B), in any case where the child is an alien described in that sentence.
      Any child who meets the requirements of sub-paragraph (C), who was determined eligible for adoption assistance payments under this part with respect to a prior adoption, who is available for adoption because the prior adoption has been dissolved and the parental rights of the adoptive parents have been terminated or because the child's adoptive parents have died, and who fails to meet the requirements of subparagraphs (A) and (B) but would meet such requirements if the child were treated as if the child were in the same financial and other circumstances the child was in the last time the child was determined eligible for adoption assistance payments under this part and the prior adoption were treated as never having occurred, shall be treated as meeting the requirements of this paragraph for purposes of paragraph (1)(B)(ii).
      (3) The amount of the payments to be made in any case under clauses (i) and (ii) of paragraph (1)(B) shall be determined through agreement between the adoptive parents and the State or local agency administering the program under this section, which shall take into consideration the circumstances of the adopting parents and the needs of the child being adopted, and may be readjusted periodically, with the concurrence of the adopting parents (which may be specified in the adoption assistance agreement), depending upon changes in such circumstances. However, in no case may the amount of the adoption assistance payment made under clause (ii) of paragraph (1)(B) exceed the foster care maintenance payment which would have been paid during the period if the child with respect to whom the adoption assistance payment is made had been in a foster {amily home.
      (4) Notwithstanding the preceding paragraph, (A) no payment may be made to parents with respect to any child who has attained the age of eighteen (or, where the State determines that the child has a mental or physical handicap which warrants the continuation of assistance, the age of twenty-one), and (B) no payment may be made to parents with respect to any child if the State determines that the parents are no longer legally responsible for the support of the child or if the State determines that the child is no longer receiving any support from such parents. Parents who have been receiving adoption assistance payments under this section shall keep the State or local agency administering the program under this section informed of circumstances which would, pursuant to this subsection, make them ineligible for such assistance payments, or eligible for assistance payments in a different amount.
      (5) For purposes of this part, individuals with whom a child (who has been determined by the State, pursuant to subsection (c) of this section, to be a child with special needs) is placed for adoption in accordance with applicable State and local law shall be eligible for such payments, during the period of the placement, on the same terms and subject to the same conditions as if such individuals had adopted such child.
      (6)(A) For purposes of paragraph (1)(B)(i), the term "nonrecurring adoption expenses" means reasonable and necessary adoption fees, court costs, attorney fees, and other expenses which are directly related to the legal adoption of a child with special needs and which are not incurred in violation of State or Federal law. (B) A State's payment of nonrecurring adoption expenses under an adoption assistance agreement shall be treated as an expenditure made for the proper and efficient administration of the State plan for purposes of section 674(a)(3)(E) of this title.
      (b) Aid for dependent children; assistance for minor children in needy families
      (1) For purposes of subchapter XIX of this chapter, any child who is described in paragraph (3) is deemed to be a dependent child as defined in section 606 of this title (as in effect as of July 16, 1996) and deemed to be a recipient of aid to families with dependent children under part A of this subchapter (as so in effect) in the State where such child resides.
      (2) For purposes of subchapter XX of this chapter, any child who is described in paragraph (3) is deemed to be a minor child in a needy family under a State program funded under part A of this subchapter and deemed to be a recipient of assistance under such part.
      (3) A child described in this paragraph is any child-
      (A)G) who is a child described in subsection (a)(2) of this section, and
      (ii) with respect to whom an adoption assistance agreement is in effect under this section (whether or not adoption assistance payments are provided under the agreement or are being made under this section), including any such child who has been placed for adoption in accordance with applicable State and local law (whether or not an interlocutory or other judicial decree of adoption has been issued), or (B) with respect to whom foster care maintenance payments are being made under section 672 of this title.
      (4) For purposes of paragraphs (1) and (2), a child whose costs in a foster family home or child-care institution are covered by the foster care mainienance payments being made with respect to the child's minor parent, as provided in section 675(4)(B) of this title, shall be considered a child with respect to whom foster care maintenance payments are being made under section 672 of this title.
      (c) Children with special needs
      For purposes of this section, a child shall not be considered a child with special needs unless-
      (1) the State has determined that the child cannot or should not be returned to the home of his parents; and
      (2) the State had first determined (A) that there exists with respect to the child a specific factor or condition (such as his ethnic background, age, or membership in a minority or sibling group, or the presence of factors such as medical conditions or physical, mental, or emotional handicaps) because of which it is reasonable to conclude that such child cannot be placed with adoptive parents without providing adoption assistance under this section or medical assistance under subchapter XIX of this chapter, and (B) that, except where it would be against the best interests of the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of such parents as a foster child, a reasonable, but unsuccessful, effort has been made to place the child with appropriate adoptive parents without providing adoption assistance under this section or medical assistance under subchapter XIX of this chapter. (Emphasis added.)

      . The adoption date was established by Laws' testimony. Admin. Hrg. R. at 580.

      . Chronology taken from Decision Letter, Director of DHS, dated August 28, 2000. Record p. 534, 537-39.

      . The regulation in effect from April 14, 1999, to October 18, 1999, provided for assistance if:
      i. The child is SSI eligible and approved by DDSD (Developmental Disabilities Services Division) to receive Specialized Foster Care through the Home and Community Based Waiver Services (HCBWS) at the time the adoption is initiated and the time the adoption is finalized.
      ii. The child is adopted by his or her HCBWS specialized foster parent, who at the time of the adoption is certified by DDSD and has a current contract for HCBWS with the Oklahoma Health Care Authority (OHCA).
      OAC 340:75-15-128(b)(2)(D), effective from April 19, 1999, to October 18, 1999.

      . Decision Letter, Director of DHS, dated August 28, 2000. Record 534, 538-39.

      . Id.

      . Id.

      . Manual, 8.2D.4 (Question 1) concerning setting of rates of subsidy, responds in part,
      Unlike other public assistance programs in the Social Security Act, the title IV-E adoption assistance program is intended to encourage an action that will be a lifelong social benefit to certain children and not to meet short-term monetary needs during a crisis. Further, the adoptive parents' income is not relevant to the child's eligibility for the program. Title IV-E adoption assistance is not based upon a standard schedule of itemized needs and countable income.

      . "The primary goal of the title IV-E adoption assistance program is to provide financial support to families who adopt difficult-to-place children from the public child welfare system. These are children who otherwise would grow up in State foster care systems if a suitable adoptive parent could not be found." Manual, 8.2E, (Question 1).

      . This case recognizes the negotiable nature of payments. The State, while here citing the case with approval, has apparently failed to implement that which it therein approves-enlightened negotiation.

      . Section 7510-1.4 of Title 10 then provided in part:
      A. Whenever significant emotional ties have been established between a child and his foster parent or parents, and the foster parent or parents seek to adopt the child, the child may be certified as eligible for an adoption maintenance subsidy conditioned upon adoption of the child under applicable adoption procedures by the foster parent or parents.
      B. In all other cases, after reasonable efforts have been made and no appropriate adoptive family without the use of subsidy has been found for a child, the Department of Human Services shall certify the child as eligible for a subsidy in the event of adoption.


source: Caselaw Access Project

author: BENCH, Judge:

license: Public Domain

text:
    2003 UT App 373
    FIVE F, L.L.C., Plaintiff and Appellant, v. HERITAGE SAVINGS BANK, Defendant and Appellee.
    No. 20020088-CA.
    Court of Appeals of Utah.
    Nov. 6, 2003.
    Rehearing Denied Dec. 9, 2003.
    Brian W. Steffensen, Steffensen Law Office, Salt Lake City, for Appellant.
    James S. Jardine, Elaina M. Maragakis, Brent D. Wride, Ray Quinney & Nebeker, and George W. Pratt, Jones Waldo Holbrook & McDonough, Salt Lake City, for Appellee.
    Daniel W. Anderson, Fabian & Clendenin, Salt Lake City, for Amicus Curiae Utah Bankers Association.
    Before Judges JACKSON, BENCH, and GREENWOOD.
   OPINION

BENCH, Judge:

T1 Five F, L.L.C. (Five F) appeals from a final judgment granting a directed verdict in favor of Heritage Savings Bank (Heritage). The trial court determined, "under the facts of [the] case and as a matter of law," that Heritage owed Five F a fiduciary duty. The court then found that, despite such a duty, Heritage could not be held liable if it fulfilled its obligations under the terms of the parties' trust deed and adhered to the requirements of Utah's trust deed statute. See Utah Code Ann. §§ 57-1-~19 to -29 (2000). The court also determined that Five E's claims for unjust enrichment and for breach of the implied covenant of good faith and fair dealing did not defeat the directed verdict. We hold that Heritage's fiduciary duty did not require it to do more than follow the requirements of the trust deed and statute. We also find that Five F's claims for unjust enrichment and breach of the implied covenant of good faith and fair dealing are not viable in this instance. We therefore affirm.

BACKGROUND

12 Five F entered into a purchase agreement for forty-six acres of raw land in St. George, Utah for a price of $4.7 million. Five F agreed to pay earnest money of $10,000 down and then five monthly payments of $10,000. Thereafter, Five F was to pay $1,114,000 on September 15, 1996, and approximately $1 million in annual payments until the purchase price was paid in full. If Five F failed to make the September 15 payment, then it would forfeit the $60,000 paid as earnest money.

T3 In late August 1996, Five F approached Heritage for a $1.2 million loan in order to make the September 15 payment. As proposed collateral for the loan, Five F offered a 10.44 acre parcel from the forty-six acres. Before making the loan, Heritage ordered an appraisal of the parcel. Although the appraisal came in at $1,650,000, Heritage refused to approve the loan without additional collateral. As additional collateral, Five F offered two four-plexes, each appraised at $306,000.

T4 Five F executed a promissory note for the $1.2 million loan secured by a Trust Deed With Assignment of Rents on the parcel and the four-plexes. Under the note, Five F would make payments of $10,250 on November 1, 1996 and December 1, 1996, with the balance due on December 81, 1996. Under the trust deed, Heritage was the beneficiary and Five F was the trustor. As permitted by statute, Heritage also became the trustee. See Utah Code Ann. § 57-1-21(2) (2000).

15 Five F failed to pay off the note by December 31. Before Heritage could proceed to a foreclosure sale, Five F filed a Chapter 11 bankruptey petition. The Chapter 11 plan proposed by Five F provided that if certain conditions were not met, then Heritage could continue its foreclosure proceedings. When those conditions were not met, Heritage noticed the foreclosure sale of the 10.44 acre parcel.

T 6 In accordance with the trust deed statute, Heritage published the notice of sale. Three months before the sale, Heritage ordered another appraisal of the parcel, which indicated the parcel was worth $1,380,000.

17 Heritage's attorney conducted the foreclosure sale of the parcel. At the time of the sale, Heritage calculated that the total amount due and owing under the note (including costs and attorney fees) was $1,314,685.38. Heritage bid $1,090,000 for the parcel. As the only bidder, and thus the high bidder, Heritage obtained title to the parcel. The proceeds of the sale were first applied to the foreclosure costs and then to the outstanding debt, leaving a balance owing on the note of approximately $229,000.

{8 Heritage then noticed the foreclosure sale of one of the two four-plexes. Five F sought to enjoin that sale by filing a motion for a preliminary injunction, which the trial court denied. Five F then filed an Emergen-ey Motion for Temporary Stay with the Utah Supreme Court. This motion was also denied. Accordingly, the foreclosure sale of the four-plex continued. At the sale, Heritage again entered the high, and only, bid of $210,000 and acquired title to the four-plex.

T 9 Thereafter, Five F filed suit in district court. Five F asserted claims for breach of fiduciary duty, breach of contract, and unjust enrichment. The court denied Heritage's motion for summary judgment and the matter went to trial before a jury.

110 On the third day of trial, the trial court made a preliminary ruling that Heritage owed Five F a fiduciary duty by assuming the role of both trustee and beneficiary. Then, on the fourth and last day of trial, before submitting the case to the jury, the trial court ruled that neither the fiduciary duty owed by a trustee/beneficiary to a trustor, nor the implied covenant of good faith and fair dealing owed by a bank to a borrower, could require Heritage to do more than to comply with the provisions of the trust deed and adhere to the trust deed statute. Consequently, the trial court granted Heritage's motion for a directed verdict. Five F appeals.

ISSUES AND STANDARD OF REVIEW

111 Five F presents several issues on appeal: breach of fiduciary duty, violation of the implied covenant of good faith and fair dealing, and unjust enrichment. We must decide whether the trial court erred in directing a verdict in favor of Heritage on these issues.

112 "A trial court is justified in granting a directed verdict only if, examining all evidence in a light most favorable to the non-moving party, there is no competent evidence that would support a verdict in the non-moving party's favor." Merino v. Albertson's, Inc., 1999 UT 14, ¶ 3, 975 P.2d 467. We review a directed verdict under the same standard employed by the trial court. See id. (citing Management Comm. of Graystone Pines Homeowners Ass'n v. Graystone Pines, Inc., 652 P.2d 896, 898 (Utah 1982)).

ANALYSIS

13 In Utah, " '[t}rust deed' means a deed . conveying real property to a trustee in trust to secure the performance of an obligation of the trustor or other person named in the deed to a beneficiary." Utah Code Ann. § 57-1-19(8) (2000). The trustee is the party entrusted with the task of handling the foreclosure procedure in case of default. In this instance, the borrower, Five F, was the trustor, and the lender, Heritage, was the beneficiary. As permitted by statute, Heritage also assumed the role of trustee. See Utah Code Ann. § 57-1-21(2) (2000).

114 "The relationship [that] arises when a borrower secures his loan by trust deed has been the subject of considerable judicial comment." Blodgett v. Martsch, 590 P.2d 298, 302 (Utah 1978). In Blodgett, our supreme court explained that "(tlhe duty of the trustee under a trust deed is greater than the mere obligation to sell the pledged property in accordance with the default provision of the trust deed instrument, it is a duty to treat the trustor fairly and in accordance with a high punctilio of honor." Id. The supreme court explained that courts have a duty to closely examine trust deed foreclosures that are questioned because they are far simpler than mortgage foreclosures, which require the assistance of the court. See id. A trustee's duty to a trustor is "to act with reasonable diligence and good faith on [the trustor's] behalf consistent with [the trustee's] primary obligation to assure payment of the secured debt." Id. at 303.

1 15 Pursuant to Utah's trust deed statute, a trustee is given a power of sale "under which the trust property may be sold in the manner hereinafter provided, after a breach of an obligation for which the trust property is conveyed as security." Utah Code Ann. § 57-1-28 (2000) A trustee may not exercise the power of sale until the trustee files a notice of default, waits three months, and gives notice of the sale. See Utah Code Ann. § 57-1-24 (2000). As for noticing the sale, the trustee is required to "give written notice of the time and place of sale particularly describing the property to be sold[,]" publish the notice under specific cireumstances, post the notice under certain criteria, and hold the sale in a fixed manner. Utah Code Ann. § 57-1-25 (2000). After the sale has been properly noticed, "the trustee ... sell[s] the property at public auction to the highest bidder." Utah Code Ann. § 57-1-27 (2000). "Any person, including the beneficiary or trustee, may bid at the sale." Id. If there is only one bid, then it is the highest bid, and the trustee is required to accept it. See Thomas v. Johnson, 801 P.2d 186, 189 (Utah Ct.App.1990).

116 Five F does not allege that Heritage failed to comply with the trust deed statute and admitted as much at trial. As demonstrated above, Heritage fully complied with the requirements of the trust deed statute and its bid, as the only and highest bid, was accepted. Five F alleges that, because of Heritage's fiduciary duty, it was required to do more than to comply with the trust deed and the trust deed statute.

117 The case of First Security Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253 (Utah 1989), discusses the cireumstances in which, because of a fiduciary duty, a trustee owes a greater responsibility to a trustor than the trustee normally would. A "trust itself creates a duty between the trustee and the beneficiary. But the trustee's duty to the beneficiary does not imply that the trustee may ignore the trustor's rights and interests." Id. at 1256. The court explained that, in certain cireum-stances, "it is possible that the trustee is bound by a fiduciary duty to act in the interest of the trustor." Id. Such cireum-stances are as follows: (1) "where a trustor reposes its trust or confidence in the trustee and relies on the trustee's guidance," (2) "where the trustee could exercise extraordinary influence over the trustor," and (8) "where the trustee stands in a dominant position to the trustor." Id.

118 In the present case, the trial court did not directly consider the Banberry Crossing criteria in determining whether Heritage's fiduciary duty to Five F required Heritage to act in the interest of Five F. The facts must be evaluated under the Banberry Crossing criteria to ascertain whether Heritage's fiduciary duty is actionable in this instance.

T19 Banmberry Crossing is particularly helpful because it involved the same procedural posture as here-that of a directed verdict. In Banberry Crossing, our supreme court determined that a directed verdict was proper under those facts because there was "no evidence of fraud or a relationship that would create a[n actionable] fiduciary duty." Banberry Crossing, 780 P.2d at 1256. Likewise here, other than claiming that Heritage had "unilateral discretion" built into the agreement and intimating that Heritage had not dealt fairly with Five F, Five F has not established the existence of any of the Ban-berry Crossing criteria. In fact, Five F admitted that it had not relied on anything Heritage did for advice, that it was "wholly independent from Heritage," and that Heritage had no influence or control over Five F with respect to terminating the negotiations and seeking a loan from somewhere else. Moreover, Five F conceded that it was trying to rush the loan process to meet the September 15 deadline and that Heritage would have given additional time if Five F had requested it.

120 Clearly, Five F did not put forth sufficient evidence to make the Banberry Crossing criteria an issue for trial. Because Five F presented no evidence of a relationship that would create an actionable fiduciary duty under Banmberry Crossing, the directed verdict was properly granted.

¶21 Five F also claims that the trial court incorrectly directed a verdict on the implied covenant of good faith and fair dealing and unjust enrichment claims. The trial court made the following ruling:

Given the evidence in this case and which this jury would have to consider, the Court is of the opinion that the law does not contemplate that the bank can be found liable to the plaintiff for the breach of fiduciary duty or the breach of the implied covenant of good faith and fair dealing or for unjust enrichment when the bank's conduct is permitted under the law.

22 The court then directed a verdict in favor of Heritage. As further clarification, the following dialogue, with respect to the unjust enrichment claim, ensued:

MR. HATHAWAY [for Five FJ; Your Honor, I take it it [the directed verdict] pertains as well to the unjust enrichment claim.
THE JUDGE: I didn't mention the unjust enrichment claim. We've tried the case as a contract case.
MR. HATHAWAY: Yes.
THE JUDGE: And so I think the unjust enrichment claim would be moot at this point.
MR. HATHAWAY: All right. Thank you.
THE JUDGE: All right. And just so I'm clear, do you disagree with that, either, cither side?
MR. JARDINE: No, Your Honor.
MR. HATHAWAY: I just wanted that clarification. Thank you.

€23 We agree with the trial court that Heritage cannot be found liable for breaching the implied covenant of good faith and fair dealing because Heritage acted in strict conformity with both the trust deed and the trust deed statute. Although "every contract is subject to an implied covenant of good faith," Brehany v. Nordstrom, 812 P.2d 49, 55 (Utah 1991), here the trust deed statute directly governed the transaction and prescribed the rights and responsibilities of both parties in a fairly detailed manner. In essence, Heritage could not breach the implied covenant because Heritage strictly complied with the statute and the statute outlined the steps needed to ensure good faith and fair dealing. Cf. Olympus Hills Shopping Ctr. v. Smith's Food & Drug Ctrs., 889 P.2d 445, 450 (Utah Ct.App.1994) (finding, in the absence of a statute dictating the behavior of the parties, "parties who retain express power or discretion under a contract can exercise that power or discretion in such a way as to breach the covenant of good faith and fair dealing").

124 The trial court was also correct in directing a verdict in favor of Heritage on the unjust enrichment claim because Heritage had a legal remedy-breach of contract. There was no dispute that the trust deed was an enforceable contract and the case had been tried as a contract case. See Wood v. Utah Farm Bureau Ins. Co., 2001 UT App 35, ¶ 10, 19 P.3d 392 (finding that "recovery under an unjust enrichment theory is available only when 'no enforceable written or oral contract exists'" (citation omitted)). See also Desert Miriah, Inc. v. B & L Auto, Inc., 2000 UT 83, ¶ 12, 12 P.3d 580 ("[TIhe doctrine of unjust enrichment was specifically developed to address situations 'that did not fit within a particular legal standard but which nonetheless merited judicial intervention'" (citation omitted)); American Towers Owners Ass'n. v. CCI Mech., 930 P.2d 1182, 1193 (Utah 1996) ("The [unjust enrichment] doe-trine is designed to provide an equitable remedy where one does not exist at law. In other words, if a legal remedy is available, such as breach of an express contract, the law will not imply the equitable remedy of unjust enrichment"); Lysenko v. Sawaya, 1999 UT App 31, ¶ 13, 973 P.2d 445 ("[The unjust enrichment 'doctrine is designed to provide an equitable remedy [only] where one does not exist at law. In other words, if a legal remedy is available ... the law will not imply the equitable remedy of unjust enrichment? " (second and third alterations in original) (citation omitted)).

CONCLUSION

125 Five F presented no evidence of an actionable fiduciary duty under the Banberry Crossing criteria. Heritage complied with the terms of the trust deed and Utah's trust deed statute. The trial court was correct in granting a directed verdict in favor of Heritage. We therefore affirm.

T26 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and PAMELA T. GREENWOOD, Judge.

      . At some point prior to this, the parcel had been appraised at $1,825,000.

      . In 2001, this statute was amended to read, "'The trustee who is qualified under Subsection 57-1-21(1)(a)(i) or (iv) is given the power of sale," thus prohibiting the former practice of allowing "any depository institution" to have the power of sale. Utah Code Ann. § 57-1-23 (Supp.2003) (emphasis added). Therefore, under the current statute, Heritage could not exercise the power of sale.

      . Professor David Thomas, an expert witness for Heritage, explained that, in the absence of a fiduciary duty, the trustee normally accepts the highest bid unless the bid is so low as to "shock the conscience." Professor Thomas opined that, in this instance, Heritage's bid of $1,090,000 for a parcel that had been appraised at anywhere between $1,380,000 and $1,825,000 did not "'shock the conscience."

      . The Banberry Crossing court cited Blodgett v. Martsch, 590 P.2d 298, 302 (Utah 1978), to explain that "[o)bviously, a trust deed trustee may not ... defraud a trustor." First Security Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253, 1256 (Utah 1989).


author: KITE, Justice.

text:
    2003 WY 159
    Richard POKORNY and Julia Goldensohn, Appellants (Intervening Counterclaim Plaintiffs), and Snake River Holdings, LLC, Appellant (Defendant), v. Patrick D. SALAS and Kathleen L. Salas; Sal G. Giacinto and Linda T. Giacinto (Trustees); Donald L. Wadsworth and Gwenn E. Wadsworth (Trustees), Appellees (Plaintiffs), and Porcupine Creek Ranch Limited Liability Company; Hereford-Bally Ranch Limited Liability Company; Creed Law and Alta Clarene Law, Appellees (Intervening Plaintiffs).
    No. 02-241.
    Supreme Court of Wyoming.
    Dec. 12, 2003.

      Representing Appellant(s): Christopher Hawks of Christopher Hawks, P.C., Jackson, Wyoming.
    Representing Appellee(s): Peter F. Moyer, Jackson, Wyoming; David K. Larson and Matthew E. Turner of Mullikin, Larson & Swift, Jackson, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[T1] | This case concerns two easements in the Game Creek Plateau area of Teton County, Wyoming. Due to the area's topography, the easements provide the only viable access to various properties within the Game Creek Plateau. The original owners of a large portion of the land created the two easements to provide access to residential subdivisions in the area and to guarantee future access to the land they retained, which otherwise was inaccessible. Both appellants and appellees are successors in interest to the original owners, yet the former contend neither easement provides such access, while the latter argue both easements do just that. The district court held both easements provide access to all owners in the area. We affirm.

ISSUES

[12] The issues presented are: (1) Whether appellants are estopped by the doe-trines of collateral estoppel, res judicata and/or judicial estoppel from claiming that the 1972 right of way easement does not grant access rights to the appellees; and (2) Whether the 1978 reserved easement is appurtenant or in gross?

FACTS

The 1972 Easement

[T3] The original Game Creek Plateau landowners, Hugh and Donna Marie Soest (Soests), owned a large parcel of land contiguous to the only public access, the Game Creek Road. In 1972, the Soests granted a 60-foot wide right-of-way easement to Squaw Creek Ranches, Inc., a subdivision. Without the easement, the Squaw Creek Ranches property owners would have been landlocked. The easement also granted access to "any other person or persons, for his or their benefit and advantage, at all times freely to pass and repass ..." over and across Squaw Creek Road from the terminus of the Game Creek Road through lands owned by the Soests. Their land was ultimately divided into four separate contiguous parcels which lie south of the Game Creek Road terminus: Segment One, adjoining the road, the Squaw Creek Draw 40, the Reardon 40 and the Hayfields (see attached map, Appendix A). The easement terminated at the south end of the Squaw Creek Draw 40 property, and did not continue south to the remainder of the Soests' property (the Reardon 40 and the Hayfields).

The 1978 Easement

[T4] After granting the 1972 easement, the Soests began selling parcels of their land. A portion of Segment One, now called "The Horse Palace," was one of the first parcels to be sold and was conveyed to James and Patty Scott (Scotts) in 1974. In a 1978 warranty deed, the Soests conveyed forty acres to the Reardon group (Reardon 40). In a 1979 warranty deed, the Soests conveyed another forty acres to a different buyer (Squaw Creek Draw 40). The Reardon 40 is located just south of the Squaw Creek Draw 40 and north of the large tract of land retained by the Soests (Hayfields).

[15] In the Reardon 40 transaction, the Soests reserved for themselves an easement (the 1978 easement) to preserve access across the Reardon 40 to the Hayfields. This easement, together with the 1972 easement, provided access all the way from the (Game Creek Road, through Segment One, through the Squaw Creek Draw 40, and through the Reardon 40 to the retained Hay-fields. No other access to the Hayfields existed at the time the 1978 easement was created.

The 1981 Litigation

[T6] In 1981, litigation ensued concerning the 1972 easement (Scott v. Squaw Creek Ranches, Inc.). The Seotts, owners of the only land contiguous to the Game Creek Road, which was the singular public access to the Game Creek Plateau, sought quiet title to their land against all individuals using the 1972 easement who did not own property in the Squaw Creek Ranch subdivision, a grantee of the easement which is south of the Seotts' property. In other words, the Seotts sought a court ruling to the effect that only Squaw Creek property owners could use the 1972 easement, and all other property owners in the Game Creek Plateau area would be barred from using it, including the owners of the Hayfields and the other subdivisions in the area. The defendants in that 1981 litigation, who did not own property in Squaw Creek, argued the express terms of the 1972 easement granting access to "any other persons" provided them and all of the Game Creek Plateau residents access. Some of the appellants in this action who seek to defeat the 1972 easement are successors to those defendants who took the opposite position in the 1981 litigation.

[17] -At trial, the district court granted a directed verdiect motion and entered judgment in favor of the defendants. Although the Scotts filed a notice of appeal, the appeal was dismissed on February 1, 1982.

The Present Case

[18] Over fifteen years after the 1981 litigation ended, the current Hayfields Property Owners, apparently seeking to confirm their easement, requested that the appellants, landowners in the Reardon 40 and the Squaw Creek Draw 40, sign a document entitled "Confirmation." When the appellants refused to do so, the Hayfields Property Owners sued seeking a declaratory judgment that the easements allowed them access over and across the Squaw Creek Draw 40 and the Reardon 40, all the way through to the Hayfields. The appellants asserted the Hay-fields Property Owners did not have access under the 1972 easement because it was not intended for general use. They also contended the Hayfields Property Owners had no access across the Reardon 40 under the 1978 easement because it was not appurtenant to the Hayfields and terminated when the Soests sold their property.

[19] The parties filed cross motions for summary judgment on November 183, 2001. After a hearing on November 19, 2001, the district court entered an order granting the Hayfields Property Owners' motion for summary judgment finding that the 1972 easement granted access to the general public, which included the Hayfields Property Owners. Further, the court held the 1972 easement was confirmed by the 1981 judgment in Scott v. Squaw Creek Ranches, Inc. Thus, the appellants were barred by the doctrines of collateral estoppel and judicial estoppel from denying the Hayfields Property Owners and their heirs and successors access across the 1972 easement.

[110] As to the 1978 easement, the district court held it was a valid, enforceable easement appurtenant to the Hayfields. This appeal followed.

DISCUSSION

The 1972 Easement

[T11] The appellants claim the 1972 easement is not a public easement and its use is limited to successors in interest to the Squaw Creek Ranch subdivision which was specifically named as a grantee of the easement. Further, they argue this claim is not barred by judicial estoppel, collateral estoppel, or res judicata. Conversely, the Hayfields Property Owners argue that the 1972 easement is a public easement, and the doctrines of judicial estoppel, collateral estoppel, and/or res judicata do apply. For reasons set forth below, we need discuss only the latter two doctrines.

[T12] Collateral estoppel and res judicata are analogous, but not synonymous. Although they share a common interest in finality, the doctrines themselves are different. Tenorio v. State ex rel. Wyoming Workers' Compensation Div., 931 P.2d 234, 238 (Wyo.1997). We recently reiterated their differences:

In Eklund v. PRI Environmental, Inc., 2001 WY 55, ¶¶ 15-20, 25 P.3d 511, ¶¶ 15-20 (Wyo.2001), we extensively recognized that res judicata and collateral estoppel are related but distinet concepts.
Res judicata bars the relitigation of previously litigated claims or causes of action. Slavens v. Board of County Commissioners, 854 P.2d 683, 686 (Wyo.1993). Four factors are examined to determine whether the doctrine of res judicata applies: (1) identity in parties; (2) identity in subject matter; (8) the issues are the same and relate to the subject matter; and (4) the capacities of the persons are identical in reference to both the subject matter and the issues between them. Id. Collateral estoppel bars relitigation of previously litigated issues and involves an analysis of four similar factors: (1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (8) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Id. (Quoting 18 Charles Alan Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 4448 at 382-85 (1981)).

Polo Ranch Co. v. City of Cheyenne, 2003 WY 15, ¶ 12, 61 P.3d 1255, ¶ 12 (Wyo.2003).

[¥18] Collateral estoppel is issue preclusion, while res judicata is claim preclusion. Eklund v. PRI Environmental, Inc., 2001 WY 55, ¶ 15, 25 P.3d 511, ¶ 15 (Wyo.2001). The appellants' claims in this case are not, in their entirety, identical to the previous claims in the 1981 litigation. However, an issue decided in the prior adjudication is identical to an issue presented in this case and, therefore, collateral estoppel is applicable.

[114] The appellants argue the district court erred when it found the doctrine of collateral estoppel barred them from denying the successors in interest to the Hay-fields properties access over and across the 1972 easement. The appellants claim that because the district court granted a motion for a directed verdict in the 1981 litigation, their predecessors in interest were not given a full opportunity to present their case and, consequently, the issues were never fully heard or considered. Thus, according to the appellants, the district court should not have applied the doctrine of collateral estoppel. We disagree.

[115] The elements of collateral es-toppel are as follows: (1) the issue decided in the prior adjudication is identical with the issue presented in the present action; (2) the prior adjudication resulted in a judgment on the merits; (8) the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Eklund, ¶ 15.

[116] Here, the district court appropriately applied the doctrine because all of its elements were satisfied. First, the issue decided in Scott v. Squaw Creek Ranches, Inc. was identical to the issue appellants seek to raise in this lawsuit-whether the 1972 casement gave access to persons other than those in the Game Creek Ranch. The defendants' pretrial memorandum in the 1981 case reflects as much:

This case involves the use of a road which runs across Plaintiff's property (the Seott's property). Each of the Defendants own or have an interest in real property in the vicinity of the Scott's property. A written easement is the basis for the various Defendants' claim of a right to utilize the roadway for ingress and egress to their properties; with certain of the Defendants basing that claim on the fact that they are successors in interest to the named grantees in the easement and the remainder of said Defendants basing their claim on the right to use said roadway on the language in the easement referring to 'any other person or persons, for his own or their benefit and advantage, at all times freely to pass and repass on foot, or with animals, vehicles, loads or otherwise through and over' the road.

[117] Second, the 1981 litigation resulted in a judgment on the merits. The district court determined, after hearing the plaintiffs' evidence and testimony, that the defendants were entitled to a directed verdict. Directed verdicts are granted when all reasonable minds pondering the case could only come to the same conclusion the directed verdict contemplates. Halliburton Co. v. Claypoole, 868 P.2d 252, 256 (Wyo.1994); Barnes v. Fernandez, 526 P.2d 983, 985 (Wyo.1974); see also 19 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, Civil § 2524 at 544 (1990). In Town of Jackson v. Shaw, 569 P.2d 1246, 1250 (Wyo.1977), we said:

In reviewing the grant of a directed verdict by a trial court, consideration must be given to all evidence favorable to party against whom the motion is directed, as well as to all reasonable and legitimate inferences which might be drawn therefrom. McCarthy v. Croker, Wyo.1976, 549 P.2d 323; Barnes v. Fernandez, Wyo.1974, 526 P.2d 983; Brennan v. Laramie Newspapers, Inc., Wyo.1972, 493 P.2d 1044. Whether or not the evidence so viewed is sufficient to create an issue for the jury is solely a question of law to be answered by the trial court. That court must determine whether or not the evidence is such that, without weighing the credibility of the witnesses, or otherwise, considering the weight of the evidence, there is but one conclusion as to verdict which men of reason could reach. Town of Jackson v. Shaw, 569 P.2d at 1250.

At the directed verdict stage, the plaintiff is given all favorable inferences, yet is still unable to sustain his position. We agree with the jurisdictions that hold a directed verdict is indeed a judgment on the merits. See Casey v. Pennsylvania Asphalt Paving Co., 109 F. 744 (C.C.W.D.Pa.1901), affirmed in 114 F. 189, (C.C.A.3 Pa.1902), ([A] judgment on a directed verdict in a federal court, based upon full evidence, is not a mere judgment of nonsuit, but it is in all respects a judgment on the merits); see also, Sherman v. Benson, 1998 WL 799304; Latimer v. William Mueller & Son, Inc., 149 Mich.App. 620, 386 N.W.2d 618 (1986); Phipps v. Paley, 90 N.C.App. 170, 368 S.E.2d 21 (1988). After a directed verdict is granted, judgment is entered just as if both parties had litigated; and that judgment has the same force and effect as any other judgment.

[118] Both parties concede the third requirement. There is, indeed, privity between the parties to the 1981 litigation and the present case.

[8,91 [119] Fourth, and finally, the appellants' predecessors had a full and fair opportunity to litigate the issues in the prior litigation. They mistakenly argue that due to the directed verdict, there was no "full and fair opportunity" to litigate this issue in 1981. However, this factor does not require that the party actually receive a full trial. Rather, the requirement is that the party be presented with the opportunity to litigate. The appellants' predecessors were presented with such an opportunity. They answered the complaint, conducted discovery, and submitted pretrial memoranda. Although there was no transcript, we must presume the trial was a fair one. Where there is no transcript before the court on appeal, the regularity of the trial court's judgment and the competency of the evidence upon which that judgment is based must be presumed. Stadtfeld v. Stadtfeld, 920 P.2d 662, 663 (Wyo.1996). Although the appellants' predecessors were presented with the opportunity to litigate, they were unable to present a case sufficient to survive the directed verdict stage.

[120] The district court properly concluded that collateral estoppel applied. Thus, the appellants are collaterally estopped from asserting that the 1972 easement language does not grant access to the Hayfields. Because collateral estoppel is determinative on the 1972 easement issue, we decline to decide whether the doctrines of res judicata and judicial estoppel also apply.

The 1978 Easement

[121] The issue surrounding the 1978 easement is whether it is appurtenant or in gross. The appellants contend that the 1978 Warranty Deed from the original landowners to the Reardons "does not describe a benefited parcel," and the 1978 easement is therefore an easement in gross and thus was not assigned when the dominant estate was assigned. As a result, they argue the easement did not transfer to the current owners when they purchased the Hayfields property. The Hayfields Property Owners, on the other hand, contend the 1978 easement is appurtenant to the land because it was clearly intended to benefit the land retained by the original grantors of the easement and their successors; and, therefore, the 1978 easement did transfer to the current owners when the Hayfields were conveyed "subject to all easements."

[122] In Hasvold v. Park County School District No. 6, 2002 WY 65, ¶¶ 13-14, 45 P.3d 635, ¶¶ 13-14 (Wyo.2002), we distinguished between easements appurtenant and in gross:

" 'An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his use of the land." " Weber v. Johnston Fuel Liners, Inc., 519 P.2d 972, 975 (Wyo.1974) (quoting Restatement of Property § 453, at 2914 (1944)). In contrast, " 'an easement is in gross when it is not created to benefit or when it does not benefit the possessor of any tract of land in his use of it as such possessor' " Id. (quoting Restatement of Property, supra, § 454, at 2917). An easement will not be presumed to be in gross when it can fairly be construed to be appurtenant. Id. R.C.R., Inc., 978 P.2d at 586.

Wyoming law is consistent with the Restatement (Third) Property, which specifically details the differences between easements appurtenant and in gross as follows:

(1) Except where application of the rules stated in § 4.1 leads to a different result, the benefit of a servitude is:
(a) appurtenant to an interest in property if it serves a purpose that would be more useful to a successor to a property interest held by the original beneficiary of the servitude at the time the servitude was created than it would be to the original beneficiary after transfer of that interest to a successor;
(b) in gross if created in a person who held no property that benefited from the servitude, or if it serves a purpose that would be more useful to the original beneficiary than it would be to a successor to an interest in property held by the original beneficiary at the time the servitude was created[.]

Restatement (Third) Property (Servitudes) § 4.1 (2000).

{123] This Court has recognized a strong preference to construe an easement as appurtenant rather than in gross. Baker v. Pike, 2002 WY 34, ¶ 12, 41 P.3d 537, ¶ 12 (Wyo.2002). "When construing an easement, we seek to determine the intent of the parties to the easement ... and begin by attempting to glean the meaning of the easement from its language." R.C.R. Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 586 (Wyo.1999); See also Restatement (Third) Property (Servitudes) § 4.1 (2000). If the language of the easement is clear and unambiguous, we interpret the easement as a matter of law, without resorting to the. use of extrinsic evidence to determine the parties' intent. R.C.R., 978 P.2d at 586. If, however, the language is ambiguous, then the court looks to extrinsic evidence to ascertain the parties' intent. Hasvold, ¶ 13; R.C.R., Inc., 978 P.2d at 586; Edgecomb v. Lower Valley Power and Light, Inc., 922 P.2d 850, 855 (Wyo.1996). We conclude the language of the 1978 easement is clear and unambiguous. However, we do not arrive at that conclusion in a vacuum. To determine the intent of the parties, the context in which the easement was drafted must be considered.

The language of a contract is to be construed within the context in which it was written. In so doing, the court may look to the surrounding cireumstances, the subject matter and the purpose of the contract. The purpose of examining the context within which the contract was drawn, however, is limited to ascertaining the intent of the parties at the time the agreement was made. The context cannot be invoked to contradict the clear meaning of the language used, and those extraneous cireumstances do not justify a court in proceeding to insert therein a provision other than or different from that which the language used clearly indicates, and thereby, in effect, make a contract for the parties.

Snow v. Duxstad, 23 Wyo. 82, 147 P. 174 (1915).

[124] We do not purport to change or contradict the clear meaning of the language used in the 1978 easement. Taking into account, however, the surrounding circumstances of the 1978 Warranty Deed, such as when the Soests sold which parcels of land, and when each easement was granted, confirms the parties clearly intended the 1978 easement to be appurtenant. The 1978 Warranty Deed reserving the easement provides for a reservation "unto themselves [the Soestsl, their heirs, successors, and assigns, an easement for roadway purposes over and across the above-described property...." By 1978, the Soests started selling parcels of their land which were contiguous to the only public access to the area, while retaining other lands which required such access. Access through Segment One and the Squaw Creek Draw 40 had been granted with the 1972 easement. Without a similar right of way through the Reardon 40, however, access from the Game Creek Road to the Hay-fields ends at the Squaw Creek Draw 40. Looking at the four corners of the document in the context in which it was drafted compels the conclusion that the grantor of the easement intended it to be appurtenant to the Hayfields The appellants' own brief cites a Colorado case supporting this very result. "When an easement is created by a grant or reservation in a deed, the determination of whether the easement is appurtenant to a certain parcel of property or personal to a certain individual depends upon the intention of the parties as ascertained by reading the words of the deed in light of the attendant cireumstances." Westland Nursing Home, Inc. v. Benson, 33 Colo.App. 245, 517 P.2d 862 (1974). We agree.

[¥25] The present case has all of the earmarks of an easement appurtenant. To identify easements appurtenant, this Court established certain "badges" of an appurtenance which include: (1) the casement was created to benefit a specific tract of land; (2) the grant was for a perpetual right-of-way for ingress and egress; (8) the grantee has the right to inspect and maintain the easement; (4) the right is not limited to the possessor personally; (5) the grant expressly extends the right to the grantees, their heirs, executors, administrators, successors, assigns and legal representatives; and (6) the easement document does not contain any limitations on the transferability of the easement to future transfers of both the dominant and servient estates. Hasvold, ¶ 21.

[126] The 1978 easement language satisfies most of those badges. First, the only purpose of the easement was to assure the grantors access to their retained lands. See-ond, the grant was perpetual "... for roadway purposes ... said easement being a strip of land sixty (60) feet in width whose center line is the centerline of that presently existing graded road traversing the above described property." Third, the right is not limited only to the possessor of the land and the easement expressly states the reservation is not only for the original landowners, but for their "heirs, successors, and assigns." Fourth, the easement contains no limits on the transferability of the easement to future dominant and servient estate owners.

[127] The decisions of other courts support this interpretation. For instance, the Utah Supreme Court considered a case similar in facts to the instant one. The issue in Eirnst v. Allen was stated as follows: "Can the owner in fee of a parcel of land convey a part thereof and reserve from the part conveyed a right of way for herself, her heirs and assigns, over a strip contiguous to that retained by herself, unless the conveyance describes the land so retained by the grant- or?" Ernst v. Allen, 55 Utah 272, 184 P. 827, 829 (1919). The Ernst court discussed the differences between appurtenant easements and easements in gross and noted that when the original landowner granted the easement, she still owned other lands upon which she was residing, "land contiguous to the right of way and dependent upon it as a means of ingress and egress to and from the back portion of her premises." Id. at 830. The Utah court concluded:

It seems to us that this matter is too plain for controversy. The right of way in question, viewed in light of the surrounding circumstances, has all the earmarks of an easement appurtenant, and unless, as contended by appellant, it was necessary in the deed to describe the dominant tenement or land to which the right of way was appurtenant, the judgment should be affirmed as far as the right of way is concerned.

Id. Similarly, a New Mexico court stated:

In construing a grant, however, a court must consider the cireumstances surrounding it. "If the granting instrument does not specify whether the easement is appurtenant or in gross, the court decides from the surrounding cireumstances, but generally begins with the presumption that it is appurtenant." E. Rabin, Fundamentals of Real Property Law 434 (2d ed.1982). See Restatement of Property § 458 (1944); 28 C.J.S. Easements 4 (1941). See also Siferd v. Stambor, 5 Ohio App.2d 79, 214 N.E.2d 106 (1966) (whether easement is appurtenant must be determined from language used in deed, the surrounding cireum-stances at the time the right was created, and the intention of the parties at the time the deed was executed); Ernst v. Allen, 55 Utah 272, 184 P. 827 (1919) (an instrument attempting to create an easement should be read in light of surrounding cireum-stances, the situation of the parties and property involved; if the grant refers to no land to which the easement can be appurtenant, but such land in fact exists, that fact may be established to give effect to the words used).

Luevano v. Group One, 108 N.M. 774, 779 P.2d 552, 555 (1989).

[128] The only support the appellants offer in asserting that the 1978 easement is in gross is that the language of the 1978 Warranty Deed does not specifically describe a benefited or dominant parcel. However, they provide no authority that suggests an easement must do so or be deemed in gross. Instead, they hastily label the easement as in gross, and then proceed to argue whether in gross easements are assignable or not. That argument is misguided because the easement cannot be construed as in gross based on the clear language and the context within which it was written.

[129] We hold the 1978 easement was created for the benefit of the original landowners and their successors and, therefore, is appurtenant to the Hayfields property.

[¥ 30] Affirmed.

APPENDIX

      . The Game Creek Road is the "public' access road to the Game Creek Plateau area. While the record does not tell us the exact nature of the Game Creek Road, for purposes of this case, we will presume it is a public road.

      . It was argued in the summary judgment hearing that the easement was not the only route to the Hayfields. However, one suggested alternative route was a forest service trail that required a permit and was completely washed out and unusable. The other suggested route, the Porcupine Road, was not in existence in 1978.

      . The term directed verdict is now identified as judgment as a maiter of law. A motion for a directed verdict is procedurally identical to a motion for judgment as a matter of law under the current W.R.C.P. 50. Cargill, Inc. v. Mountain Cement Co., 891 P.2d 57, 62 (Wyo.1995).

      . Patrick D. Salas and Kathleen L, Salas, Sal G. Giacinto and Linda T. Giacinto (Trustees), Donald L. Wadsworth and Gwenn E. Wadsworth (Trustees), Appellees/Plaintiffs, and the Poreu-pine Creek Ranch Limited Liability Company; Hereford-Bally Ranch Limited Liability Company; Creed Law and Alta Clarene Law, Intervening Plaintif{s/Appellees.

      . Richard Pokorny and Julia Goldensohn, Intervening Counterclaim Plaintiffs, and Snake River Holdings, LLC, Defendant. (Game Creek Ranch; Squaw Creek Ranch; and Porcupine Properties, Appellants/Intervening Counterclaim Plaintifis, moved for voluntary dismissal after oral argument. With no objection from the appellees, those parties were dismissed from the case on November 18, 2003.)

      . The parties selected the adjective "public' to modify the word "easement." Technically, we are not deciding whether the easement is "public," but rather whether the easement is usable by a particular component of the public. Owsley v. Robinson, 2003 WY 33, ¶ 10, 65 P.3d 374, ¶ 10 (Wyo.2003) expounds on the crucial components of a technically public easement. In the instant case, there was no public dedication of an easement. Further, the easement in the present case is not being used in the same manner as areas typically regarded as public, such as streets, alleys, and parks. Rather, the easement is for a limited purpose.


author: GOLDEN, Justice.

text:
    2003 WY 160
    Dean MITCHELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-256.
    Supreme Court of Wyoming.
    Dec. 15, 2003.

      Representing Appellant: Kenneth M. Ko-ski, State Public Defender; Donna D. Do-monkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling; Senior Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[T1] Appellant Dean Mitchell was convicted by jury of third degree sexual assault and two counts of soliciting a minor to engage in illicit sexual relations. During the trial, the investigating police officer testified without objection that it appeared a sexual assault had occurred out of his jurisdiction. Mitchell contends this statement violated the rule against vouching for the credibility of the victim established in Whiteplume v. State, 841 P.2d 1332 (Wyo.1992). Appellee, the State of Wyoming, contends that this case is distinguishable from those Whitep-lume facts and reversal is not required.

[12] We agree that this case is distinguishable and affirm.

ISSUES

[13] Mitchell presents the following issue for our review:

Whether the rule prohibiting the vouching for the credibility of the "victim" was violated by law enforcement in Appellant's case?

The State rephrases the issue as:

Whether a police officer's testimony, allegedly vouching for the credibility of another witness, constitutes plain error.

FACTS

[T4] On November 10, 2001, twenty-three year old Mitchell and his sixteen-year-old male friend, LR., encountered three girls, thirteen year-old C.M., twelve year-old A.S., and thirteen year-old F.B., in downtown Sheridan. L.R. and C.M. knew each other, and the girls told the males of their plans to go skating that evening at Scotty's Skate Castle. Those plans changed after it was agreed that Mitchell and L.R. would pick up the girls at Scotty's after their parents dropped them off so that the five could be together.

[T5] About 7:00 p.m. that evening, the girls were dropped off at Scotty's, went inside, but did not pay to skate. When Mitchell and L.R. arrived a few minutes later, the girls entered the back seat of the car that Mitchell was driving and all left together. Mitchell drove to a local liquor store, and at least one of the girls gave Mitchell some money, and he bought a fifth of vodka that the group passed around and two of the girls drank. Mitchell drove the group to a school parking lot and kissed both F.B. and A.S. Mitchell then drove to an out-of-the way snowmobile parking lot and parked there.

[T6] At Mitchell's suggestion, C.M. and F.B. took off their shirts, and Mitchell engaged all three of the girls in kissing. He touched C.M. on her breasts and vaginal area and asked her to have sex with him or perform fellatio on him. C.M. refused him twice and got out of the car. Mitchell also touched A.S. on her breasts, exposed himself, and while she was seated on his lap, attempted to digitally penetrate her. Mitchell asked A.S. several times to perform fellatio on him, but she refused and also got out of the car. A.S. joined C.M., who was sitting on the road, and C.M. pretended to have been bitten by a snake so that Mitchell would take the girls back to Sheridan. Mitchell did return the group to Sheridan and parked in an alley behind the residence of F.B.'s foster parents.

[17] Officer King of the Sheridan Police Department pulled into the alley behind the vehicle and smelled alcohol on one of the girls. More officers joined him and learned that at least two of the girls had been drinking alcohol bought for them by Mitchell and Mitchell may have had sexual contact with the minor girls. Mitchell was arrested and the girls taken to the police station for further interviews.

[T8] For his conduct with C.M. and A.S., Mitchell was charged with two counts of third degree sexual assault and two counts of soliciting a minor to engage in illicit sexual relations. After a two-day trial, a jury con-vieted Mitchell of third degree sexual assault on C.M. and of soliciting both girls to engage in illicit sexual relations, but acquitted him of third degree sexual assault on A.S. Mitchell was sentenced to eight to ten years for the third degree sexual assault, a concurrent four to five year term for soliciting a sexual act from C.M., and a four to five year term for soliciting from A.S. to run consecutive to the other two sentences. This appeal followed.

DISCUSSION

[19] Relying solely on our decision in Whiteptume, Mitchell contends that error per se occurred when a testifying officer conveyed his opinion that Mitchell was guilty. During trial, the prosecution questioned an investigating officer, Officer Thompson, about the events that happened on the night that Mitchell was arrested. The prosecutor asked, "... and at that point in time what did you determine it would be appropriate to do?" Officer Thompson responded, "(alt that point I determined this had definitely occurred outside the city limits of Sheridan, and I believed that there was a sexual assault that had occurred. So, I was starting to make arrangements to call the Sheridan County Sheriff's Office to investigate it." Defense counsel did not object. While conceding that the prosecutor's question was not deliberately calculated to elicit improper testimony, Mitchell nevertheless contends that the experienced investigator's testimony violated the rule against opinion-of-guilt testimony established in Whiteplume.

[110] Whiteplume examined the impact of the following statement: "I listened to her story and made a determination that she had been raped." Whiteplume, 841 P.2d at 1339. We held that the conviction for sexual assault required reversal because an experienced law enforcement officer "volunteered" an opinion as to the guilt of the defendant and to the credibility of the victim under cireumstances that made it appear that it was not done inadvertently. The investigating officer had fifteen years of experience, 1,500 hours of training, and had investigated about seventy rapes. His education consisted of a bachelor's degree in psychology and a master's degree. Id. at 1889. The State's case was tenuous and the quality of the victim's testimony was deemed poor because it was not corroborated and was contradicted by some of the physical evidence. Id. "In measuring the quantum of harm caused by the error, we considered the strength of the prosecution's case against the accused." Id. at 1340. No physical evidence supported the guilt of the accused, and a close factual dispute existed which brought eredibility to the center of the controversy, i.e., whether the sexual encounter was consensual or an unwarranted assault. Id. In light of the particular cireum-stances of the Whiteptume case, we found it a "close one that truly calls upon the most careful exercise of delicate judicial judgment." Id. at 1340-41. Ultimately, we concluded that the officer did imply that he believed or held an opinion with respect to the victim's version of the events surrounding the assault. "He linked his 'rape determination' only with 'her story' We can construe his 'rape determination' as nothing less than his inferential vouching for the truth of the victim's testimony." Id. at 1340.

[¥11] Since Whiteplume, our review of issues concerning opinion testimony has developed the following rules. We apply an error-per-se standard when a prosecutor has improperly elicited an opinion of either defendant's guilt or the truthfulness of a witness. Taylor v. State, 2001 WY 13 ¶ 21, 17 P.3d 715, ¶ 21 (Wyo.2001). When the prosecutor's question is not a signal for the witness's credibility-opinion-testimony and defense counsel did not object at trial the plain error standard, not the per se error standard, applies. Dudley v. State, 951 P.2d 1176, 1178-79 (Wyo.1998). When a prosecutor does not seek an opinion but an investigating officer's testimony supplies one, we review the record to determine if the officer is implying that he believed or held an opinion with respect to the victim's version of the events surrounding the assault. Whitep-lume, 841 P.2d at 1339-40. If the officer intended to impliedly vouch for the truth of the victim's accusations, no corroborating evidence exists, and the central jury issue is the victim's credibility, we will find reversible error when our review of all of the cireum-stances demonstrates prejudice to the extent that our confidence in the verdict is undermined. Id. at 1340-41; Dudley, 951 P.2d at 1180.

[T12] Mitchell asserts that the cireum-stances in this case are identical to those in Whiteptume that led to reversal of that conviction because the opinion testimony materially prejudiced the defendant. Mitchell contends that the state's case was based entirely on the testimony of the four young witnesses, C.M., A.S., F.B., and LR., and allowing a law enforcement officer to vouch for the victims' credibility was particularly harmful to Mitchell because it would have carried significant weight with the jury. Mitchell points out that Officer Thompson had four years of experience and would have known that it was improper to make this particular statement in front of a jury. Mitchell claims that credibility of the witnesses was crucial since the defense theory that was argued at closing contended that the four teenagers had lied about the evening as demonstrated by many inconsistencies in their testimony, L.R.'s admission that his memory was "foggy," and facts showing that they had changed their stories following police interviews. Mitchell points to these inconsistencies, "foggy" memories, and the jury's acquittal on one count as cireumstances demonstrating the closeness of this case and that the officer's opinion testimony materially prejudiced him with the jury.

[T13] The State contends that the cireumstances are not identical to Whitep-tume, and our review of the record causes us to agree with this view. In Whiteplume, after reviewing all of the cireumstances, we concluded that the prosecutor had not intended to elicit an opinion of defendant's guilt or the victim's credibility, but because the officer was the first to testify, had fifteen years of experience and a master's degree, we had concerns that the officer's opinion testimony was deliberate rather than inadvertent. Whiteplume, 841 P.2d at 1339. Although we could not know this for certain, we did conclude that the officer's experience and education meant that the jury hearing that testimony would reasonably draw the conclusion that he believed her when she told him she had been raped and that belief supported her credibility. Id. Because the only issue in the Whiteplume case was whether sexual contact was consensual, we found that particular officer's statement under those particular facts undermined our confidence in the verdict and reversed. Id.

[114] Officer Thompson's testimony came after the testimony of the three minor girls who described Mitchell's actions with each and their observations of his actions with the other girls. L.R. testified about his observations and was followed by Officer King whose description of his investigation's progress was similar to that of Officer Thompson's description. King stated that the girls' reports of Mitchell's sexual contact had indicated to him that there had been "possible" sexual assaults. Officer Thompson then testified very briefly about his role that night. Our review indicates that his testimony was significant because it was Thompson who had talked with C.M. in the alley and had noticed that C.M. was not wearing a shirt under her coat and asked if she was wearing one; she answered no and indicated the shirt was in her coat pocket. A sheriff's deputy then testified after Officer Thompson and described Mitchell's statement to him about his activities with the girls that night. That deputy also noticed that C.M. was not wearing a shirt during her first interview, had later excused herself, and returned from the bathroom wearing a shirt.

[115] Officer Thompson is a four-year patrol officer with courtroom experience whose opinion might carry weight with a jury; however, under Whiteplume, this factor is not sufficient for determining reversible error occurred. The timing of his testimony was not significant since the jury had heard from other witnesses about the girls' allegations of criminal sexual contact. The four witnesses in the car with Mitchell that night provided testimony that consistently described sexual contact and solicitation. The jury had only to decide if these acts occurred; consent was not an issue. In addition to hearing fairly consistent stories about Mitchell's conduct, the jury had corroborating and physical evidence that sexual contact and solicitation occurred. The observations of each girl tended to corroborate the testimony of the others and two officers observed that C.M. was not wearing a shirt that evening soon after being with Mitchell although she had one with her. These relevant factors differ significantly from Whiteplume.

[116] Unlike the statement in Whitep-lume, Officer Thompson did not testify that after investigation he had determined that the victim had been raped. Officer Thompson provided a chronological explanation of the events and his actions that night that led to a sexual assault investigation. With considerable evidence already before it, the statement was unlikely to suggest to the jury that the officer believed that the victims were telling the truth about Mitchell's guilt. We, therefore, find no violation of the rule against vouching. On similar facts, we arrived at the same conclusion in Gomez v. State, 2003 WY 58 ¶ 9, 68 P.3d 1177, ¶ 9 (Wyo.2003), and we find that this case should be resolved in the same manner. Affirmed.

      . Wyo. Stat. Ann. § 6-2-304(a)(ii): (a) An actor commits sexual assault in the third degree if, under circumstances not constituting sexual assault in the first or second degree ...
      (ii) The actor is an adult and subjects a victim under the age of fourteen (14) years to sexual contact without inflicting sexual intrusion on the victim and without causing serious bodily injury to the victim[.]

      . Wyo. Stat. Ann. § 14-3-104; Except under circumstance constituting sexual assault in the first, second or third degree as defined by W.S. 6-2-302 through 6-2-304, anyone who solicits, procures or knowingly encourages anyone under the age of sixteen (16) years to engage in illicit sexual penetration or sexual intrusion as defined in W.S. 6-2-301 is guilty of a felony, and upon conviction shall be imprisoned for a term not more than five (5) years.