author: WILKINS, Justice:

text:
    2000 UT 59
    STATE of Utah, Plaintiff and Appellee, v. Stacey Lamar NELSON-WAGGONER, Defendant and Appellant.
    No. 980263.
    Supreme Court of Utah.
    July 11, 2000.

      Jan Graham, Att'y Gen., Thomas B. Brunker, Asst. Att'y Gen., Salt Lake City, and Don Linton, Logan, for plaintiff.
    Bel-Ami de Montreux, Kenneth R. Brown, Salt Lake City, and Shannon R. Demler, Logan, for defendant.
   WILKINS, Justice:

"[ 1 Defendant Stacey Lamar Nelson-Wag-goner appeals his conviction of rape, a first degree felony, on the ground that the trial court erred in admitting evidence of rapes he allegedly committed on other occasions with other victims. We affirm.

BACKGROUND

12 On March 24, 1997, defendant was charged with five counts of rape with five different victims, each occurring in Cache County between December 1996 and February 1997. On defendant's motion, the trial court ordered separate trials on each count.

13 Before the first trial, for the alleged rape of K.M., the State moved to admit evidence of defendant's prior crimes, wrongs, or acts under Utah Rule of Evidence 404(b). Specifically, the State wanted defendant's other accusers to testify to the similar circumstances of their alleged rapes in order to establish defendant's modus operandi, motive, preparation, intent, knowledge, and lack of mistake or accident, as well as to show K.M.'s lack of consent. In each of the five rapes charged, defendant allegedly (1) invited the victim to his dorm room at Utah State University (USU) on a pretense; (2) wore loose-fitting clothing that could easily be removed quickly; (8) locked the door to his dorm room before the alleged rape; (4) asked the victim to kiss his body before raping her; (5) committed the rape in that room; (6) penetrated the victim after forcing her legs over his shoulders, bending her body in half so her knees were near her head in a confining position that hurt and made it difficult for her to breathe or ery out for help; (7) told the victim to "enjoy the moment" or to stop crying and protesting because she was "ruining a beautiful thing"; and (8) told the victim that nothing had happened or would happen in the future and that everything was all right. In three of the five alleged rapes, (9) the victims were offered money. In four of the alleged rapes, (10) defendant increased the volume on his television or stereo system before the encounter. All five of the alleged rapes occurred within a ten-week period.

T4 The State argued that this evidence was not barred under rule 404(b) as construed in State v. Doporto, 935 P.2d 484 (Utah 1997), superseded by Utah R. Evid. 404(b) (as amended February 11, 1998), the law in effect at the time of trial. The trial court agreed that the circumstances of defendant's other alleged rapes were similar enough to "constitute a signature," a proper, noncharacter purpose under rule A04(b). However, the court also decided that under Doporto's construction and application of rule 403 of the Utah Rules of Evidence to cases involving rule 404(b) evidence, the evidence was inadmissible in the State's case-in-chief because it was more prejudicial than probative. The court further stated that other proof of the crime was available, such as the victim's testimony. The jury did not hear the' evidence of other "crimes, wrongs or acts" and acquitted defendant on the first charge of rape.

T5 The second trial resulted in defendant's conviction for the rape of E.G. and leads to this appeal. Prior to the second trial, rule 404(b) was amended to overrule the additional requirements imposed by Doporto for admitting evidence under rule 404(b) and to clarify that evidence of other crimes, wrongs, or acts must also meet the admissibility requirements of rules 402 and 408 of the Utah Rules of Evidence. See Utah R. Evid. 404(b) (as amended February 11, 1998); Utah R. Evid. 404 advisory committee's note. Again the State moved to admit evidence of the other alleged rapes committed by defendant to show defendant's lack of credibility, modus operandi, motive, plan, intent, and lack of mistake and to establish E.G.'s lack of consent, a pivotal element of the crime charged. This time the trial court applied the amended version of rule 404(b) rather than the Doporto analysis, which it had done in the first trial. In so doing, the court held that it would allow evidence in the second trial of the alleged rapes of K.M. and KT. to show defendant's modus operandi and ultimately to show that the sexual encounter was not consensual, so long as each victim's testimony met six of the ten factual similarities described above in paragraph three.

T6 The trial of the second rape count involved two sexual encounters between defendant and E.G., another USU student. In their opening statements, both the State and the defense said that KM., the first rape trial victim, and KT., a victim in another rape count, would discuss the cireumstances surrounding their alleged rapes. The State emphasized that this "bad acts" evidence would be presented "to show a method, a scheme, a plan that the defendant used to commit this crime," not to show that defendant had a propensity to commit rape. Defendant's attorney emphasized in his opening statement that defendant had been acquitted of the incident to which K.M. would testify, that the incident to which K.T. would testify had not yet been tried, and that the only issue in the instant trial was whether 6.G., not K.M. or KT., was raped.

T7 At trial, E.G. testified that at the time of the alleged rape she was a nineteen-year-old university student. On the day she met defendant in December 1996, he invited her to his dorm room to see pictures of his children. After showing her the pictures, defendant went to his door, turned off the light, and then kissed her. She stated: "[The next thing I know I was on his bed and he was trying to take off my shirt. I froze up. My hands froze, kind of like a tingling sensation in my whole body. I had been laid down on the bed...." E.G. testified that after he removed her pants, defendant put her legs over his shoulders and then forced his body on top of her with her legs above her head, her knees by her forehead. E.G. said that she could not feel her body: it tingled, as if it had fallen asleep, and her hands were frozen closed. She was unsure whether defendant actually penetrated her in this encounter. E.G. testified that she was very confused and was unsure about what had happened or if she was at fault. After returning home, E.G. bathed for several hours.

18 E.G. further testified that late on December 18 or early on December 19, hours before she was to fly home out of state, defendant called her and requested that she come to his dorm room to receive a Christmas present. When she arrived, defendant shut and locked the door behind her and gave her a Christmas tree ornament, a box of chocolates, and an envelope containing a condom that she was told not to open until she was on the plane home. After turning on his radio, defendant turned off the lights and asked her to sit next to him. She sat elsewhere, and the two had a brief conversation. She testified that defendant sat down next to her, began to kiss her, and tried to take off her shirt. She told defendant to stop, but he said, "You can't leave me like this" He stood up, pushed his loose fitting athletic shorts to his knees, grabbed her head, and told her to kiss his body. E.G. testified that she did not understand what that meant but that defendant explained it meant she should give him oral sex. E.G. tried to pull away several times and told defendant, "[Nlo, I [don't] want to." Defendant then forced E.G. to the bed and pulled her shorts down over her knees. In her words, he then "threw my legs over my head, and he raped me. I told him no, and he told me to stop erying. I said no." E.G. testified that, in this folded position, it was hard to breathe or speak and that she repeatedly told defendant to stop. He responded that she should be quiet, that she was ruining the moment, and that this was a beautiful thing.

19 Before the other two alleged victims, KM. and KT., testified, the court gave the following instruction to the jury on the appropriate use of the bad acts evidence:

You are going to hear evidence of other sexual assaults allegedly committed by the defendant. You may use the evidence only to help you decide whether Stacey Nelson-Waggoner had nonconsensual sexual intercourse with [E.G.] and for no other purpose. The law does not allow you to con-viet the defendant or to punish him simply because you believe he may have done other things, even bad things, not specifically charged as crimes in this case. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action and conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
You are instructed that Mr. Nelson-Waggoner was previously acquitted by a jury of the offense against [K.M.]. You are further instructed that Mr. Nelson-Wag-goner has not been tried for the offense alleged by [K.T.] and is presumed innocent until proven guilty.

T10 KM. then testified that she met defendant in early December 1996 while she was a student at USU. At the time, she was a nineteen-year-old music student at the university. The second time they met, defendant invited her to his room to discuss, she thought, the purchase of her stereo. Once there, defendant asked her to give him a back rub. As she did, defendant tried to kiss her, but she rejected him. He took off his loose athletic shorts and asked her to kiss his body. When she refused, he forced her head to his penis so she would give him oral sex. When she resisted, defendant laid her on the bed, removed her pants, forced her legs over his head, pushed her legs up until she was folded with her knees by her ears, and raped her. During the rape, defendant told her to stop erying because she was "ruining a beautiful moment" for him. Sometime after the night of the rape, defendant offered her $500 to make a car payment. KM. also testified that she and E.G. each had learned that the other had been raped and had discussed the incidents together.

{11 K.T. testified next. She said that she met defendant the first week of January 1997 in class. The next day, defendant invited her to his dorm room to see pictures of his daughters. While there, they began kissing. KT. attempted to leave, but defendant asked her to stay. They continued kissing, and defendant repeatedly tried to take off her shirt. K.T. told him she did not want to have sex with him, and defendant responded, "We don't have to have sex. We can just kiss and you can kiss my body and we can enjoy each other." KT. again attempted to leave, and defendant held her back, eventually laying her on the bed. KT. testified that defendant then pushed her legs up by her head: "He held my calves and kind of bended my knees up by my ears. Then he laid on me.... He was so heavy. My legs were hurting, my back was hurting." While K.T. cried and repeatedly resisted, defendant raped her. Defendant continued to call KT., but she avoided him. When they did see each other again, he offered her the use of his car, a gas card, $500 spending money, dinner or concert reservations, and his gold chain if she would "pamper" him. She refused.

¶ 12 Defendant testified to events similar to those described by E.G., except in the following aspects. According to him, the first time he met E.G., she flirted with him almost immediaﬁtely, kissed him first, and initiated both oral sex and intercourse. Defendant testified that E.G. had promised to purchase for him a pair of expensive tennis shoes as a Christmas present, and she called him to bring over the gift. Defendant stated he gave E.G. her present but was confused when she did not have a gift for him. According to him, E.G. gave him a "seductive" present in which she stripped, kissed him, allowed him to fondle her, and gave him oral sex. He testified that they did not engage in intercourse at that time. Upon E.G.'s return after the Christmas break, defendant informed her that his wife was pregnant with their third child and that they were going to attempt reconciliation. Thereafter, contact between defendant and E.G. broke off.

{13 Before closing arguments, the court repeated the instruction it had previously given the jury regarding the use of the bad acts evidence. Both parties discussed the bad acts evidence in closing arguments. The prosecutor stated:

[TJhe law says, and I implore you also, you cannot convict him because I think he has a propensity to commit rape. You have an instruction that says that. But you can consider ... as a fact, the method of operation and how these rapes were committed. You can consider his knowledge and intent and what the modus operandi tells you.

Defense counsel reminded the jury that defendant had been acquitted in K.M.'s case, and that "it was unfair to go into that [evidence] and confuse you folks with that circumstance." Defense counsel also reminded the jury that defendant had not yet been tried for K.T.'s alleged rape and that the only issue in the instant case was whether defendant raped E.G., not whether defendant raped K.M. or KT.

T14 The jury found defendant guilty of raping E.G., and this appeal followed.

ISSUE AND STANDARD OF REVIEW

¶ 15 Defendant's sole argument on appeal is that the trial court committed reversible error by admitting evidence of other rapes allegedly committed by defendant against other alleged victims.

I 16 In State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837, cert. denied, - U.S. -, 120 S.Ct. 1181, 145 L.Ed.2d 1088 (2000), we reconfirmed that we review a trial court's decision to admit evidence under rule 404(b) of the Utah Rules of Evidence under an abuse of discretion standard. We review the ree-ord to determine whether the admission of other bad acts evidence was "serupulously examined" by the trial judge "in the proper exercise of that discretion." Id.

ANALYSIS

117 Rule 404(b) governs the admissibility of bad acts evidence. It provides as follows:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In other words, evidence offered under this rule is admissible if it is relevant for a non-character purpose and meets the requirements of Rules 402 and 408.

Utah R. Evid. 404(b) (1998).

18 In determining whether bad acts evidence is admissible, the trial court must first determine whether the bad acts evidence is being offered for a proper, nonchar-acter purpose, such as one of those specifically listed in rule 404(b). See Decorso, 1999 UT 57 at 121, 998 P.2d 887. If the court resolves that the evidence is being offered for such a purpose, it proceeds with the remainder of the analysis as discussed below. See id. "However, if the court determines that the evidence is being offered only to show the defendant's propensity to commit crime, then it is inadmissible and must be excluded at that point." Id.

119 Second, the court must determine whether the bad acts evidence meets the requirements of rule 402, which permits admission of only relevant evidence. See Utah R. Evid. 402; Decorso, 1999 UT 57 at 1 22, 993 P.2d 837. Rule 401 of the Utah Rules of Evidence defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." "[Ujnless the other crimes[, wrongs, or bad acts] evidence tends to prove some fact that is material to the crime charged-other than the defendant's propensity to commit erime-it is irrelevant and should be excluded by the court pursuant to rule 402." Decorso, 1999 UT 57 at 22, 998 P.2d 887; accord State v. Forsyth, 641 P.2d 1172, 1176-77 (Utah 1982) (indicating that evidence is not admitted merely because it shows a common plan, scheme, manner of operation, or the like but that evidence of noncharacter purpose is admissible where it tends to prove some fact material to the crime charged).

T 20 Finally, the trial court must determine whether the bad acts evidence meets the requirements of rule 408 of the Utah Rules of Evidence. That rule provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Utah R. Evid. 403. In determining whether the bad acts or other crimes evidence meets rule 4083's requirements,

"a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility."

Decorso, 1999 UT 57 at 129, 998 P.2d 887 (quoting State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988)) (additional citations omitted).

I. RULE 404(b) ANALYSIS

A. Noncharacter Purpose

121 We next turn to the application of rule 404(b) to the instant case. We first examine whether the evidence was offered for a proper, noncharacter purpose.

22 The State offered the evidence of the other alleged rapes for the following non-character, nonpropensity purposes: to show (1) that defendant intended to rape E.G.; (2) that he had a set plan or scheme and specific modus operandi; and (3) that the sexual encounter was not a mistake or an accident (defendant knew what he was doing). Any one of these is a valid, noncharacter purpose to admit the evidence. In addition, the question of whether E.G. consented to sexual intercourse with defendant was the central issue of the case. Defendant conceded that he had sexual relations with E.G on one occasion. His defense was that their encounter was not rape because E.G. was the initiator and consented to having sexual intercourse.

€ 23 In conducting a serupulous examination of this evidence, the trial court determined that the other victims could testify to the cireumstances of the other alleged rapes only if the prosecution could demonstrate that each rape about which testimony would be offered included at least six of the ten characteristics listed. The trial court listed the ten factual characteristics mentioned above in paragraph three that were common to the other rapes defendant allegedly committed. The court considered several of these characteristics to be indicative of non-consensual sex and others neutral on that issue, depending on the context of the event. The trial court considered the victims' physical position during the alleged rapes as "the most significant" indicator of a lack of consent because, the court explained, the victims were describing a condition in which they were "folded essentially in half in an extremely uncomfortable position, making it difficult for the victim to breathe or resist or escap[el." Based on its examination of the proposed evidence, the trial court instructed the jury that it could consider the evidence in deciding whether E.G. consented to having sexual intercourse with defendant.

€24 Traditionally, evidence that a defendant raped others has been viewed solely as impermissible character evidence and has not been considered probative of whether a current victim was raped. Seq, e.g., Lovely v. United States, 169 F.2d 386, 390 (4th Cir. 1948). More recently, however, bad acts evidence has been admitted for the noncharac-ter purpose of proving the element of lack of consent in certain rape trials. See Annotation, Timothy E. Travers, Admissibility, in Rape Case, of Evidence that Accused Raped or Attempted to Rape Person Other than Prosecutrix, 2 AL.R Ath 330, § 6(a) (1980 & Supp.1999). This is especially true when a defendant allegedly obviates the victim's consent in a strikingly similar manner in several alleged rapes. See State v. Hill, 104 Ariz. 238, 450 P.2d 696, 697 (1969); People v. Gray, 259 Cal.App.2d 846, 66 Cal.Rptr. 654, 656-57 (1968). Courts allowing bad acts evidence in such cases realize that the evidence "is not conclusive proof that the [victim] did not consent." People v. Oliphant, 899 Mich. 472, 250 N.W.2d 448, 450 (1976). However, such evidence "is both relevant and material to the issue of consent and therefore properly admissible." Id.

125 In this case, the testimonies of KT. and KM. laid out a pattern of behavior in which defendant engaged that was consistent with the pattern of behavior in which he engaged with E.G. The details of this pattern of behavior and the consistency of it suggest that E.G. did not consent to sexual intercourse with defendant. E.G. testified that defendant forced her legs over his shoulders as he lay upon her, pushing her knees up near her ears, therefore folding her nearly in half, and that this position was painful and made it difficult for her to breathe, speak, or ery out. KT. and K.M. testified that defendant forced them into the same painful position. That defendant imposed this position on the women by force suggests the women did not consent to being in this position. It further suggests that the women did not consent to defendant's pattern of behavior-including intercourse-while he held them in this position. That defendant engaged in this distinctive behavior with both E.G. and the two witnesses, K.T. and K.M., makes this evidence probative as to the issue of consent. Therefore, the trial court did not exeeed its permitted range of discretion in finding that the evidence was offered for a proper, non-character purpose.

B. Rule 402 Amalysis

126 Bad acts evidence, like all evidence, must be relevant or it is inadmissible. See Utah R. Evid. 402. Rule 404(b) now specifically declares that it is subject to rule 402, which states: "All relevant evidence is admissible, except as otherwise provided.... Evidence which is not relevant is not admissible." Id. Rule 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Utah R. Evid. 401. Additionally, under this court's well-established case law, "unless the other crimes evidence tends to prove some fact that is material to the crime charged-other than the defendant's propensity to commit crime-it is irrelevant and should be excluded by the court pursuant to rule 402." State v. Decorso, 1999 UT 57, 122, 993 P.2d 837, cert. denied, - U.S. , 120 S.Ct. 1181, 145 L.Ed.2d 1088 (2000).

127 In this case, as discussed above, evidence of defendant's bad acts was relevant to whether the alleged victim consented to having sexual intercourse with defendant. Consent is one of the two elements of rape, see Utah Code Ann. § 76-5-402(1) (1999), and is material to the crime charged, see People v. McKibben, 862 P.2d 991, 998 (Colo. Ct.App.1993); Oliphant, 250 NW.2d at 449. Additionally, in this case, it was the only issue at trial, since defendant admitted to having sexual intercourse with E.G. on one occasion. While the bad acts evidence did not conclusively prove defendant raped E.G. by having sexual intercourse with her without her consent, the evidence made "the existence of [that material, consequential] fact . more probable ... than it would be without the evidence." Utah R. Evid. 401. Therefore, the evidence was relevant under rule 402.

C. Rule 408 Analysis

128 Finally, we examine whether the trial court acted within its discretion in determining that the bad acts evidence met the requirements of rule 403. In other words, we must determine whether the trial court abused its discretion by ruling that the probative value of KM.'s and K.T.'s testimonies was not substantially outweighed by the danger of unfair prejudice. As we discussed above, this court in Decorso considered the Shickles factors in making this determination. See Decorso, 1999 UT 57 at 129, 998 P.2d 837. We also apply the Shickles factors to the facts of this case to make this determination.

€ 29 The Shickles factors that seem particularly important here are "the similarities between the crimes" and "the interval of time that has elapsed between the crimes." Shickles, 760 P.2d at 295-96. First, as discussed in detail above, there were significant and striking similarities in the manner in which defendant carried out E.G.'s rape and the manner in which he allegedly carried out the other rapes. Second, the time between all of the incidents was a brief ten weeks. See Decorso, 1999 UT 57 at ¶ 32, 993 P.2d 837 (calling seven-month interval "relatively short"). The combination of. these two factors makes the bad acts evidence in this case highly probative. As one court stated, "[P Jroximity in time combined with similarity in type of erime virtually guarantees admittance of prior bad acts evidence." United States v. Drew, 894 F.2d 965, 970 (8th Cir.1990). The probative value of the combination of these two factors is highlighted in People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443, 445-49 (1976), where evidence of three separate alleged rapes, similar in method and occurring within a period of five months, was found admissible in another rape trial.

1 30 Most of the other Shickles factors also show that the probative value of the bad acts evidence is not substantially outweighed by the danger of unfair prejudice in this case. The need for the bad acts evidence was great; without it, the trial resolved into a contest of credibility between defendant and E.G. In addition, no alternative evidence regarding consent existed other than E.G.'s and defendant's. directly conflicting testimonies. Furthermore, the bad acts evidence in this case was not the type of evidence that would arouse the jury to "overmastering hostility."

131 Defendant makes the valid argument that K.M.'s bad acts testimony was suspect because defendant had already been acquitted of the alleged rape to which she testified and because she and E.G. had discussed their rapes before reporting them and testifying. However, because the other Shickles factors firmly establish that the probative value of the bad acts evidence in this case is not substantially outweighed by the danger of unfair prejudice, the fact that there are deficiencies in that evidence does not make it inadmissible. These weaknesses were discussed during trial. The jury was aware of them and presumably took them into account when weighing the evidence. Therefore, the bad acts evidence was admissible under rule 408.

CONCLUSION

¶ 32 The trial court did not abuse its discretion in admitting the bad acts evidence in this case. It was offered for a proper, non-character purpose, it was relevant, and its probative value was not substantially outweighed by the danger of unfair prejudice. Defendant's conviction is affirmed.

T 33 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURHAM, and Justice DURRANT concur in Justice WILKINS opinion.

      . At the time of the trial of the first rape count, rule 404(b) provided:
      Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
      Utah R. Evid. 404(b) (1997).

      . Doporto held that to
      assure the integrity of the trial process, ... evidence of prior crimes is presumed to be inadmissible and that, prior to admitting it, the trial court must find that (1) there is a necessity for the prior crime evidence, (2) it is highly probative of a material issue of the crime charged, and (3) its special probativeness and the necessity for it outweigh its prejudicial effect. j
      State v. Doporto, 935 P.2d 484, 490 (Utah 1997), superseded by Utah R. Evid. 404(b) (as amended February 11, 1998). .

      . The February 11, 1998 amendment added the following line to the end of rule 404(b): "In other words, evidence offered under this rule is admissible if it is relevant for a non-character purpose and meets the requirements of Rules 402 and 403." Utah R. Evid. 404(b) (1998).

      . We repeat our recent note in Rivera v. State Farm Mutual Automobile Insurance Co.: The phrase "abuse of discretion" has come into common usage in review of judicial proceedings. Although it is seen by appellate courts as an efficient way of describing a more complex concept, it has also come to be seen by many as offensive. The phrase is used here simply to be consistent with prior case law regarding the standard of review to be applied to the trial court's actions. When a trial court abuses its discretion, it has exceeded the range of discretion allowed for the particular act under review. When it does not abuse its discretion, it has stayed within the permitted range of discretion allowed. Use of the phrase "abuse of discretion" should not be misread to imply a conscious and intentional violation of the permitted discretion by the trial judge. Although such a willful disregard of the standards to be applied by the trial judge happens occasionally, it is certainly not the rule, and our use of "abuse" of discretion should not be read to imply such wrongful intent. We use "exceed the permitted range of discretion" and "abuse of discretion" interchangeably, meaning to describe exactly the same condition. 2000 UT 36, 17 n. 2, 1 P.3d 539.

      . Although defendant urges us to examine the trial court's decision "closely" and grant it "limited deference" as we have done in the past, see State v. Doporto, 935 P.2d 484, 489-90 (Utah 1997), superseded by Utah R. Evid. 404(b) (as amended February 11, 1998); State v. Pearson, 943 P.2d 1347, 1351 (Utah 1997), we have recently announced that we will no longer do so, see State v. Decorso, 1999 UT 57, 1114-18, 993 P.2d 837, cert. denied, - U.S. --, 120 S.Ct. 1181, 145 L.Ed.2d 1088 (2000).

      . We apply rule 404(b) as it existed at the time of the second trial, the amended version of rule 404(b). See Utah R. Evid. 404(b) (as amended February 11, 1998); Decorso, 1999 UT 57 at I 26, 993 P.2d 837 (applying rule 404(b) as it existed at time of trial, which was pre-Doporto law).

      . Section 76-5-402 provides:
      (1) A person commits rape when the actor has sexual intercourse with another person without the victim's consent.
      (2) This section applies whether or not the actor is married to the victim.
      (3) Rape is a felony of the first degree.
      Utah Code Ann. § 76-5-402 (1999).

      . While the trial court did not make a specific finding that evidence of the other rapes was admissible under rule 403, that inference follows from the fact that it ruled the evidence admissible in the second trial.

      . The factors Shickles recommends a court examine in determining the admissibility of evidence under rule 404(b) include the following:
      the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.
      State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988).


source: Caselaw Access Project

author: HOWE, Chief Justice:

license: Public Domain

text:
    2000 UT 61
    Lloyd G. JONES and Rose J. Jones, trustees of the KKAMMS Trust; Wayne H. Jones and Elma W. Jones, trustees of the KLABDS Trust; Quinn Chamberlain, an individual; and Sylvia J. Chamberlain, an individual, Plaintiffs and Appellants, v. ERA BROKERS CONSOLIDATED, a Utah corporation; Scholzen Products Company, Inc., a Utah corporation; Interstate Rock Products, a Utah corporation; Bilt Rite Construction, Inc., d/b/a All Vinyl Fencing, a dissolved Utah corporation; and John Does 1-10, Defendants and Appellees.
    No. 981771.
    Supreme Court of Utah.
    Aug. 4, 2000.
    V. Lowry Snow, Lewis P. Reece, Duane L. Ostler, St. George, for plaintiffs.
    Ronald W. Thompson, Stephen H. Urgu-hart, St. George, for defendants.
   HOWE, Chief Justice:

INTRODUCTION

11 Plaintiffs Lloyd G. Jones and Rose J. Jones, trustees of the KKAMMS Trust; Wayne H. Jones and Elma W. Jones, trustees of the KLABDS Trust; Quinn Chamberlain; and Sylvia J. Chamberlain (collectively the Joneses) appeal from the trial court's grant of summary judgment in favor of defendant Interstate Rock Products, Inc. (IRP). The Joneses contend that the trial court erred in awarding IRP approximately $107,000 of the surplus proceeds from a nonjudicial foreclosure sale made pursuant to Utah Code Ann. § 57-1-29 (Supp.1999).

BACKGROUND

{2 On March 6, 1996, the Joneses conveyed 240 acres of real property (the property) near Toquerville, Utah, to CFH Development Company, L.C. (CFH) in exchange for a purchase money deed of trust and a trust deed note. The Joneses recorded the deed of trust on March 18, 1996, in Washington County, Utah. Eagle Mortgage Company (Eagle) loaned CFH money to develop the property; again, CFH secured its promissory note by a deed of trust, which Eagle recorded subsequent to the Joneses' deed of trust. As part of the loan agreement between CFH and Eagle, the Joneses signed a subordination agreement wherein they agreed to subordinate their first trust deed position to Eagle, thereby granting Eagle's trust deed first priority. The subordination agreement was also recorded.

T3 CFH apparently intended to develop the property in different phases, and on June 20, 1996, contracted with IRP to construct various improvements on a part of it known as "Cholla Creek, Phase I located in the Town of Toquerville, Utah." IRP began construction on Phase I, but CFH failed to timely pay IRP and incurred a substantial debt to it before the project was completed. In addition, CFH defaulted on its promissory note to Eagle on or about April 11, 1997.

T4 Approximately one month after CFH's default, the parties to the development project (including CFH, the Joneses, Eagle, IRP, and the city of Toquerville) entered a construction agreement wherein IRP agreed to continue work on the project in return for certain assurances of payment.

15 After the parties entered the construction agreement and before IRP had been fully compensated for work done, Eagle pursued a nonjudicial foreclosure on the property that resulted in a foreclosure sale on December 29, 1997. Upon sale of the property, Eagle's first priority lien was satisfied. The surplus amount of $174,474.65 was then deposited with the clerk of the Fifth District Court pending determination of the person or persons legally entitled to it pursuant to section 57-1-29.

1 6 The Joneses filed this action for declaratory relief, contending that inasmuch as Eagle's claim as primary lienholder had been satisfied, the Joneses' claim to the proceeds was now superior to all other creditors. IRP filed a counterclaim for the excess funds, contending that because it was still owed $107,482.78 for work done on the project, IRP was legally entitled to the funds pursuant to the construction agreement. IRP moved for summary judgment on its counterclaim, contending the construction agreement clearly provided that proceeds from the project would be paid to IRP before being paid to the Joneses, even in the event of foreclosure. The Joneses contested IRP's interpretation of the construction agreement, asserting that it simply did not provide for payment to anyone in the event of foreclosure. The trial court granted IRP's motion for summary judgment, finding:

The language of paragraph le of the Agreement is not a model of clarity, but the intent of the parties to the Agreement, including [the Joneses], is sufficiently clear on one point: In order to avoid an immediate collapse of CFH's project, IRP would continue work and be assured of being paid for past and future work, if not fully paid from other sources, from the proceeds of sale of the property prior to any disbursement to CFH or [the Joneses] .... This Court concludes that [the Joneses' secured] interest and claim to such proceeds were, in part, bargained away and made subject to [their] contractual obligation to IRP, and the Court considers the Agreement to have obligated [the Joneses] to allow IRP to be paid from the surplus proceeds prior to [the Joneses] receiving any disbursement.

T7 The Joneses appeal from the trial court's judgment, contending that the court incorrectly interpreted the construction agreement and thus erred in awarding IRP $107,000 of the surplus proceeds of the foreclosure sale.

STANDARD OF REVIEW

18 Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(e), Copper State Leasing Co. v. Blacker Appliance & Furniture Co., 770 P.2d 88, 89 (Utah 1988). We review a trial court's grant of summary judgment for correctness, giving no deference to its conclusions of law. See Plateau Mining Co. v. Utah Div. of State Lands & Forestry, 802 P.2d 720, 725 (Utah 1990).

ANALYSIS

19 Disposition of the proceeds of a trustee's sale is governed by section 57-1-29 of the Utah Code, which provides in pertinent part that "[the trustee shall apply the proceeds ... first, to the costs and expenses of exercising the power of sale and of the sale . second, to payment of the obligation secured by the trust deed, and the balance, if any, to the person or persons legally entitled to the proceeds." Eagle, as the holder of the priority trust deed, appropriately received the first disbursement of the proceeds. The balance was then to be given to "the person or persons legally entitled to the proceeds." Id. The Joneses assert that the trial court erred in determining that "the person or persons" was IRP.

110 We determined in Randall v. Valley Title, 681 P.2d 219, 221 (Utah 1984), that "[allthough § 57-1-29 does not specifically mention junior trust deeds or lienholders, the surplus from the sale stands in the place of the foreclosed real estate and is subject to the same liens and interests that were attached to it." Thus to determine the persons legally entitled to the proceeds of the foreclosure sale as between IRP and the Joneses, we must determine their interests in the property before foreclosure.

111 Before foreclosure, the Joneses held the second priority position on the property by virtue of their trust deed, subject only to any provisions to the contrary in the parties' construction agreement. IRP's pre-foreclo-sure interest in the property consists only of those rights bargained for in the construction agreement. Because the Joneses hold a priority interest in the property, TRP is entitled to judgment as a matter of law only if, as the district court found, the Joneses' "[secured] interest and claim to [the] proceeds were, in part, bargained away and made subject to [their] contractual obligation to IRP."

112 We now review the trial court's interpretation of the contract to determine whether the Joneses did indeed "bargain away" their priority to the proceeds. In our review of the court's decision, "Iwle accord [its] interpretation of [the] contract no deference and review it for correctness." Aquagen Int'l, Inc. v. Calrae Trust, 972 P.2d 411, 413 (Utah 1998); see also Gibbs M. Smith, Inc. v. United States Fidelity & Guar. Co., 949 P.2d 337, 340 (Utah 1997) (@'Questions of contract interpretation not requiring resort to extrinsic evidence are matters of law, and on such questions we accord the trial court's interpretation no presumption of correctness. ") (quoting Zions First Nat'l Bank v. National Am. Title Ins., 749 P.2d 651, 658 (Utah 1988)). We look to the writing itself to ascertain the parties' intentions, and we consider " '[elach contract provision ... in relation to all of the others, with a view toward giving effect to all and ignoring none'" Plateau Mining Co., 802 P.2d at 725 (quoting Utah Valley Bank v. Tanner, 636 P.2d 1060, 1061-62 (Utah 1981)); see also Willard Pease Oil & Gas Co. v. Pioneer Oil & Gas Co., 899 P.2d 766, 770 (Utah 1995).

{13 The parties' agreement provided IRP several assurances of payment. First, CFH was to release to IRP lots eleven and thirty-two of the proposed subdivision, which IRP would then sell to reduce CFS's indebtedness to IRP. Second, certain monies held in an escrow account were to be disbursed to IRP to further reduce the amount owed. The final assurance, which is contained in paragraph 1(e) of the construction agreement and the meaning of which is contested, provides:

That any other monies owed to IRP after completion of the project not satisfied by proceeds earned from the sale of the entire project, proceeds from the sale of Lot 11 and Lot 32, and the amount paid from Ken's Construction Control shall be paid to IRP upon the sale of each lot by pro rata applying the amount of the lot sale and the amount of money owed by the number of lots in the subdivision less the two lots IRP will have received, and they will receive a partial payment on each lot out of escrow for the sale on each lot, prior to any disbursement to CFH, or Jones. For example, if there are 58 lots and the remaining amount due is $58,000.00, $1,000.00 plus acerued interest at 10% would be paid on each lot.

(Emphasis added.)

114 Paragraph five of the construction agreement reaffirms that CFH and the Joneses agreed that any monies still owed to IRP would be paid "from the sale of each lot as set forth herein."

{15 It is IRP's position that because, under the terms of paragraph 1(e), IRP would have received payment from the proceeds of the sale of the lots before the Joneses if the property had not been foreclosed upon, IRP retains the same right to priority payment upon foreclosure according to our decision in Randall. IRP arrives at this conclusion by defining "sale" in paragraph 1(e) as any type of sale-whether in the ordinary course of business or through foreclosure. If "sale" refers to any type of sale, including foreclosure, then IRP would indeed be entitled to receive the proceeds of a foreclosure sale "prior to any disbursement to CFH .or Jones" as the agreement provides.

T16 However, we disagree with IRP's characterization of the term "sale" and thus the rights bargained for in the agreement. Looking at the terms of the contract as a whole and giving meaning to each provision, as we must do, see Plateau Mining Co., 802 P.2d at 725, it is clear that the parties distinguished a sale in the ordinary course of business from a foreclosure sale. While paragraph 1(e) explains how IRP was to be paid if the property was sold in the ordinary course of business, paragraphs three and four provide how IRP was to be protected in the event of foreclosure on the property:

3. Eagle agrees to forebear filing any notice of default or foreclosure proceedings until after June 12, 1997, so long as IRP completes the construction by June 1, 1997.
4. Eagle agrees to give IRP the first option, prior to foreclosure sale, to purchase their secur[ed] interest in the property developed by CFH known as the Cholla Creek Development for the balance owed by CFH to Eagle at that time consistent with the terms of Eagle's securitly] agreement.

11 17 Not only does the agreement not provide for payment to IRP in the event of foreclosure, but paragraph four clearly shows the parties intended that IRP's interests would be protected upon foreclosure only if it purchased Eagle's secured interest in the property. In other words, the agreement did not grant IRP any rights or interests in the property that survived the foreclosure sale because it did not exercise its option to purchase Eagle's secured interest. Any other interpretation of the contract would make the "option" provision unnecessary. See Dixon v. Pro Image Inc., 1999 UT 89, ¶ 14, 987 P.2d 48 (holding that courts should read a contract as a whole, giving effect to each provision); Nielsen v. O'Reilly, 848 P.2d 664, 665 (Utah 1992) (same).

118 Such a result may seem unjust. However, as paragraphs three and four of the agreement illustrate, IRP was aware of the possibility of foreclosure and 'could have protected itself either by ensuring that the contract granted it rights to foreclosure proceeds or by purchasing Eagle's secured interest. We cannot now go back and do for IRP what it failed to do for itself. See Provo City Corp. v. Nielson Scott Co., 603 P.2d 803, 806 (Utah 1979) (holding that a court cannot rewrite an unambiguous contract); see also Rio Algom Corp. v. Jimco Ltd., 618 P.2d 497, 505 (Utah 1980) (holding that a court cannot write for the parties a better contract than they wrote).

CONCLUSION

19 We hold that the excess proceeds of the foreclosure sale belong to the Joneses. 'Before the foreclosure, the Joneses held the second priority interest in the property and that interest survived foreclosure. Because the parties' agreement did not provide for payment to IRP before the Joneses in the event of foreclosure, IRP did not own any interest in the sale proceeds. We reverse the decision of the trial court.

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

      . This section has not been materially altered since its enactment in 1961.


text:
    2000 UT 62
    STATE of Utah, Plaintiff and Appellee, v. Donald VETETO, Defendant and Appellant.
    No. 981753.
    Supreme Court of Utah.
    Aug. 8, 2000.

      Jan Graham, Att'y Gen., J. Frederic Voros, Jr., Asst. Att'y Gen., Salt Lake City, and Matthew B. Jube, Provo, for plaintiff.
    Margaret P. Lindsay, Provo, for defendant.
   WILKINS, Justice:

€ 1 Defendant Donald Veteto appeals from convictions for aggravated burglary, a first degree felony, aggravated robbery, a first degree felony, and possession of a firearm by a restricted person, a third degree felony. We affirm, but remand for the limited purpose of inclusion of the required findings on the record regarding defendant's objections to the presentence investigation report, pursuant to Utah Code Ann. § 77-18-1(6)(a) (Supp.1999).

BACKGROUND

12 On April 6, 1998, shortly after noon, Kornya French placed a 911 telephone call indicating that defendant and five or six companions had invaded her home in Pleasant Grove, Utah. She gave her address and described the approximate number and the gender of the invaders. She also said that handguns had been used and that the intruders left in three vehicles: a green Chevrolet pickup truck, a blue Chevrolet 8-10 truck, and a maroon passenger car. Officer Fly-gare received the dispatch call. He visited French at her home, and while French was providing Officer Flygare with information about the intruders, a green truck drove by which French pointed out as being the green truck she had seen in front of her home when the suspects first arrived. Officer Flygare broadcast the description and approximate location of the green truck, asking that it be stopped in connection with the aggravated burglary. Another officer, Officer Tauffer, pursued and stopped the truck to question the driver about the incident.

I 3 The sole occupant of the truck, Tiffance Davis, told Officer Tauffer that earlier that morning one of defendant's companions, Jason Kohl, had asked her to show him where French lived. She agreed and drove down the street to French's apartment with Kohl, Veteto, and Pettingill and the group of individuals that were with them, following in their vehicles. After pointing out French's apartment, Davis left and went back to her own home. Approximately ten minutes passed before Kohl and the others returned to Davis' house. Davis saw guns in both Kobl's and Veteto's hands at that time. It was shortly thereafter that Davis left her house and was stopped by the officers.

T4 Davis told the officers that Kohl was driving a blue truck and that another of the companions had a maroon car. She also told the officer that the group was currently at Davis' house. Officer Tauffer broadcast this information over his police radio. The officers followed Davis toward her residence. While on the way, the officers saw a blue truck and a maroon car driving in the opposite direction. Officer Eastman stopped Kohl's blue truck, which was occupied by Kohl, Veteto, and Candace Carter. The officers observed two guns in the bed of the truck. In the maroon car, officers found four other companions, including Frank Pettingill. The officers found three handguns in the second vehicle.

15 Defendant Veteto was charged with aggravated burglary of a dwelling, aggravated robbery, and possession of a firearm by a restricted person. He was tried with Kohl and Pettingill in the same proceeding before the same jury. All three were convicted of aggravated burglary. Kohl and Veteto were convicted of possession of a firearm by a restricted person. Veteto was also convicted of aggravated robbery.

T6 The trial court sentenced Veteto to concurrent statutory terms at the Utah State Prison. In addition, the trial court determined that the group crime penalty enhancement statute, Utah Code Ann. § 76-3-208.1 (Supp.1999), was applicable and imposed an additional term of four years. Veteto appeals.

17 Veteto raises three arguments on appeal: (1) The trial court erred in denying his motion to suppress the admission of the weapons found in the vehicles at the time of his arrest; (2) the trial court erred by failing to properly instruct the jury as to the elements of the offense required for the group crime enhancement; and (8) the trial court erred by failing to properly resolve errors or inaccuracies in the presentence investigation report.

ANALYSIS

I. MOTION TO SUPPRESS

18 "'We review the factual findings underlying the trial court's decision to grant or deny a motion to suppress evidence using a clearly erroneous standard'" State v. Pena, 869 P.2d 932, 939 n. 4 (Utah 1994) (quoting State v. Brown, 853 P.2d 851, 855 (Utah 1992)). However, we review the trial court's conclusions of law based on these findings for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts. See Pena, 869 P.2d at 936-39.

19 Veteto's motion to suppress the admission of the weapons was made jointly with co-defendant Kohl. Under these identical cireumstances in State v. Kohl, 2000 UT 35, 999 P.2d 7, we upheld the officers' stop of the vehicle in which Veteto was a passenger as supported by reasonable suspicion and affirmed the trial court's ruling denying the motion to suppress the evidence. The officer personally confirmed in his interview with French the dispatcher's report of the information received in the 911 call. French then identified the green truck by pointing it out to the officer. The later interview with the driver of the green truck, Tiffance Davis, further confirmed critical elements of the description given by French. As in KoA and for the same reasons, we hold that the officers' stop was supported by reasonable suspicion, and affirm the trial court's ruling on the motion to suppress.

II. GROUP CRIME PENALTY ENHANCEMENT STATUTE

T10 Veteto raises concerns about the application of the group crime enhancement under Utah Code Ann. § 76-8-203.1 (Supp.1999) that are identical to those raised by his co-defendant in Kohl Under our decision in State v. Lopes, 1999 UT 24, 980 P.2d 191, all elements of the "group crime" charge must be proven by the State beyond a reasonable doubt. A defendant also has a constitutional right to have a jury decide whether the group crime enhancement applies and whether the State has proved each element beyond a reasonable doubt. See id. at N 16-17. This determination cannot be made by the trial judge. As we said in Kohl we agree that our holding in Lopes applies to this case, and that the court violated Veteto's constitutional right to a jury trial by not properly submitting the matter to the jury with the necessary instructions. However, as we also said in Kohl, under the unique facts of this case, the error was without legal consequence. The only factual element required to have been found by the jury that was not submitted to the jury in the case of Veteto was whether he committed aggravated burglary "in concert with two or more persons" as required by section 76-3-208.1(1). As with his co-defendant Kohl, Vet-eto was tried simultaneously with two other persons, Kohl and Pettingill. All three were found guilty at the same time by the same jury of the same aggravated burglary. If properly instructed, the jury could not have found other than that each of these three defendants acted "in concert with two or more persons" in the commission of this burglary.

111 As we said in KoRl, since the trial of Veteto and Kohl occurred before our decision in Lopes, the trial judge could not have known of our decision, and therefore the error in not requiring the jury to decide the factual question regarding defendant acting in concert with his two co-defendants cannot amount to plain error. However, for trials after Lopes, such an error would be plain.

1 12 As we held in Kohl, under these very limited cireumstances, the error was without legal significance as applied to these defendants, and we affirm the application of the group crime enhancement to Veteto.

III. OBJECTIONS TO THE PRE-SENTENCE INVESTIGATION REPORT

113 Finally, Veteto seeks remand to the trial court for reconsideration of his sentencing to correct errors he claims were made in his presentence investigation report. Utah Code Ann. § 77-18-1(6)(a) (Supp.1999) and State v. Jaeger, 1999 UT 1, ¶¶ 44-45, 973 P.2d 404, require the trial court to resolve on the record any claimed inaccuracies in the report. Whether the trial court properly complied with a legal duty is a question of law that we review for correctness. See State v. Kohl, 2000 UT 35, ¶ 32, 999 P.2d 7.

"14 Section 77-18-1(6)(a) provides:

Any alleged inaccuracies in the presen-tence investigation report, which have not been resolved by the parties and the [Department of Corrections] prior to sentencing, shall be brought to the attention of the sentencing judge, and the judge may grant an additional ten working days to resolve the alleged inaccuracies of the report with the department. If after ten working days the inaccuracies cannot be resolved, the court shall make a determination of relevance and accuracy on the record.

(Emphasis added.) Compliance with this section "requires the sentencing judge to consider the party's objections to the report, make findings on the record as to whether the information objected to is accurate, and determine on the record whether that information is relevant to the issue of sentencing." Jaeger, 1999 UT 1 at ¶ 44, 973 P.2d 404. It is insufficient to make general statements "concerning the court's view of the defendant and the case." Id.

115 Veteto claims the following errors were made in his presentence investigation report: (1) the report improperly included references to a prior felony conviction and probation in California; (2) two of the aggravating cireumstances listed in the report were inaccurate-namely, that the victim was particularly vulnerable and that the offense was characterized by extreme cruelty; and (8) his youth was not included as a mitigating cireumstance. The State conceded that the prior criminal history was in error with reference to Veteto's conviction and probation in California, and the trial court acknowledged this correction on the record. Additionally, the facts underlying Veteto's age and the victim's vulnerability were presented and argued to the court. Although the trial court clearly was aware of the issues and the alternative characterization urged by defendant, the trial court failed to make the specific findings on the record as mandated by the statute. In so doing, the trial court did not comply with its legal duty to properly resolve Veteto's objections. Accordingly, we remand to the trial court with instructions that it expressly resolve defendant's objections in full compliance with section 77-18-1(6)(a) by entering the required findings on the record. The court may hold an additional hearing if required by the circumstances, or simply enter the necessary findings upon the record where the contested issues were presented to the court and considered at the sentencing hearing.

CONCLUSION

1 16 The trial court properly denied Vete-to's motion to suppress the evidence seized at

the time he was arrested. The officers had reasonable suspicion to stop defendant. Further, defendant's trial was conducted simultaneously with the trials of two co-defendants, and each of the three defendants was found guilty beyond a reasonable doubt of aggravated burglary at the same time by the same jury. Therefore, if properly instructed, the jury could not have found other than that Veteto acted in concert with two or more other persons. As a result, although the trial court erroneously failed to instruct the jury on the element of the group enhancement offense as required by our later decision in Lopes, this unique cireumstance makes the error legally insignificant. However, any similar failure after Lopes would be plain error and likely dealt with differently on appeal. Finally, we remand for the limited purpose of resolving Veteto's objections to the presentence investigative report on the record as required by section 77-18-1(6)(a). In all other regards, the convictions are affirmed.

17 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURHAM, and Justice DURRANT concur in Justice WILKINS opinion.

      . We recite the facts from the record in the light most favorable to the jury's verdict. See State v. Johnson, 784 P.2d 1135, 1137 (Utah 1989).


author:
BENCH, Judge:
      DAVIS, Judge

text:
    2000 Utah Ct. App. 216
    STATE of Utah, in the Interest of A.D., R.D., A.D., and A.D., persons under eighteen years of age. C.C., Appellant, v. State of Utah, Appellee.
    No. 990435-CA.
    Court of Appeals of Utah.
    July 13, 2000.

      John E. Laherty, Laherty & Associates PC, Salt Lake City, for Appellant.
    Jan Graham, Attorney General and John Peterson, Attorney General's Office, Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, Guardian Ad Litem.
    Before Judges JACKSON, BENCH, and DAVIS.
   OPINION

BENCH, Judge:

[ 1 C.C. appeals the juvenile court's order terminating her parental rights, arguing that the court erred in quashing her subpoena to compel the Guardian Ad Litem (the GAL) to testify. We affirm.

BACKGROUND

T2 C.C. is the natural mother of A.D., R.D., A.D., and AD. (the children). The Division of Child and Family Services (DCFS) removed the children from C.C.'s care and custody in February 1997 because C.C. physically abused a child who is not a party to this matter, and thus, the children were deemed to be at risk. After unsuceess-fully attempting a relative placement with one of the children, DCFS was awarded temporary custody and guardianship of all four children. The children were adjudicated as "neglected," and DCFS formulated two service plans with the goal of returning custody of the children to C.C. However, because C.C. failed to comply with the requirements of the service plans, the court terminated reunification services and changed the children's permanency goal to adoption.

13 DCFS filed a petition to terminate C.C.'s parental rights When C.C. began complying with some of the requirements of the service plans, DCFS filed a motion to dismiss the petition and to change the per-manencey goal back to reunification. The GAL, however, filed an amended petition to terminate C.C.'s parental rights.

T4 Counsel for C.C. subpoenaed the GAL to testify at trial because the GAL had personally verified the amended petition. The GAL filed a motion to quash the subpoena, which the juvenile court granted. A trial was held on the GAL's termination petition, at which the GAL called witnesses to present testimony and evidence concerning, inter alia, C.C.'s mental health and substance abuse, and the children's need for permanency. The juvenile court determined that sufficient grounds existed to terminate C.C.'s parental rights, but stayed the order pending C.C.'s compliance with certain other court orders. When C.C. failed to comply with the other court orders, the juvenile court lifted the stay on the order terminating her parental rights. This appeal followed.

ISSUE AND STANDARD OF REVIEW

$5 We must determine whether the juvenile court properly quashed C.C.'s subpoena to compel the GAL to testify,. "We will not reverse the trial court{'s refusal to allow testimony] unless the appellant demonstrates that the trial court has clearly abused its discretion and thereby affected the appellant's substantial rights." Turner v. Nelson, 872 P.2d 1021, 1023 (Utah 1994); see also State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993) ("The trial court has wide discretion in determining the admissibility of expert testimony, and such decisions are reviewed under an abuse of discretion standard.").

ANALYSIS

16 C.C. first argues that because the GAL verified the termination petition, C.C. should have been "permitted an opportunity to question [the GAL] regarding her basis of knowledge for signing the verification." We disagree. Verifying a petition does not require the GAL to have any personal or first-hand knowledge of the underlying allegations. See Utah Code Ann. § 78-8a-109(2) (Supp.1999). Verification simply means that, to the best of the GAL's "infor-ration and belief[,]" the statements in the petition are true. Id. In fact, verifying a petition to the juvenile court is analogous to presenting any other pleading or motion to a court. See Utah R. Civ. P. 11(b) (providing that when attorney signs and presents "pleading, written motion, or other paper to the court[,]" attorney certifies that to the best of his or her "knowledge, information, and belief," factual allegations have or will likely have evidentiary support). Accordingly, the simple fact that the GAL verified the petition does not entitle C.C. to call the GAL as a witness. .

17 C.C. also argues that she should have been permitted to call the GAL as a witness due to the GAL's statutory responsibility to investigate and make recommendations regarding the best interests of the children. See Utah Code Ann. § 78-3a-912(8)(c) & (s) (Supp.1999). C.C. contends that this statutory responsibility "places [the GAL] in the position of expert witness." We again disagree. The juvenile court "may appoint an attorney [GAL] to represent the best interest of a minor involved in any case before the court." Id. § 78-8a-912(1). Due to the unique role the GAL plays in representing abused, neglected, or dependent children, the Legislature has specifically outlined, by statute, the manner in which the GAL is to properly represent the children's best interests. See id. § 78-8a-912.

18 When representing a minor, the GAL is to "conduct or supervise an independent investigation in order to obtain first-hand, a clear understanding of the situation and needs of the child." Id. § 78-82-912(8)(c). In addition, the GAL is to "make clear and specific recommendations to the court concerning the best interest of the minor at every stage of the proceeding." Id. § 78-8a-912(8)(s). Those recommendations "shall be a result of [the GAL's] independent investi--gation." Id. § 78-Sa-912(8)(b). We will therefore focus our analysis on whether the duty to make recommendations to the court based on an independent investigation necessarily subjects the GAL to being called as a witness.

T9 Although the statute requires the GAL to make recommendations to the court, it does not suggest that those recommendations are to be treated as evidence. Moreover, the statute does not direct, or even allow, the court to give any particular weight or deference to the recommendations. What the statute does require in proceedings to terminate parental rights is that the petitioner (the GAL in this ease) "establish the facts by clear and convincing evidence." Id. § 78-3a-~406(8) (1996). < The GAL must meet this burden by "present[ing] witnesses and exhibits." Id. § 78-32-912(8)(0) (Supp.1999). Although the GAL makes recommendations to the court, the court may not treat those recommendations as evidence. See Utah R. Profil Conduct 8.7 (prohibiting attorney, with limited exceptions, from acting as advocate and witness in same trial). When seeking termination of parental rights, the GAL must clearly and convincingly establish the facts supporting termination just as any other attorney would.

[ 10 In this case, the juvenile court terminated C.C.'s parental rights based on clear and convincing evidence of C.C.'s unfitness, which was established through numerous witnesses called by the GAL. In fact, C.C. does not dispute the sufficiency of the evidence terminating her parental rights to the children. Further, the GAL did not testify, and C.C. has not demonstrated that the juvenile court treated any of the GAL 's recommendations as evidence. In short, the GAL-as the children's attorney-did not act as a witness in making the statutorily required recommendations, and the juvenile court did not treat those recommendations as evidence. Thus, the juvenile court properly quashed the subpoena to compel the GAL's testimony.

CONCLUSION

{ 11 The GAL did not become a witness in the proceeding to terminate C.C.'s parental rights simply by verifying the termination petition. The GAL also did not act as an "expert witness" by fulfilling her statutory responsibility to make recommendations to the court regarding the children's best interests. Accordingly, the juvenile court did not abuse its discretion in quashing the subpoena to compel the GAL to testify at the termination proceeding.

1 12 We therefore affirm.

13 I CONCUR: NORMAN H. JACKSON, Associate Presiding Judge.

DAVIS, Judge

(concurring and dissenting):

114 I concur with the majority opinion except the following portions of paragraph six: (1) the portion stating that verification means assertions made upon "information and belief," and (2) the portion equating verification of a pleading with the certification imposed by Utah R. Civ. P. 11(b).

[ 15 "Verification" is defined as "[a] formal declaration made in the presence of an authorized officer, such as a notary public, by which one swears to the truth of the statements in the document." Black's Law Dictionary 1556 (7th ed.1999).

16 While it is true that a verified pleading can be made wholly on information and belief, in my experience, this seldom occurs. Indeed, unless the fact of obtaining, say, hearsay information is of some consequence, there would be little point in using a verification. More commonly, a verified pleading will contain a mix of assertions made on personal knowledge as well as information and belief when context and continuity require. Of course, a verified pleading can also be based entirely upon personal knowledge.

" 17 The majority opinion equates verification with assertions made on information and belief. This equation would render verification meaningless in most cases unless the fact of obtaining the information contained in the assertions is of some significance. It follows that, to the extent the GAL makes verified assertions based upon information and belief, there would be little point in subjecting the GAL to subpoena and examination because the pleading, by its terms, stated that the GAL has no personal knowledge of the assertions.

118 To the extent assertions are made upon personal knowledge and are, or may be, relied upon by the court as evidence of the matter asserted, due process requires the party challenging the assertions an opportunity to test the efficacy thereof. See, eg., Christiansen v. Harris, 109 Utah 1, 163 P.2d 314, 317 (1945)(stating that essentials of due process include fair opportunity to submit evidence, examine, and cross-examine witnesses).

+119 Additionally, the fact that the person making the verified assertions is a member of the bar does not support the majority's Rule 11 analogue. Under Rule 11, attorneys are required to sign pleadings and thereby certify that the factual allegations therein will have evidentiary support. This certification is a far ery from a verification of a pleading-even one based exclusively upon information and belief.

4 20 Accordingly, I coneur with the majority opinion except as to those portions of paragraph six discussed above.

      . Coincidently, the GAL verification form recommended in American Jurisprudence Pleading and Practice Forms is of this type. See 5A Am.Jur. Pleadings and Practice Forms § 635 (1998). This verification form recommends the following language: "1) Deponent is the guardian ad litem of [minor children]. 2) The above [pleading] is true of deponent's own knowledge except as to the matters therein stated to be on information or belief, and to those matters, deponent believes it to be true." Id.
      However, in the instant case, the GAL's oath states: "I, Penny Heal Breiman, being first duly sworn under oath, do depose and state that I am court appointed Guardian ad litem (sic) for the above named minor children and certify that the foregoing Petition is true to the best of my knowledge and belief."


author: .JACKSON, Associate Presiding Judge:

text:
    2000 Utah Ct. App. 222
    Ken Ray HARWARD, Plaintiff and Appellant, v. UTAH COUNTY, Utah County Sheriff's Office, Utah County Attorney's Office, Pleasant Grove City, Pleasant Grove Police Department, Lehi City, Lehi Police Department, Provo City, Provo Police Department, and John Does 1 through 10, Defendants and Appellees.
    No. 990707-CA.
    Court of Appeals of Utah.
    July 13, 2000.

      D. Bruce Oliver, Salt Lake City, for Appellant.
    Benson Hathaway, Peter Stirba, John Warren May, Stirba & Hathaway, Gregory J. Sanders, Kipp & Christian, Dale J. Lambert, and Rebecca L. Hill, Christensen & Jensen, PC, Salt Lake City, and Gary L. Gregerson and David C. Dixon, Provo City Attorneys Office, Provo, for Appellees.
    Before GREENWOOD, P.J., JACKSON, Associate P.J., and DAVIS, J.
   OPINION

.JACKSON, Associate Presiding Judge:

¶ 1 Ken Ray Harward challenges the trial court's award of summary judgment to Utah County and the cities of Lehi, Pleasant Grove, and Provo (defendants). We affirm.

BACKGROUND

{2 When reviewing a trial court's summary judgment ruling, we regard "the facts in the light most favorable to the losing party, while giving no deference to the trial court's legal conclusions." Litster v. Utah Valley Community College, 881 P.2d 933, 937 (Utah Ct.App.1994).

13 In 1996, Harward sought to "deliver[ ]" notices of claim to defendants under the Utah Governmental Immunity Act. Utah Code Ann. § 68-30-11(8)(b)(@i) (1997) ("The notice of claim shall be ... directed and delivered to the responsible governmental entity ...."); see generally id. §§ 68-30-1 to -88 (Utah Governmental Immunity Act). Using express mail service, he mailed the notices through the United States Postal Service. The date of mailing entered on the envelopes in the section marked "postal use only" shows June 6, 1996. -

14 Harward did not receive approvals or denials of his claims from defendants within ninety days of filing his claims. The claims were therefore "deemed to have been denied . at the end of the ninety-day period." Id. § 63-30-14. On September 5, 1997, Har-ward filed a complaint bringing his claims against defendants in district court. See id. § 63-30-15(1) ("If the claim is denied, a claimant may institute an action in the district court against the governmental enti-2."

15 Defendants moved for summary judgment, arguing under Utah Code Ann. § 63-37-1(1) (1997) that Harward had delivered his notices of claim against them on June 6, 1996, the date on which the notices were mailed. Thus, defendants contended, Har-ward's claims were deemed denied by defendants on September 4, 1996-ninety days from the date of delivery to defendants, or the date the notices of claim were mailed- and Harward's complaint, which would have been timely if filed within one year from September 4, 1996-whether that be September 3 or 4, 1997-was barred as untimely when he filed it on September 5, 1997. See id. § 68-80-15 ("If the claim is denied, a claimant may institute an action in the district court against the governmental entity.... (2) The claimant shall begin the action within one year after denial of the claim. ..."). The trial court agreed with defendants and granted them summary judgment, dismissing with prejudice Harward's complaint. Harward appeals.

ANALYSIS

T6 Summary judgment is proper only when no genuine issues of material fact exist and the moving party has a right to judgment as a matter of law. See Litster v. Utah Valley Community College, 881 P.2d 933, 937 (Utah Ct.App.1994). We do not defer to the trial court's legal conclusions, reviewing them for correctness. See id.

17 Harward argues that the trial court incorrectly concluded that Utah Code Ann. § 63-87-1 (1997) controls the date on which a notice of claim placed in the United States mail is deemed "delivered" to a governmental addressee under the Governmental Immunity Act. Utah Code Ann. § 63-30-11(8)(b)@i) (1997). The Litster case distinctly invalidates Harward's argument, specifically importing section 68-37-1 into the Governmental Immunity Act to determine the date upon which a notice of claim was "filed" or "delivered" in that case. Litster, 881 P.2d at 938. "File," as used in section 63-37-1, is practically synonymous with "deliver," as used in section 63-30-11(8)(b)M): "File" means "[to deliver a legal document ... for placement into the official record." Black's Low Dictionary 642 (Ith ed.1999) (emphasis added).

18 Thus, Harward's notices of claim were delivered to, or filed with, defendants on June 6, 1996-the date on which postal service personnel accepted the envelopes containing the notices, as shown by the date written in the "postal use only" section. Because defendants did not approve or deny his claims by September 4-within ninety days of delivery of the notices-Harward's claims were deemed denied on that date. See Utah Code Ann. § 63-80-14 (1997). He therefore had one year to file his claims in district court, and his complaint filed on September 5, 1997 is barred as untimely. See id. § 63-80-15. Consequently, the trial court correctly granted summary judgment for defendants and dismissed Harward's complaint.

19 We have carefully considered Har-ward's other arguments (regarding his subjectively intended delivery date, waiver of an affirmative defense, and substantive due process) and conclude they are wholly without merit; we thus decline to address them. See State v. Carter, 776 P.2d 886, 888 (Utah 1989) (holding we "need not analyze and address in writing each and every argument, issue, or claim raised and properly before us on appeal"); cf. Reese v. Reese, 1999 UT 75, ¶ 8, 984 P.2d 987 (holding, to allow supreme court certiorari review, this court must "at the very least the basis for refusing to treat an issue"). Our disposition also obviates the need to further consider Pleasant Grove City's earlier motion to dismiss this appeal on procedural grounds.

1 10 Affirmed.

11 WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge, and JAMES Z. DAVIS, Judge.

      . Utah Code Ann. § 63-37-1(1) (1997) reads:
      Any report, claim, tax return, statement or other document or any payment required or authorized to be filed or made to the state of Viah, or to any political subdivision thereof, which is:
      (1) Transmitted through the United States mail, shall be deemed filed or made and received by the state or political subdivisions on the date shown by the post-office cancellation mark stamped upon the envelope or other appropriate wrapper containing it.

      . Defendant Pleasant Grove City argues that the language of Utah Code Ann. § 63-30-15 (1997), requiring that the complaint be filed in district court "within one year after denial of the claim," means that Harward's complaint should have been filed by September 3, 1997 to be timely. Meanwhile, the other defendants argue that, based on the computation rule of Utah Rule of Civil Procedure 6(a), Harward had until September 4, 1997 to file a timely complaint. We need not choose between these two dates; we simply conclude that Harward's complaint was barred as untimely when he filed it on September 5, 1997.

      . Defendants alleged they never received the notices of claim. However, they have not disputed Harward's assertions that the express mail envelopes dated June 6, 1996 are authentic and, for purposes of summary judgment and appeal, that those envelopes have the legal effect of establishing that Harward complied with the Governmental Immunity Act by "direct[ing] and deliver{ing]" his notices of claim to defendants. Utah Code Ann. § 63-30-11(3)(b)(ii) (1997). We therefore do not further address Harward's argument that Utah Code Ann. § 63-37-1(2) (1997) controls this case. That section deals with situations in which a claimant needs to prove a notice of claim was sent when the governmental entity to which it was directed professes to have never received it "and the [post-office] cancellation mark is illegible, erroneous, or omitted." Id. § 63-37-1(2); see Litster v. Utah Valley Community College, 881 P.2d 933, 938-41 (Utah Ct.App.1994) (explaining analysis under section 63-37-1(2)).

      . In particular, Litster analyzes subsection two of section 63-37-1, whereas subsection one controls this case. That difference is immaterial to our analysis, however: Our point is that section 63-37-1 as a whole is imported into the Governmental Immunity Act, while Harward urges the section applies not at all. f

      . For purposes of this case involving the United States express mail service, as opposed to those cases involving other classes of United States mail, we view the written date notation as equivalent to the "date shown by the post-office cancellation mark" described in Utah Code Ann. § 63-37-1(1) (1997). The parties do not argue it should be viewed otherwise.


author: DAVIS, Judge:

text:
    2000 Utah Ct. App. 217
    IKON OFFICE SOLUTIONS, INC., an Ohio corporation, Plaintiff and Appellant, v. David L. CROOK, an individual; David Turner, an individual; Ginger Seaman, an individual; Robert L. Petersen, an individual; Matthew R. Hill, an individual; Jeffrey R. Hill, an individual; Nicholas Madsen, an individual; Louise Madsen, an individual; Cindy Campana, an individual; and Uinta Business Systems, Inc., a Utah corporation, Defendants and Appellees.
    No. 990679-CA.
    Court of Appeals of Utah.
    July 13, 2000.

      Derek Langton and W. Mark Gavre, Parsons, Behle & Latimer, Salt Lake City, for Appellant.
    J. Michael Hansen, Hanson, Nelson, Chip-man & Quigley, Salt Lake City, for Appel-lees.
    Before JACKSON, Associate P.J., BENCH and DAVIS, JJ.
   OPINION

DAVIS, Judge:

{1 IKON Office Solutions, Inc. (IKON) appeals the trial court's order and judgment awarding Uinta Business Systems, Inc. (Vin-ta) attorney fees and costs in the amount of $73,777.52. We affirm the award of attorney fees and costs, but remand for reconsideration of the amount.

BACKGROUND

$2 Uinta and IKON are competitors in marketing, selling, leasing, and servicing office machines. IKON employed the eight individual defendants as part of its photocopier sales team. As a condition of their employment with IKON, each individual defendant executed a non-compete agreement.

1 3 Over a several week period in 1997, the individual defendants voluntarily terminated their employment with IKON and went to work for Uinta. On June 11, 1997, IKON filed a complaint alleging that defendants breached their fiduciary duties and duties of loyalty, misappropriated confidential information, intentionally interfered with economic relations, and engaged in a civil conspiracy. IKON sought a temporary restraining order, preliminary injunction, permanent in-junctive relief, and damages on each of these claims. Pursuant to its complaint, IKON filed a Motion for Temporary Restraining Order and for Preliminary Injunction.

14 On June 18, 1997, the trial court held a hearing on IKON's Motion for Temporary Restraining Order. Both IKON and defendants were represented at this hearing. After the hearing, the trial court issued a temporary restraining order prohibiting the individual defendants from violating the non-compete agreements. The temporary restraining order also prohibited Uinta from soliciting or inducing any breach of the non-compete agreements. Finally, the temporary restraining order allowed the parties expedited discovery to prepare for the hearing on IKON's Motion for Preliminary Injunction. The trial court ordered that, unless the court extended the temporary restraining order for good cause or the parties consented to an extension, the order was to remain in effect until either the court could hear IKON's Motion for Preliminary Injunction or ten days elapsed from the date of issuance. See Utah R. Civ. P. 66A¥(b)(Q).

15 The trial court scheduled a hearing on IKON's Motion for Preliminary Injunction for July 9, 1997, and the parties stipulated to an extension of the temporary restraining order until the hearing. Between the time that IKON filed its original complaint and the time of the hearing on IKON's Motion for Preliminary Injunction, both parties conducted extensive discovery.

T6 On July 9, 1997, the trial court heard IKON's Motion for a Preliminary Injunction. After IKON argued its position, defendants moved for a directed verdict and the trial court granted their motion. In addition to denying IKON's Motion for a Preliminary Injunction, the trial court dissolved the temporary restraining order. The following month, defendants filed a Motion for Award of Attorney Fees and Costs incurred in dissolving the temporary restraining order and resisting IKON's Motion for Preliminary Injunction. See Utah R. Civ. P. 65A¥(c). The trial court ruled that defendants' motion was not ripe because some claims were still pending and the court denied the motion without prejudice.

17 Pursuant to the parties' Stipulation and Motion to Dismiss With Prejudice, the trial court dismissed IKON's claims against the defendants on February 19, 1999. Defendants then filed a Renewed Motion for Award of Attorney Fees and Costs. IKON conceded that defendants were wrongfully enjoined by the temporary restraining order. However, IKON argued that defendants were entitled to only those fees and costs incurred in relation to the temporary restraining order, rather than those fees and costs defendants incurred resisting the Motion for Preliminary Injunction. IKON also argued that defendants were not entitled to the fees and costs that would have been incurred in the ordinary litigation of the case. Specifically, IKON argued that defendants were not entitled to those attorney fees associated with both the preliminary injunction and the merits of the underlying claims. On July 30, 1999, the trial court rejected IKON's arguments and granted defendants' Renewed Motion for Attorney Fees and Costs, awarding Uinta $78,777.52. IKON appeals.

ISSUES AND STANDARD OF REVIEW

18 IKON raises two issues on appeal. First, IKON argues that the trial court erred when it awarded attorney fees and costs to Uinta under Rule 65A of the Utah Rules of Civil Procedure. Specifically, IKON argues that the trial court should not have awarded Uinta any of the attorney fees and costs that Uinta incurred by opposing the preliminary injunction. Second, IKON argues that the trial court erred when it awarded Uinta attorney fees and costs that would have otherwise been incurred in litigating the merits of the underlying claims in the case.

T9 Both of IKON's claims involve the award of attorney fees and costs under Rule 65A of the Utah Rules of Civil Procedure. "'Whether attorney fees are recoverable in an action is a question of law, which is reviewed for correctness"" Wardley Corp. v. Weish, 962 P.2d 86, 92 (Utah Ct.App.1998) (citation omitted).

ANALYSIS

T{10 IKON argues that the trial court should not have awarded attorney fees and costs to Uinta for the following reasons: (1) The fees and costs that Uinta incurred in opposing the preliminary injunction are not recoverable under Rule 65A because Uinta successfully defended against the issuance of the preliminary injunction and, as a result, the preliminary injunction was never issued; and (2) Uinta is not entitled to any fees and costs because Uinta did not actually obtain dissolution of the temporary restraining order. Alternatively, IKON argues that even if Uinta was entitled to fees and costs under Rule 65A, the trial court erred when it awarded attorney fees that Uinta would have otherwise incurred litigating the merits of the underlying claims.

111 We first address IKON's argument that Uinta is not entitled to any fees and costs under Rule 65A. Specifically, IKON argues that Uinta is not entitled to fees and costs associated with the preliminary injunction because the preliminary injunction was never issued and, therefore, Uinta was never wrongfully enjoined by the preliminary injunction.

12 Ordinarily, a court requires a party to post a security before that court issues a temporary restraining order or preliminary injunction. See Utah R. Civ. P. 65A¥(c)(1). Rule 65A states: "The amount of security shall not establish or limit the amount of costs, including reasonable attorney fees incurred in commection with the restraining order or preliminary injunction, or damages that may be awarded to a party who is found to have been wrongfully restrained or enjoined." Utah R. Civ. P. 65¥(c)(2) (emphasis added). Additionally, the Utah Supreme Court has held: "If ... it is found that the injunction was wrongfully issued, the enjoined party has an action for costs and damages incurred as a result of the wrongfully issued injunction." Mountain States Tel. & Tel. Co. v. Atkin, Wright & Miles, Chartered, 681 P.2d 1258, 1262 (Utah 1984) (emphasis added).

113 The costs Uinta incurred in resisting the preliminary injunction were the result of the wrongfully issued temporary restraining order. IKON, in an effort to continuously restrain and enjoin defendants, moved for both a temporary restraining order and a preliminary injunction. Once IKON obtained the temporary restraining order, the record clearly indicates that Uinta prepared to resist the wrongful restraint in the context of the hearing on IKON's Motion for Preliminary Injunction. A party may choose to fight the wrongful enjoinder by preventing it from continuing as a preliminary injunction. CJ United States v. Moore, 427 F.2d 1020, 1025 (10th Cir.1970) ("[A] temporary restraining order later merged, by agreement, into a preliminary injunetion."); Birch Creek Irrigation v. Prothero, 858 P.2d 990, 994 (Utah 1998) ("[Hlad the trial court reached a final judgment granting or denying a permanent injunction, we would dismiss that portion of the appeal challenging the temporary restraining order under the doctrine of merger."). If a party prevails using this strategy, the temporary restraining order will dissolve, either by its own terms or by order of the court, and the party will have successfully eliminated the wrongful enjoinder. Consequently, the attorney fees and costs that a party incurs in this type of defense are the result of the wrongful injunction and that party may be awarded attorney fees and costs.

{14 IKON's second argument is that Uinta is not entitled to attorney fees and costs because Uinta did not move to dissolve the temporary restraining order before the hearing on IKON's Motion for Preliminary Injunction. The trial court issued the temporary restraining order on IKON's motion following a hearing at which the parties argued their positions. Other than the parties' conduct of expedited discovery during the pendency of the temporary restraining order, nothing occurred that would likely change the court's position before the already scheduled hearing on IKON's Motion for Preliminary Injunction. Thus, it would have been duplicative, costly, and probably futile for Uinta to file a Motion to Dissolve before the hearing on IKON's Motion for Preliminary Injunction. Furthermore, as described above, Uinta's opposition to the preliminary injunction terminated the wrongful order as effectively as a motion to dissolve the temporary restraining order. See Miller v. Donovan, 13 Idaho 735, 92 P. 991, 994 (1907) ("We think therefore that the services in connection with the demurrer as much recoverable as though they had been rendered in the presentation of a formal motion to dissolve."); Devine v. Cluff, 110 Idaho 1, 718 P.2d 487, 439-40 (Idaho Ct.App.1985) ("[Wle hold that the plain meaning of LR.C.P. 65(c) cannot be interpreted so narrowly as to deprive a wrongfully enjoined party of the right to attorney fees merely because the party failed to contest the restraining order before trial on the merits."). Here, it was both appropriate and efficient for defendants to resist the wrongful enjoinder at the hearing on IKON's Motion for Preliminary Injunction.

T15 IKON also argues that Uinta did not obtain dissolution of the temporary restraining order because Uinta never moved to have the order dissolved during the hearing on IKON's Motion for Preliminary Injunction. IKON further asserts that the trial court's order dissolving the temporary restraining order was surplusage because the order would have expired by its own terms at the end of the day. However, because the order would either merge into the preliminary injunction or expire, it was unnecessary for Uinta to formally move to dissolve the temporary restraining order. Uinta prevented the temporary restraining order from continuing as a preliminary injunction; therefore, Uinta effectively obtained dissolution of the temporary restraining order.

116 We also reject IKON's argument that Uinta is not entitled to fees and costs because both parties agreed to extend the temporary restraining order. IKON clearly stipulated to and enjoyed the protection of the extended temporary restraining order. Furthermore, there is no indication that Uinta intended to waive its right to attorney fees under Rule 65A when they agreed to extend the order. "[In order to waive a known right, the party must have 'an intention to relinquish the right.'" Miller v. Martineau & Co., 1999 UT App 216,% 42 n. 7, 983 P.2d 1107 (citation omitted); see also Monrce Div., Litton Bus. Sys. v. De Bari, 562 F.2d 30, 33 (10th Cir.1977) ("Whatever effect the requested continuance may have had, it did not preclude defendant from seeking to recover damages for a wrongful injunction."). Defendants' agreement to the extension of the temporary restraining order had no effect on their entitlement to attorney fees and costs under Rule 65A¥(c)(@2). Thus, Uinta is entitled to fees and costs under Rule 65A because defendants were wrongfully enjoined.

117 We now turn to IKON's alternative argument that Uinta is not entitled to those fees and costs that it would have incurred in litigating the underlying claims.

Although Rule 65A justifies awarding attorney fees to wrongfully enjoined parties, those parties are only entitled to 'fees . incurred in defending against wrongfully obtained injunctive relief and not to fees incurred in litigating the underlying lawsuit associated with an injunction. Thus, [the party wrongfully restrained or enjoined] is entitled only to those attorney fees which would not have been incurred but for the application for, and issuance of, the preliminary injunction. Fees which would have been incurred anyway ... are not recoverable under Rule 65A,

Tholen v. Sandy City, 849 P.2d 592, 597 (Utah Ct.App.1993) (citations omitted).

{18 IKON argues that the trial court erred when it awarded Uinta those attorney fees and costs that Uinta would have incurred in litigating the underlying lawsuit. Specifically, the attorney fees at issue include fees that Uinta incurred in proving that IKON was unlikely to prevail on the merits of the underlying claim. The Utah Rules of Civil Procedure require an applicant for preliminary injunction to show that "(there is a substantial likelihood that the applicant will prevail on the merits of the underlying claim, or the case presents serious issues on the merits which should be the subject of further litigation." Utah R. Civ. P. 65¥(e)(4). As a result, in many, if not most, cases when a party resists a temporary restraining order and/or a preliminary injunction, that party will incur fees and costs relating to the merits of the underlying claim.

{19 Uinta argues that the "but for" test, as set out by this court in Tholen, does not apply to those fees incurred as a result of defending against the temporary restraining order and preliminary injunction. Specifically, Uinta claims that defendants had to show that IKON was unlikely to prevail on the merits of the underlying claim in order to defend against the wrongful injunction. In doing so, Uinta incurred legal fees for services that were identical to those services necessary to defend the merits of the case. Due to this overlap, Uinta argues that it is entitled to those legal fees it incurred in showing that IKON was unlikely to succeed on the underlying merits. In other words, Uinta argues that Tholew's "but for" test does not preclude recovery of fees that would have been incurred in litigating the underlying lawsuit, so long as those fees are incurred in connection with the wrongful order or injunction.

120 The fees a party incurs in showing that its opponent is unlikely to succeed on the merits will typically be fees that the party would have incurred in litigating the underlying lawsuit. Therefore, it is impossible to say that these fees would not have been incurred "but for" the application for, and issuance of, the wrongful order or injunction. See Tholen, 849 P.2d at 597. Thus, to the extent that the trial court awarded fees and costs that Uinta would have incurred in litigating the underlying lawsuit, the trial court erred, even if the fees and costs were incurred in defendants' effort to show that IKON was unlikely to succeed on the merits of the underlying suit.

T 21 We reject Uinta's contention that Rule 65A would be rendered meaningless if a party is precluded from recovering the fees incurred in showing that the adverse party is unlikely to succeed on the merits. While we agree that, in most cases, opposition to en-joinder will include showing that the moving party is unlikely to prevail on the underlying claim, fees and costs may be incurred in addressing the other grounds for injunctive relief set out in Rule 65A¥(e), or any other matters not " incurred in litigating the underlying lawsuit'" Id. (citation omitted). Therefore, we are not persuaded that strict interpretation of the "but for" test from Tholen and other cases limiting recovery under Rule 65A will render Rule 65A meaningless.

CONCLUSION

122 We hold that Uinta was entitled to those attorney fees and costs it incurred in defending against the wrongfully obtained injunctive relief. Uinta is entitled to fees and costs because it collaterally attacked the wrongful order when it resisted the order's

continuance as a preliminary injunction. However, we remand to the trial court to reconsider the amount of attorney fees that should be awarded to Uinta. In particular, the trial court should not award Uinta any fees that it would have incurred in litigating the underlying case, even if those fees were incurred in Uinta's effort to show that IKON was unlikely to prevail on the merits of the underlying claim.

«23 WE CONCUR: NORMAN H. JACKSON, Associate Presiding Judge; and RUSSELL W. BENCH, Judge.

      . Defendant David Turner did not sign the same agreement as the other individual defendants; however, Turner entered into an employment contract with a restrictive covenant similar to the non-compete agreements.

      . Uinta was the sole defendant awarded attorney fees and costs because Uinta was the party who paid all the defendants' fees and costs.

      . IKON concedes that the temporary restraining order wrongfully restrained defendants.

      . In the present case, the court ordered the temporary restraining order dissolved before it terminated by its own terms.

      . Other cases limiting recovery under Rule 65A include, Miller v. Martineau & Co., 1999 UT App 216, 983 P.2d 1107; Saunders v. Sharp, 793 P.2d 927 (Utah Ct.App.1990); and, Beard v. Dugdale, 741 P.2d 968 (Utah Ct.App.1987).