author: BUETTNER, J:

text:
    2003 OK CIV APP 104
    Kirk ERICKSON and Orel C. Dugger, Plaintiffs/Appellants, v. CITY OF TAHLEQUAH, Oklahoma and Jerry Cook, Mayor, Defendants/Appellees.
    No. 98,151.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Sept. 2, 2003.
    Certiorari Denied Dec. 1, 2003.
    Monte W. Strout, Tahlequah, for Plaintiffs/Appellants.
    Weldon W. Stout, Wright, Stout, Fite & Wilburn, Muskogee, William H. Bliss, Tah-lequah, for Defendants/Appellees.
    Michael Minnis, David MeCullough, Jason Thompson, Michael Minnis & Associates, P.C., Oklahoma City, for Amicus Curiae Oklahoma Press Association.
   BUETTNER, J:

T1 On August 6, 2001, the City of Tah-lequah approved a resolution calling for a special election for the purpose of increasing the city sales tax by 1/2 of one percent. Tablequah did not follow the law's requirement that notice of a special election be given by publishing the resolution at least ten days before the date of a special election in a newspaper of general circulation in the municipality. Consequently, the election is void. We therefore reverse the trial court which found "substantial compliance" with the election law and validated the election.

T2 The election was held October 9, 2001 and, by an eleven vote margin, the proposal passed. The sales tax was to last for up to two years beginning January 1, 2002, and the purpose was to make a gift to the Regents of Northeastern State University, located in Tahlequah, for renovations of athletic facilities. Legal notice of the special election was published about a month after the election.

T3 Tahlequah is a charter city and its charter provides that the election laws of the State of Oklahoma are applicable. Title 11 ©.$.1991 § 16-101 states:

Notice of a general municipal election or a special election shall be given by publishing the resolution of the municipal governing body calling for the election. The resolution shall set forth:
1. The date or dates of the election; and
2. The offices to be filled or the questions to be voted upon at the election.
The resolution shall be published in a newspaper of general circulation in the municipality at least ten (10) days before the beginning of the filing period for a general municipal election, or at least ten (10) days before the date of a special election. If there is no newspaper of general circulation in the municipality, the notice shall be given by posting a copy of the resolution in at least five (5) public places in the municipality.

14 Until Walker v. Oak Cliff Volunteer Fire Protection District, 1990 OK 31, 807 P.2d 762, was decided, Oklahoma followed a long line of cases applying the concept of "substantial compliance" to the notice provisions of special election laws. Town of Grove v. Haskell, 1909 OK 236, 104 P. 56, states the principles in its syllabus:

... but where, in a controversy arising out of an election held, it is shown that the provisions in reference to notice were substantially complied with, and there is no averment or showing that the electors did not have actual notice or knowledge of the election, and failed to participate therein by reason thereof, the same will not be held void or set aside. The vital and essential question in such cases is, Did the want of notice or knowledge result in depriving a sufficient number of the electors of the opportunity to exercise their franchise as to change the result of the election? If not then the will of the electors, as expressed, should be sustained.
*e ock
Elections are the ultimate expression of the sovereign will. When fairly expressed-that is, free from taint of fraud or charge of improper conduct-it becomes the duty of courts to sustain them, where it can be done by a liberal construction of the laws relating thereto, rather than defeat them by requiring a rigid conformity to technical statutory directions, which do not affect the substantial rights of the electors. All reasonable presumptions as to their regularity will be indulged, and the penalty of disfranchisement will not be visited upon a qualified voter where he is not at fault, except in response to a plain mandatory requirement of the statute.

T5 "Substantial compliance" and a presumption of regularity of special elections gave way to "strict compliance" with respect to the statutory notice requirements and special elections when Walker was decided. The governing body must adhere to the mandates of proper notice and of publication in a newspaper of general circulation in the municipality. If there is no newspaper of general circulation in the municipality, then notice may be given by posting in five public places in the municipality. There are no other statutory methods of giving notice of a special election.

T6 Walker involved a special election to establish a fire protection district. It was undisputed that there was no compliance with the statutory notice requirements. Title 19 0.9$.1981 § 901.1 et seq. authorized creation of fire protection districts by land title holders of unincorporated parts of a county. With respect to notice of a special election for establishing the fire protection district, 19 O0.$.1981 $ 902.3 required the county clerk to cause notice of the election to be given by publication onee a week for two successive weeks in a newspaper of general cireulation in the territory comprising the proposed district. The notice had to contain the time and place of the election and the boundaries of the proposed district. Despite the fact that no proper statutory notice was given, there was an article about the proposal in the newspaper of the county seat the day before the election and an advertisement for ballot bids was also published. The date of the election was included in the two items. The minutes of the county commissioners' meetings were published in the newspaper of the county seat three times before the election. Members of the volunteer fire department passed out flyers house-to-house in the proposed district and notices were sent home with school children riding buses in the proposed district. The trial court found these efforts constituted substantial compliance with the notice requirement. In reversing, the Oklahoma Supreme Court stated at T1, p. 765, "We find: 1) that an election to create a fire protection district is void unless it is preceded by publication notice for two weeks in a newspaper of general circulation in the territory comprising the proposed district as required by 19 0.8.1981 § 901.3; ...." The Walker Court explained that special elections are not set on a date certain and voters might not be aware that an election is scheduled. A relaxed standard might apply to general elections because the public is presumed to know when the election is to be held. Underlining a salient point, the Walker Court stated at 19, p. 766, "Even if the Court were to adopt substantial compliance as a standard of review, the election would still be invalid. The record reflects that there was absolutely no compliance with the statutory required notice." (Emphasis in original.)

T7 The facts in the case at bar are similar to those in Walker. A special election was approved by the municipal governing body, but there was no attempt by that body to comply with the statutory notice requirements. The council's meeting minutes were published five times, there were yard signs about the proposed sales tax, there were letters to the editor, for and against the tax, and there was testimony from an official that the voter turn-out was average for a special election. There were articles in newspapers, there were "vote yes" advertisements in newspapers, there were "vote yes" stickers which were worn to civic meetings, there were flyers handed-out at high school tail gate parties, and there were radio ads. A sample ballot was posted at the county election board.

T8 The Oklahoma Supreme Court's holding in Walker compares "publicity" to the statutorily required notice and states: "Obviously, newspaper articles, comments, or similar publicity cannot lawfully substitute for the mandatory requirements of 19 O.S. § 901.3." 1990 OK 31, 19, 807 P.2d at 766. There was certainly substantial publicity regarding the special election in Tahlequah. However, the governing body did not comply with the statutory notice requirement in any manner. This is not a case of defective statutory notice giving rise to a question of substantial compliance. Rather, there was no required notice given at all. We are obligated to follow Walker. The special election is void.

T9 We REVERSE the order of the trial court, and remand the case to the District Court for further proceedings consistent with this opinion.

ADAMS, P.J., and JOPLIN, C.J., concur.

      . The City makes a half-hearted argument that the applicable Charter provision only applies to elections for municipal officers. However, the cited provision, after referring to elections for municipal officers then states: "and where applicable all provisions of the election laws of the State shall govern at all elections held by the City of Tahlequah." No other authority is cited. We hold that state election laws applied to the special election.

      . See Justice Simms dissent in Walker, 1990 OK 31, 807 P.2d at 769.

      . Town of Grove involved a special election to change a county seat. The proclamation for the election required publication of the proclamation for six weeks in the Grove Sun, and posting of the proclamation for six weeks in certain designated towns. Newspaper publication was accomplished as required, but the postings were between five and six weeks. Thus, the deficiency was a shortened notice period rather than no compliance at all.

      . The second holding in the Walker case is: "2) that equity will intervene to cure defects in elections called to form fire protection districts even though 26 0.$.1981 § 8-109 precludes contesting the election."


source: Caselaw Access Project

author: KENNETH L. BUETTNER, Judge.

license: Public Domain

text:
    2003 OK CIV APP 108
    Pauline L. ROGERS, Plaintiff/Appellant, v. BURGER KING CORPORATION, Carey Johnson Oil Company, Inc., and BRU Corporation, Defendants/Appellees.
    No. 99,402.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Nov. 21, 2003.

      Steven K. McKinney, Elrod Law Firm, Siloam Springs, AR, for Plaintiff/Appellant.

      Rodney C. Ramsey, Britton, Gray, Ramsey and McCutcheon, P.C., Oklahoma City, OK, for Defendants/Appellees.
   Opinion by

KENNETH L. BUETTNER, Judge.

T1 Plaintiff/Appellant Pauline L. Rogers appeals the summary judgment granted to Defendant/Appellee Burger King Corporation (Burger King), as well as the order dismissing Rogers's claims against Carey Johnson Oil Company, Inc. (Carey Johnson), and BRU Corporation (BRU). Because we find Rogers could prove no set of facts which would entitle her to relief in this case, we affirm the dismissal of the claims against Burger King and Carey Johnson. We affirm the dismissal of Rogers's claim against BRU because the Workers' Compensation Court had exclusive jurisdiction over Rogers's claim against her employer.

T2 In her Petition, Rogers asserted that she was employed as a night porter at the Burger King restaurant on the Cherokee Turnpike in Delaware County. An EZ Go convenience store, which operated 24 hours a day, was located in the same building as the restaurant. Rogers alleged that on February 1, 2000, she reported to work at 10:00 p.m., the restaurant closed at 11:00 p.m., and the crew had left by 11:80 p.m.

T3 Rogers alleged there was no restroom facility within the restaurant and that she therefore used the restroom located in the common area of the facility. Rogers alleged that at 4:80 a.m. on February 2, 2000, she left the restaurant to go to the restroom. While she was in the restroom, a man, later identified as Larry Aragon, entered the restroom, tore down the stall door and forcibly removed Rogers from the restroom and led her at gunpoint to a stolen car. Rogers asserted that Aragon threatened to kill her, abducted her, and drove with her throughout eastern Oklahoma and western Arkansas for two hours, during which time he stopped the car twice in order to rape and sexually assault her. Rogers escaped at 6:30 a.m. and police took her to a hospital in Siloam Springs, Arkansas.

1 4 Rogers averred that BRU is the holder of a franchise purchased from Burger King, and that Burger King retains control and authority to approve the site location, design, and construction of the restaurant operated by BRU. Rogers also asserted that Burger King had control over the training manuals and training procedures of all franchise operations, including store security. Rogers asserted that Burger King retained sufficient control over the store to render it vicariously liable for any damages Rogers incurred. Rogers asserted that Carey Johnson owned and operated the EZ Go convenience store in the same building.

1[ 5 Rogers argued that "it was foreseeable that operating a retail facility that was open to the public 24 hours a day in a remote location created a hazard of criminal activity against any customer or employee...." Rogers argued that because of the remote location and the hours of operation, Burger King, Carey Johnson, and BRU had a duty to operate the facility in such a manner as to protect those lawfully on the premises from criminal activity. Rogers argued that Burger King, Carey Johnson, and BRU negligently breached that duty by failing to provide: 1) a panic button or other system to summon immediate help; 2) a surveillance system for the common areas of the facility; and 3) a system of established safety procedures to train employees in avoiding dangerous situations and responding to emergencies. Rogers argued that the negligence of Burger King, Carey Johnson and BRU was the proximate cause of the attack and the resulting injuries. Rogers also argued that the decision made by Burger King, Carey Johnson and BRU to operate a 24 hour business in a remote location with inadequate security measures showed a reckless disregard for her rights and she therefore asked for an award of punitive damages.

16 In its Answer, Burger King argued that Rogers had failed to state a claim on which relief could be granted, in part because it owed no duty to protect Rogers from criminal activity and had no notice of any- condition which presented a potential danger to Rogers. Burger King also asserted that it was not vicariously liable for the negligence of the owner or operator of the restaurant. Burger King lastly asserted Rogers was con-tributorily negligent and had assumed the risk of eriminal harm.

T7 In their Motion to Dismiss, Carey Johnson and BRU acknowledged the allegations made by Rogers and asserted in addition that Rogers was an employee of BRU, Rogers left the restaurant to go to a public restroom, and was abducted by a person who was not affiliated with any of the defendants. BRU argued that the Workers' Compensation Court offered the exclusive remedy for Rogers's claims against her employer, BRU, citing 85 0.98.2001 § 12. Carey Johnson argued that Rogers had failed to state a cause of action against it because it owed no duty to Rogers. Carey Johnson argued that Rogers had claimed that it was liable because it employed one 18 year old female employee in its 24-hour convenience store. Carey Johnson argued that none of those facts gave rise to a duty of care to Rogers, who was not its employee. Carey Johnson also asserted that it owed no duty to provide a system of established safety procedures to train employees, noting that Rogers had asserted that Burger King had control over the training of its employees. Carey Johnson also asserted it had no duty in Oklahoma to install a surveillance system or a panic button alarm system, or to provide security personnel on site. Carey Johnson also argued that a business owes no duty to protect invitees from criminal assault. Carey Johnson asserted a business owner does have a duty to summon police if it knows that a eriminal act is occurring, and Rogers's Petition indicated that Carey Johnson's employee did call police and therefore did not breach that duty.

8 In her response, Rogers asserted that although BRU owned the building which housed the Burger King restaurant and the convenience store, BRU and Carey Johnson shared control over the common area of the premises, in which she was attacked. Rogers asserted that BRU had the burden of proving that the Workers' Compensation Act afforded her exclusive remedy against BRU. Rogers also asserted that whether her injuries arose out of and in the course of her employment was an issue of fact which precluded dismissal. Rogers argued that the risk of a criminal attack was a purely personal risk not related to employment, and that she therefore could proceed in the district court rather than the Workers' Compensation Court.

T9 Rogers further argued that Carey Johnson had a duty to protect its invitees because it "should have reasonably foreseen the risk of an attack on a female using the restroom during early morning off-hours in a public place...." Rogers asserted that the unique. cireumstances of the location of the restaurant and convenience store on the turnpike gave rise to a duty to protect invitees from eriminal harm.

110 The trial court issued its Judgment dismissing Rogers's claims against BRU and Carey Johnson August 18, 2002. The trial court found that the allegations in the Petition failed to show that Carey Johnson had breached any duty owed to Rogers. The trial court also concluded that Rogers's sole remedy against BRU was to proceed in the Workers' Compensation Court. The court therefore dismissed Rogers's claims against those parties. That dismissed order was not certified for immediate review.

4 11 Burger King filed its Motion for Summary Judgment August 26, 2002. Burger King argued that Rogers had failed to state a claim against it because it was not Rogers's employer, and that as a franchisor, it was not liable for criminal acts occurring on property not owned by Burger King. Burger King also argued that Rogers had failed to present any evidence supporting her contention that Burger King exercised sufficient control over BRU to create an ageney relationship which may have made Burger King liable under respondeat superior. Burger King also argued that because it was not Rogers's employer, it did not have a duty to offer self-defense training to her, nor did it have a duty to install surveillance equipment or a panic button alarm system, or to have security personnel on site in an adjacent public restroom. Lastly, Burger King argued that the owner of the building had no duty to protect its invitees from third-party criminal activity and by extension there could be no duty on Burger King, as a franchisor, to protect Rogers from a third-party criminal assault in the public area of the building.

[ 12 In her Response, Rogers argued that Burger King retained sufficient control over the site location, the facility design, the training manuals, and training procedures for the Burger King restaurant at issue in this case, so that Burger King should be held vicariously liable for Rogers's injuries. The trial court issued its summary judgment order in favor of Burger King May 16, 2003.

{13 In her Petition in Error, Rogers asserts three issues: 1) whether workers' compensation is the exclusive remedy available against BRU; 2) whether Carey Johnson owed a duty to Rogers under the facts of this case; and 3) whether Burger King exercised sufficient control over BRU and the premises involved to create a duty toward Rogers. None of the parties attached any evidentiary materials to their pleadings in support of, or in opposition to, dismissal or summary judgment.

[1-3] "14 In addressing an appeal from a decision dismissing a petition for failure to state a claim, we review de novo whether the petition is legally sufficient, taking as true all of the allegations in the petition, together with all reasonable inferences which may be drawn from them. Crain v. Natl. Amer. Ins. Co., 2002 OK CIV APP 77, 52 P.3d 1035, 1038, citing 12 0.98.2001 $ 2012(B)(6). A petition must not be dismissed for failure to state a claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief. Id. In this case, Burger King couched its motion as one seeking summary judgment. However, because Burger King failed to attach evidentiary materials to support its motion, we will review the grant of the motion under the more rigorous standard required for orders dismissing a petition for failure to state a claim. The record on appeal contains no evidentiary materials. The parties have not indicated any dispute regarding the facts of the case.

- 15 We first address the claims made against Rogers's employer, BRU. The Workers' Compensation Act provides for payment of compensation, without regard to fault, for injuries arising out of and in the course of employment. 85 0.$.2001 § 11. The Act further provides that the liability prescribed "shall be exclusive and in place of all other liability of the employer ... at common law or otherwise, for such injury, loss of services, or death, to the employee,. ..." 85 0.$.2001 § 12 (emphasis added). Rogers relies on American Management Systems, Inc. v. Burns, 1995 OK 58, 903 P.2d 288, for her contention that her injuries did not arise out of and in the course of employment. In Burns, an employee traveled to Oklahoma to install computer software. During his time in Oklahoma, he checked into a local motel of his choice and was robbed and murdered at the motel. The Oklahoma Supreme Court determined that the murder occurred in the course of his employment, because he had traveled to Oklahoma as a work assignment. Id. at 291. The court found, however, that the murder did not arise out of his employment. Id. The court noted that an injury arises out of employment where it results from a risk which is reasonably connected to an assigned task. Id. The court found that the legislature had abandoned the "unknown assailant rule," which had previously allowed compensation for an attack by an unknown assailant occurring while the claimant was on the job and working. Id. at 292. The court concluded that there was no evidence that the risk of attack to the worker in Burns was greater than the risks encountered by the general public using lodging similar to that selected by the worker. Id. at 298.

116 An obvious distinction between this case and Burns is that the worker in Burns selected his own lodging for his off-duty time during a business trip, while Rogers did not select the restroom in which she was attacked while on the job. Indeed, Rogers averred that she had no choice but to use the public restroom in the building-which was adjacent to the restaurant. In Turner v. B Sew Inn, 2000 OK 97, 18 P.3d 1070, the Oklahoma Supreme Court held that a parking lot in front of the employer's business constituted part of the employer's premises where the owner of the building provided the parking lot for its tenants and their employees, and the employer acquiesced in its employees using the parking lot. In Turner, the court held that because the injury, a fall on a wet sidewalk, occurred on the employer's premises, the Burns holding was inapplicable. Id. at 1072. The court noted its statement in an earlier case involving a parking lot injury: "when the employee's presence in the workplace parking lot is unquestionably employment related, there is no need for the court to further inquire into the arising out of prong as a separate issue." Id. at 1076, citing Corbett v. Express Personnel, 1997 OK 40, 986 P.2d 982. The court concluded that the employee's presence in the parking lot was employment related and that her fall, due to the neutral risk of wet weather conditions, arose out of her employment and was compensable. By analogy, Rogers's use of the on-premises restroom was employment related. An employee's "personal comfort mission" to an employer-provided restroom facility is within the course of employment, and an injury sustained while on such a personal comfort mission is compensable. See Furr v. Wal-Mart, 1998 OK CIV APP 147, 966 P.2d 1198, cert. denied.

{17 In addition, we conclude that the Workers' Compensation Act affords the exclusive remedy against Rogers's employer, BRU, because the Oklahoma Supreme Court has held that a rape of an employee, though a willful and intentional criminal act, is an accident arising out of and in the course of employment. Wal-Mart Stores, Inc. v. Reinholtz, 1998 OK 11, 955 P.2d 223. In Rein-holtz, the court quoted its earlier holding:

When a willful injury is inflicted by a third party, who is the aggressor, upon a workman discharging the tasks he is engaged to perform, and the assault is not motivated solely by personal animosity, wholly disconnected from the employment, the resulting injury is regarded as accidental and as having arisen out of and in the course of employment.

Id. at 224, citing Mullins v. Tanksleary, 1962 OK 239, 376 P.2d 590 (citations omitted). 'To the extent Rogers has a claim against BRU, it must be pursued in the Workers' Compensation Court.

118 Under the allegations presented in Rogers's Petition, Rogers's allegations fail to show the existence of a duty on the part of Carey Johnson or Burger King to prevent the harm which occurred in this case. Absent a duty, there can be no negli-genee. Copeland v. Lodge Enterprises, Inc., 2000 OK 36, 4 P.3d 695, 700.

$19 An employer has a duty to furnish its employees with a reasonably safe workplace, but that does not include a duty to protect employees from all criminal assaults. McMillin v. Barton-Robison Convoy Co., 1938 OK 241, 78 P.2d 789, 182 Okla. 553 (disapproved in the context of landlord-tenant relationship by Lay v. Dworman, 1986 OK 85, 732 P.2d 455). In McMillin, an employee was murdered at work by robbers intent on stealing an automobile from the employer. 'The employee's widow charged the employer with negligence in failing to provide a reasonably safe place to work because the employer had located its business in a community infested with criminals. The court made the following statement regarding the argument that the location of the business created a duty to protect employees from criminal attack:

We are unable to see that an employer has a general duty to protect his employees from the assaults of criminals. We are likewise unable to see that there are any exceptional cireumstances in this case which would give rise to such a duty. To so find would be tantamount to saying that the town of Picher is a condemned community. We would be saying, in legal effect, that those who live there and those who engage in business there are not exercising the prudence and judgment of ordinary people. To hold what the plaintiffs want us to hold would result in saying that every business man in the town of Picher is guilty of negligence toward those he employs and is answerable to them for their damages suffered as the result of the act of some eriminal.

Id. at 790-791. This declaration answers Rogers's argument that the remote location of her workplace gave rise to a duty on the part of all of the defendants to protect her from criminal assault. Rogers would have this court rule that every operator of a 24 hour business located on a turnpike, away from a city, is negligent as a matter of law.

€20 McMillin and cases since have made clear that location alone is not sufficient to give rise to a duty to protect an employee or an invitee from criminal harm. Such a duty will be found only where the employer or invitor knows or has reason to know that the criminal acts are occurring or are about to occur. When the invitor or employer knows that the invitee or employee is in imminent danger, the invitor must act reasonably to prevent injury. See Taylor v. Hynson, 1993 OK 93, 856 P.2d 278, 281; and Folmar v. Marriott, Inc., 1996 OK CIV APP 51, 918 P.2d 86, 88. In Foimar we considered the duty of care owed by business invitees prescribed by the Restatement (Second) of Torts, § 344. That section, and Comment f following it, provide:

§ 344. Business Premises Open To Public: Acts Of Third Persons Or Animals
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
ock
f. Duty to police premises. Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or eriminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

Foimar involved an assault on patrons of a hotel bar in the parking lot outside the hotel. The plaintiffs argued that the hotel should have known from past experience that assaults in its parking lot were possible. 918 P.2d at 87-88. The court recognized, however, that the portion of Comment f which mentions past experience as giving rise to a duty of care had not been adopted in Oklahoma. Id. at 88. The court concluded that the rule remains in Oklahoma that a business invitor will not be liable for intentional or criminal acts of third parties unless the invitor has knowledge that the act is occurring or is about to occur and fails to act. Id. at 89.

T21 Rogers's Petition did not allege that Carey Johnson or Burger King had knowledge that the attack on her was occurring or was about to occur. Nor did Rogers allege there had been prior attacks at the restaurant. Rogers alleged only that the attack on her was foreseeable because of the remote location of the restaurant and because of the late hours of operation. We have found no authority to support a finding of a duty based on location or time of day alone. Taking as true all of the allegations of Rogers's Petition, we find that Rogers can prove no set of facts which would give rise to a duty to prevent the harm which occurred in this case. We therefore AFFIRM the trial court's orders dismissing Rogers's Petition for failure to state a claim for relief.

ADAMS, P.J., and JOPLIN, C.J., concur.

      . Rogers asserted that the EZ Go convenience store clerk heard the struggle and called 911, but that police did not arrive until 30 minutes later.

      . Aragon was arrested two days later and was convicted of rape, kidnaping, and forcible sodomy and is currently serving his sentences in the custody of the Oklahoma Department of Corrections.

      . Rogers asserted that: she sustained physical injuries in the attack for which she incurred medical expenses; she suffered emotional injury due to the fear of being infected with disease; the attack caused post-traumatic stress disorder; she was unable to work for a substantial period of time after the attack and had therefore suf fered lost wages.


author: LARRY JOPLIN, Chief Judge.

text:
    2003 OK CIV APP 107
    In the Matter of C.T., a Deprived Child. State of Oklahoma, ex rel. Department of Human Services, Plaintiff/Appellee, v. Sheri Tolson, Defendant/Appellant.
    No. 99,316.
    Court of Civil Appeals of Oklahoma, Division No. 8.
    Nov. 21, 2003.
    Sam C. (Van) Bingaman, III, Chickasha, OK, for Appellant.
    Robert W. Beal, Assistant District Attorney, Chickasha, OK, for Appellee.
    April Chasteen, David K. Ratcliff, Ivy, Ratcliff & Chasteen, Chickasha, OK, for Minor Child.
   Opinion by

LARRY JOPLIN, Chief Judge.

T1 Appellant Sheri Tolson (Mother) seeks review of the trial court's order entering judgment on a jury's verdict to terminate Mother's parental rights in and to her minor child, C.T. (Child), on the petition of the Appellee State of Oklahoma, by and through the Department of Human Services (DHS). In this appeal, Mother challenges the jury's general verdict as violative of her constitutional and statutory right to jury trial. Finding no error as alleged, however, we hold the order of the trial court should be affirmed.

T2 Child was born in January 2001. Apparently premature at birth, Child was determined to be "medically needy" and was taken into DHS custody due to Mother's lack of a home with working utilities, necessary for Child's medical care. Child was adjudicated deprived by stipulation in March 2001, and Mother agreed to abide by a service plan requiring her, inter alia, to exercise regular visitation with Child, and to obtain and maintain a home with working utilities.

3 In April 2002, DHS filed a petition to terminate Mother's parental rights on allegations of her failure to correct conditions (by obtaining a suitable home), 10 0.8. Supp.1998 §§ 7006-1.1(A)(5), and failure to maintain a relationship with Child for six months preceding the filing of the petition. 10 O.S. 7006-1.1(A)(2)(c). On consideration of the evidence, the jury returned a general verdict recommending termination of Mother's parental rights.

[ 4 In this appeal, Mother asserts the general verdict of the jury violates her constitutional right to jury trial for lack of specifically stated findings of fact by the jury on any statutory ground for termination of her parental rights, citing In re M.D.R., 2002 OK CIV APP 75, 50 P.3d 1160. There, the Court of Civil Appeals held:

The termination order merely states that Appellant "has failed to correct the conditions" and that termination of Appellant's rights "is in the best interests of said child." The specific statutory basis is not identified, necessary statutory findings are absent and the "conditions" are not identified. Although there appears to be evidence supportive of certain underlying facts in this case, the order appealed is fundamentally deficient and must be vacated.
The order terminating Appellant's parental rights is vacated and this matter is remanded to the trial court, not for a new trial, but with instructions for the trial court to enter a proper final order correcting the deficiencies described herein....

M.D.R., 2002 OK CIV APP 75, ¶¶ 8, 10, 50 P.3d 1160, 1162. On this authority, Mother asserts the jury as fact-finder should be required to make specific factual findings on all the statutory requisites for termination of her parental rights.

15 In this respect, however, the Oklahoma Constitution directs:

In all jury trials the jury shall return a general verdict, and no law in force nor any law hereafter enacted, shall require the court to direct the jury to make findings of particular questions of fact, but the court may, in its discretion, direct such special findings.

Okl. Const., Art. VII, § 15. Mother cites, and we find, no authority requiring a jury in parental-rights-termination actions to enter specific findings on each statutory ground for termination.

T6 In the present case, Mother does not dispute she was informed at the adjudicatory stage of these proceedings of the conditions in need of correction, and the necessity to maintain a relationship with child, as well as the consequences of her failure in these respects. State's petition to terminate set out the alleged statutory grounds for termination of Mother's parental rights that we have quoted. Mother appeared and presented evidence and testimony in defense to State's allegations. The jury was well-instructed on the requisites for termination of Mother's parental rights under the cited statutory provisions, and Mother made no request for specific findings and conclusions by the jury. There is competent evidence in the record to support a determination of all the requisites under either/both § 7006-1.1(A)(2)(c) or/and § 7006-1.1(A)(5) for termination of Mother's parental rights. The trial court's journal entry of judgment pursuant to the jury's verdict identifies the conditions in need of correction, the factual determination of Mother's failure to either correct the condition, or to maintain a relationship with Child as she was ordered, and the specific statutory bases for termination, and the trial court's journal entry of judgment is not flawed as was the case in M.D.R.

T7 We find the general jury verdict, and judgment thereon, free of legal error and supported by competent evidence. The order of the trial court is therefore AFFIRMED.

ADAMS, P.J., and BUETTNER, J., concur.

      . "[A] court may terminate the rights of a parent to a child in the following situations; provided, however, the paramount consideration in proceedings concerning termination of parental rights shall be the health, safety or welfare and best interests of the child:.... A finding that: a. the child has been adjudicated to be deprived, and b. such condition is caused by or contributed to by acts or omissions of the parent, and c. termination of parental rights is in the best interests of the child, and d. the parent has failed to show that the condition which led to the adjudication of a child deprived has been corrected although the parent has been given not less than the time specified by Section 7003-5.5 of this title to correct the condition;. ..."

      . "[A) court may terminate the rights of a parent to a child in the following situations; provided, however, the paramount consideration in proceedings concerning termination of parental rights shall be the health, safety or welfare and best interests of the child:.... A finding that a parent who is entitled to custody of the child has abandoned the child. For purposes of this paragraph the term 'abandonment' includes, but is not limited to, the following: . the parent {ails to establish and/or maintain a substantial and positive relationship with the child for a period of six (6) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for termination of parental rights. For purposes of this paragraph, 'establish and/or maintain a substantial and positive relationship' includes, but is not limited to: (1) frequent and regular contact with the minor through frequent and regular visitation and/or frequent and regular communication to or with the child, and (2) the exercise of parental rights and responsibilities. Incidental or token visits or communications shall not be sufficient to establish and/or maintain a substantial and positive relationship with the child;. ..."


author: LARRY JOPLIN, Chief Judge:

text:
    2004 OK CIV APP 4
    OIL WELL CEMENTERS, INC. and Petrosurance Casualty Company, Petitioners, v. Dale THOMPSON, Jr. and the Workers' Compensation Court, Respondents.
    No. 99,429.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Dec. 4, 2003.

      Michael C. Bell, J. Heath Lofton, McGi-vern, Gilliard & Curthoys, Tulsa, OK, for Petitioners.
    Greg Barnard, The Bell Law Firm, Norman, OK, for Respondent.
   LARRY JOPLIN, Chief Judge:

{1 Petitioners Oil Well Cementers, Inc. and Petrosurance Casualty Company (collectively, Employer) seek review of the trial court's order granting benefits for permanent total disability (PTD) to Respondent Dale Thompson, Jr. (Claimant). In this proceeding, Employer complains the trial court (1) erred in directing Claimant to reimburse Employer "the sum of $9,500.00 previously paid as an advance against any later award of permanent partial disability" (PPD) because, pursuant to the award for PTD, no further benefits for PPD will be paid; and (2) exceeded its authority in directing Employer to reimburse Claimant for personal aide services provided by Claimant's wife. Having reviewed the record, however, we discern no errors as alleged, and hold the trial court's order should be sustained.

2 Claimant asserted compensable single-event and consequential injuries arising out of and in the course of his employment with Employer in April 1996. After a trial in July 1996, the Workers' Compensation Court determined Claimant sustained compensable injuries to his head, neck, and low back, and awarded benefits for temporary total disability (TTD) and continuing medical treatment.

T3 Employer appealed, and a three-judge panel affirmed. Upon further review, the Court of Civil Appeals by unpublished decision sustained the order of the three-judge panel as supported by competent evidence. Oil Well Cementers, Inc. v. Thompson, Case No. 88,459 (Ok. Civ.App. Div. I, April 15, 1997)., In April and December 1998, the Workers' Compensation Court subsequently issued orders extending benefits for TTD.

[ 4 In February 20083, the parties appeared for trial on the issues of, inter alia, occurrence and cause of the alleged consequential injuries, psychological overlay, sexual dysfunction and disfigurement; extent and period of attendant disability, whether temporary or permanent, partial or total; necessity of continuing medical treatment, including in-home health care; and, reimbursement for in-home health care which Claimant's wife quit her regular employment to provide.

(5 At trial, Claimant testified to his partially paralyzed condition after neck surgery in October 1997 and consequent confinement to a wheelchair; his need for assistance, e.g., to exit/enter a vehicle, load/unload his wheelchair, stand, sit, dress, use the toilet, and bathe; his discomfort and/or inability to administer various treatments for his jJob-relat-ed injuries to himself; and, his reliance on his wife to assist him in most aspects of his everyday living. Claimant's wife corroborated Claimant's testimony concerning his impaired state and need for extensive assistance in everyday living; testified that she quit her employment after the October 1997 surgery to minister to Claimant's now-paraplegic needs; and, asserted that she rendered the necessary assistance to Claimant in addition to performing her regular household duties and parenting the parties' three children.

T6 In support of his position, Claimant offered, and the trial court admitted over employer's probative value objection, medical evidence argued to show wife's assistance "in every aspect of [Claimant's] daily living"; his need for a "twenty-four hour aide" "in the absence of [his] wife"; and wife's provision of "services for her husband in lieu of an aide or LPN," including the administration of necessary medical treatments.

T7 On consideration of the evidence, the trial court determined:

THAT on April 4, 1996, .... claimant sustained accidental personal injury to the NECK, BACK, AND HEAD WITH CONSEQUENTIAL PSYCHOLOGICAL OVERLAY, CONSEQUENTIAL SEXUAL DYSFUNCTION, AND CONSEQUENTIAL INJURY TO THE LEFT HIP, AND RIGHT HIP (DONOR SITES) arising out of and in the course of claimant's employment.
THAT solely as a result of said injury, claimant is TOTALLY AND PERMANENTLY DISABLED ... therefore [Employer] shall pay [Cllaimant compensation ... from SEPTEMBER 30, 2001 and continuing until further order of this Court, 86 weeks and 4 days have acerued and shall be paid in lump sum....
--of, 0
THAT the [Claimant is directed to reimburse the [Employer] the sum of $9,500.00 previously paid as an advance against any later award of [PPD].
- 16. -
THAT [Employer] is directed to reimburse the claimant for personal aide services provided by claimant's spouse from DECEMBER 10, 1997 to JUNE 1, 1999, and from JULY 1, 1999 to FEBRUARY 24, 2008, at a rate of $8.00 per hour, 12 hours per day, 7 days per week ($672.00 per week). During this period of time, the claimant's spouse was prohibited from performing work outside of the home to care for her husband as no other person was made available to assist the claimant in the essential functions of living. The services performed were in the nature of that customarily performed by a personal aid or caretaker.
- 17. -
THAT the Court has specifically determined that in the State of Oklahoma no license is required for a person to perform the services customarily performed by a personal aid or caretaker.
- 18. -
THAT [Employer] is directed to reimburse the claimant for personal aide services provided by the claimant's spouse from FEBRUARY 24, 2008 and CONTINUING at a rate of $8.00 per hour, 2 hours per day and 7 days per week until further order of the court.. ...

Employer now seeks review in this Court.

18 In its first proposition (without citation of authority), Employer complains the trial court erred in directing Claimant "to reimburse [Employer] the sum of $9,500.00 previously paid as an advance against any later award of" PPD. Here, Employer argues that because the trial court adjudicated Claimant entitled to benefits for permanent total disability, Claimant will never receive "any later award" for permanent partial disability from which to reimburse Employer for the advance. So, says Employer, the order of the trial court must be "reformed" such that "said advance should be 'reimbursed' by the Claimant from the acerued portion of the [PTD] benefits."

[ 9 However, the trial court's order merely describes the circumstances surrounding the original advance, ie., that Employer advanced Claimant a sum on the expectation that Claimant would, at the very least, receive an award for PPD, and directs Claimant to reimburse Employer for the advance. We read nothing in the trial court's order which restricts the source of Claimant's reimbursement obligation to only permanent partial disability benefits as Employer avers.

110 In its second proposition, Employer argues that the home health care services provided to Claimant by his wife do "not qualify as medical attention" for which it is bound to pay under 85 0.8. § 14(A). In its third proposition, Employer argues the Workers' Compensation Court lacked authority to direct reimbursement "for personal and/or normal household duties performed by a family member." See, eg, Quinn v. Archbishop Bergan Mercy Hospital, 232 Neb. 92, 439 N.W.2d 507, 510, 511 (Ne.1989)

111 The law in effect at the time of the injury controls a claimant's right to compensation. See, eg., 85 O.S. Supp.1994 § 3.6(F) ; Special Indem. Fund v. Archer, 1993 OK 14, 847 P.2d 791; Knott v. Halliburton Services, 1988 OK 29, 752 P.2d 812. At the time of Claimant's injury (and now), § 14(A) of title 85 held (and holds) an employer liable for its worker's reasonable "medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus as may be necessary after the injury." 85 0.8. Supp.1994 § 14(A). Now see, 85 00.98.2001 $ 14(A).

112 Scarcely four months ago, the Court of Civil Appeals addressed and rejected the precise challenges raised by Employer in the present case. Wilson Paving, Inc. v. Abernathy, 2003 OK CIV APP 72, 76 P.3d 103. In Wilson Paving, the Court of Civil Appeals held that where a family member provides in-home care that would otherwise be provided by a professional, such care fell within the "other attendance" language of § 14(A):

Claimant's parents provide the care that would otherwise be provided by an in-home nurse. We decline to interpret the statute so narrowly that it would limit "other attendance" to Heensed health care providers. If a non-nurse, especially a parent or other family member, is capable and willing to provide home nursing care then that should be acceptable and, in our view, is contemplated by the statute. "[Olther attendance" is not defined in or limited by the statute. This implies an understanding that the spectrum of care needed by injured employees is probably as varied as the injuries employees receive. As long as the care being provided is equivalent to some type of medical or health care it should make no difference that a parent is the care provider. Therefore, compensation for such care, whether by parents, guardians, or medical personnel, is proper. The Compensation Court's conclusion was correct and the services provided by Claimant's parents are within the meaning of the medical care set out in 85 0.8.2001 $ 14(A). ...

2003 OK CIV APP 72, 17, 76 P.3d at 105. (Emphasis original.)

4 13 In the present case, Claimant presented competent evidence that, in virtually every aspect of his every day living, he required in-home care and assistance, which, if rendered by a professional, would be considered necessary medical treatment or "other attendance" contemplated by § 14. Claimant also presented competent evidence of the value of those services if rendered by a professional. Claimant further presented competent evidence that his wife provided the in-home care, which, in her absence, a professional would have been required and hired to perform, and that his wife rendered him his necessary care in addition to performing her normal household and parenting duties.

14 On this evidence, the trial court held "[tlhe services [wife] performed were in the nature of that customarily performed by a personal aid or caretaker," and that no license was required to provide those services. The trial court consequently directed Employer to reimburse Claimant for the value of the in-home care services previously rendered by his wife at the rate of $8.00 per hour for twelve hours per day, seven days per week, for that "period of time claimant's spouse was prohibited from performing work outside of the home to care for her husband as no other person was made available to assist the claimant in the essential functions of living." The trial court also directed Employer to reimburse Claimant for the value of his wife's continuing in-home care to be rendered in the future at the rate of $8.00 per hour for two hours per day, seven days per week.

{15 Having reviewed the record, we hold the trial court committed no legal error in directing Employer to pay for wife's in-home care of Claimant as a reasonable and necessary "other attendance" expense under § 14(A). Wilson Paving, Inc., 2003 OK CIV APP 72, ¶ 7, 76 P.3d at 105. We further find competent evidence to support the trial court's determination of the value of those services performed by wife above and beyond her usual "household duties." Wilson Paving, Inc., 2003 OK CIV APP 72, ¶ 8, 76 P.3d at 105-106.

' 16 The order of the trial court is therefore SUSTAINED.

ADAMS, P.J., and BUETTNER, J., concur.

      . Op. by Joplin, J.; Hansen, P.J., and Buettner, J., concurring.

      . Mandate issued, May 15, 1997.

      . Particularly, penile injections and use of suppositories.

      . "In determining what care is compensable by the injured claimant, this court has distinguished between care which is medical, and therefore recoverable, and purely custodial or housekeeping services, which are not recoverable"; "The Workers' Compensation Court determined that the services performed by the home health care providers were normal housekeeping services and were not medically necessary[] ... [and] [slince there is evidence supporting the compensation court's judgment, the judgment is affirmed."

      . Now see, 85 0.$8.2001 § 3.6(F).


author: GREENWOOD, Judge:

text:
    2003 UT App 414
    Myrta ROSAS, as the natural mother of Alvaro Estrada, a minor, Plaintiff, v. Gary M. EYRE, father and natural guardian of Gary Elliott Eyre, a minor; Gary Elliott Eyre, individually; and Does I-X, Defendants, Third-Party Plaintiffs, and Appellants, v. Milbank Insurance and Does I-X, Third-Party Defendants and Appellee.
    No. 20020898-CA.
    Court of Appeals of Utah.
    Nov. 28, 2003.

      Robert B. Breeze, Salt Lake City, for Appellants.
    Roger H. Bullock and James D. Franckow-iak, Strong & Hanni, Salt Lake City, for Appellee.
    Before Judges DAVIS, GREENWOOD, and THORNE, Jr.
   OPINION

GREENWOOD, Judge:

T1 Gary E. Eyre, defendant and third-party plaintiff, appeals from the trial court's grant of summary judgment in favor of third-party defendant, Milbank Insurance (Mil-bank). Eyre argues the trial court erred when it concluded that Milbank had no duty to defend a lawsuit filed against Eyre by plaintiff, Myrta Rosas. Milbank argues that this court does not have jurisdiction to hear this appeal because Eyre failed to timely file a notice of appeal, and that even if this court does have jurisdiction, the trial court's grant of summary judgment was correct. Milbank further argues that Eyre's claim is barred by collateral estoppel. We affirm.

BACKGROUND

T2 On January 18, 2001, Eyre, a fifteen, year-old student, attacked and seriously injured fellow student, Alvaro Estrada, in a hallway of West High School. Estrada suffered from spina bifida and was confined to a wheelchair. Eyre punched Estrada in his chest, stomach, and the back of his head. Eyre then pushed Estrada out of his wheelchair, leaving Estrada lying on the ground. During the attack, Estrada sustained a perforated bladder, for which he ultimately underwent surgery.

[3 A few days later, Eyre met with police and signed a written statement in which he admitted attacking Estrada. This led to the State charging Eyre with aggravated assault, in violation of Utah Code Annotated section T6-5-103 (1999). On March 1, 2001, the Third District Juvenile Court adjudicated that the State had proven, beyond a reasonable doubt, the aggravated assault charge.

14 On July 31, 2001, Estrada, through his mother, Myrta Rosas, filed a complaint against Eyre, in which he alleged in part that the "action arose as a consequence of an assault"; that "[oln January 18, 2001, ... Estrada, in a wheelchair due to spina bifida, was pushed by Defendant, Gary Eyre, who knocked him out of his wheelchair"; and that Estrada's injuries were "a direct and proximate result of [Eyre's] wrongful acts, omissions, negligence and recklessness." Estrada subsequently amended his complaint to add Gary M. Eyre (Eyre Sr.), Eyre's father, to the complaint. In addition, the amended complaint alleged that Estrada had engaged in a battery rather than an assault.

T5 Eyre Sr. filed a third-party complaint against Milbank, which had provided homeowner's insurance coverage to Eyre Sr. on the date Eyre assaulted Estrada In the complaint, Eyre Sr. alleged that Milbank had wrongfully refused to defend Estrada's claim against Eyre. Milbank denied that it had a duty to defend Eyre.

T 6 Accordingly, Milbank filed a motion for summary judgment on the basis that its homeowner's policy only provided liability coverage for accidental occurrences, and consequently, it had no duty to defend Estrada's intentional tort claim. After a hearing, the trial court granted Milbank's motion for summary judgment. Estrada's attorney, who was present at the summary judgment hearing, agreed with the trial court's ruling, noting that "the amended complaint clearly sound[ed] ... in an intentional tort." The trial court entered a minute entry granting the motion for summary judgment and directing Milbank to prepare a final order.

T7 Milbank prepared the final order and served it on Eyre on August 12, 2002. The order stated, inter alia, that Milbank was "entitled to summary judgment ... on the ground that plaintiff's claims against Gary E. Eyre [were] not covered as an occurrence under the policy." On August 16, 2002, Eyre filed an objection to Milbank's proposed order. The basis for the objection was that Milbank's order failed to "include a specific recitation that the Court found that the question of coverage was determined by the last Amended Complaint of Estrada and not by the terms of the insurance policy itself." Eyre's objection was accompanied by a copy of his own proposed order.

8 Without ruling on Eyre's objection, the trial court signed Milbank's order on August 19, 2002 (the August Order), and entered it in the court file on August 21, 2002. On October 4, 2002, the trial court reviewed both parties' proposed orders and signed Mil-bank's order (the October Order), noting that "it correctly conform[ed] to the ruling the court made." On October 28, 2002, Eyre filed his notice of appeal from the trial court's grant of summary judgment.

ISSUES AND STANDARDS OF REVIEW

T9 Milbank argues that because Eyre did not timely appeal from the August Order, this court does not have jurisdiction to hear his appeal. "Whether appellate jurisdiction exists is a question of law...." Pledger v. Gillespie, 1999 UT 54,¶ 16, 982 P.2d 572.

110 Eyre argues that the trial court erred in granting Milbank's motion for summary judgment. "Summary judgment is granted only when 'there is no genuine issue as to any material fact' and 'the moving party is entitled to judgment as a matter of law.' " Bearden v. Croft, 2001 UT 76,¶ 5, 31 P.8d 537 (quoting Utah R. Civ. P. 56(c)). "Whether the trial court properly granted summary judgment is a question of law which we review for correctness, according no deference to the trial court's decision." Fire Ins. Exch. v. Rosenberg, 930 P.2d 1202, 1204 (Utah Ct.App.1997).

ANALYSIS

I. Jurisdiction

11 Milbank argues that this court should dismiss Eyre's appeal for lack of jurisdiction based on Eyre's failure to timely appeal from the August Order. Milbank asserts that under the Utah Rules of Appellate Procedure, Eyre's time period for filing an appeal expired on September 20, 2002, and that Eyre waited until October 28, 2002 before he filed his appeal.

1 12 An appeal may be taken from all final district court orders and judgments. See Utah R.App. P. 3(a). Unless there is a final order, this court lacks jurisdiction and must dismiss the appeal. See State v. Rawlings, 829 P.2d 150, 158 (Utah Ct.App.1992). Generally, a notice of appeal from a final order or judgment is timely only if filed "within 80 days after the date of entry of judgment or order appealed from." Utah R.App. P. 4(a). However, rule 4(b) of the Utah Rules of Appellate Procedure provides in relevant part:

If a timely motion under the Utah Rules of Civil Procedure is filed in the trial court by any party (1) for judgment under Rule 50(b); (2) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) under Rule 59 to alter or amend the judgment; or (4) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any such motion.

%13 In this case, it is undisputed that Eyre did not timely file his notice of appeal from the August Order granting Milbank's motion for summary judgment. However, this court nonetheless has jurisdiction to hear Eyre's appeal if his objection to Mil-bank's proposed order qualifies under rule 4(b) as a motion that "suspends the appeal period until 'entry of the order denying' it." Regan v. Blount, 1999 UT App 154,¶ 15, 978 P.2d 1051 (per curiam) (quoting Utah R.App. P. 3(a)). In resolving this jurisdictional question, we consider only whether Eyre's objection qualified as a rule 59(e) motion to alter or amend the judgment.

T 14 In Reeves v. Steinfeldt, 915 P.2d 1073 (Utah Ct.App.1996), this court addressed the issue of whether Steinfeldt's objection to Reeves's findings and conclusions, filed after the final judgment had been signed and entered, constituted a postjudgment motion under rules 52 or 59 of the Utah Rules of Civil Procedure. See id. at 1075. Recognizing that Steinfeldt was doing more than merely objecting to Reeves's proposed findings and judgment, we concluded that Stein-feldt's objection was "in substance a Rule 59 motion, inasmuch as it ask[ed] the court to alter its findings and to amend its conclusions and judgment." Id. at 1077 (footnote omitted); see also DeBry v. Fidelity Nat'l Title Ins. Co., 828 P.2d 520, 522-28 (Utah Ct.App.1992) ("Regardless of how it is captioned, a motion filed within ten days of the entry of judgment that questions the correctness of the court's findings and conclusions is properly treated as a post-judgment motion under either [rJules 52(b) or 59(e)." (footnote omitted)).

{15 In this case, Eyre objected to Mil-bank's proposed order because it failed to "include a specific recitation that the court found that the question of coverage was determined by the last Amended Complaint of Estrada and not by the terms of the insurance policy itself." Eyre's objection was accompanied by a copy of his own proposed order. In other words, Eyre was not only objecting to Milbank's proposed order, but was also "urgling] the court to amend its findings and to alter its legal conclusions and judgment." Reeves, 915 P2d at 1077. Therefore, Eyre's objection to Milbank's proposed order was "in substance a rule 59[ (e)] motion" to alter or amend judgment. Id.

{16 Moreover, although a rule 59(e) motion is technically a postjudgment motion, which cannot be served any "later than 10 days after the entry of the judgment," Utah R. Civ. P. 59(e), we have previously held that "a motion under the Utah Rules of Civil Procedure of the type described in Utah Rule of Appellate Procedure 4(b) that is filed prior to the entry of the judgment is timely for purposes of tolling the appeal period." Regan, 1999 UT App 154 at ¶ 6, 978 P.2d 1051. Therefore, although Eyre filed his objection prior to the entry of the trial court's order granting summary judgment, it nonetheless qualified as a timely post-judgment motion that "suspend[ed] the appeal period until 'entry of the order denying' it." Id. at 15 (quoting Utah R.App. P. 8(a)).

§17 Having determined that Eyre's objection constituted a timely post-judgment motion under rule 59, the only remaining issue is when, if at all, the trial court ruled on Eyre's objection. It is clear from the record that when the trial court entered the August Order, it was not ruling on Eyre's objection, either explicitly or implicitly. As we have previously noted, "[the mere entry of a final judgment inconsistent with but silent regarding a post-trial pre-judgment motion does not dispose of the motion by necessary implication unless the surrounding circumstances indicate that the trial court considered and rejected the motion." Id. at T7. Eyre filed his objection on August 16, 2002, a mere three days before the trial court signed the August Order. There is nothing in the ree-ord that indicates that the trial court addressed, or was even aware of, Eyre's objection when it signed the August Order. Therefore, we conclude that the trial court did not rule on Eyre's objection when it signed the August Order.

118 On the other hand, when the trial court signed and entered the October Order, it did so only after considering both of the parties' proposed orders. The trial court noted that it signed Milbank's order because "it correctly conform{[ed] to the ruling the court made." Therefore, the trial court implicitly ruled on Eyre's objection when it signed and entered the October Order. See Morgan v. Morgan, 875 P.2d 563, 564 n. 1 (Utah Ct.App.1994) (noting that when trial court signed plaintiff's proposed order, it implicitly ruled on defendant's objections to plaintiff's proposed order because defendant's objections were before trial court at the time). Accordingly, because Eyre filed his notice of appeal on October 28, 2002, which is within thirty days of the October Order, we hold that this court has jurisdiction to hear his appeal.

IL Summary Judgment

19 The trial court determined that Mil-bank owed Eyre no duty to defend Estrada's underlying claim against Eyre because the incident giving rise to Estrada's claim "was not covered as an occurrence under [Mil-bank's] policy." On appeal, Eyre argues that the trial court erred because Alvaro accidently fell out of his wheelchair. According to Eyre, this "accident" qualified as an "occurrence" under Milbank's policy, and therefore, Milbank owed Eyre a duty to defend him in the underlying action brought by Estrada. We disagree.

20 Milbank issued its homeowner's policy to Eyre Sr. for the policy period from September 2, 2000, to September 2, 2001. The relevant portions of the homeowner's policy provided as follows:

SECTION II-LIABILITY COVERAGES COVERAGE B-Personal Liability
If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:
1. pay up to our limit of lability for the damages for which the insured is legally . liable; and
2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent
DEFINITIONS
5. occurrence means an accident including exposure to conditions, which results, during the policy period, in:
a. bodily injury; or
b. property damage.
SECTION II-EXCLUSIONS
1. Coverage E-Personal Liability and Coverage F-Medical Payments to Others do not apply to bodily injury or property damage:
a. which is expected or intended by the insured....

T21 "As a general rule, an insurer's duty to defend is determined by comparing the language of the insurance policy with the allegations in the complaint" Fire Ins. Exch. v. Estate of Therkelsen, 2001 UT 48,121, 27 P.3d 555 (quotations and citations omitted). "In such a case it would be error for the trial court to consider extrinsic evidence, as it is wholly irrelevant to the issue of whether the insurer has a duty to defend its insured." Id. at 128 (footnote omitted). "However, if ... the parties make the duty to defend dependent on whether there is actually a 'covered claim or suit, extrinsic evidence would be relevant to a determination of whether a duty to defend exists." Id. at 125. Therefore, we must first determine whether Milbank's policy made the duty to defend dependent on the allegations in the complaint or on extrinsic evidence.

T22 As an example of a policy where the duty to defend is determined by the allegations contained in the complaint, the court in Therkeisen cited to a " 'standard homeowners policy [which] provides that the insurer will "provide a defense at [the insurer's] expense by counsel of [the insurer's] choice, even if the suit is groundless, false or fraudulent." * " Id. at M 23 (second and third alterations in the original) (citations omitted). On the other hand, as an example of a policy where extrinsic evidence could be considered in determining whether a duty to defend existed, the court cited to "an insurance policy that described the duty to defend as follows: 'At our expense and with attorneys of our choice, we will defend an insured against any covered claim or suit' " Id. at 124 (quoting Fire Ins. Exch. v. Rosenberg, 980 P.2d 1202, 1208 (Utah Ct.App.1997)).

€23 Milbank's policy stated that "we will ... provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent." Therefore, Milbank's policy made the duty to defend dependent upon the allegations in a complaint rather than on extrinsic evidence.

124 However, this does not mean Milbank was required to defend any allegation against someone insured under its homeowner's policy. An insurer's duty to defend extends only to "any complaint alleging facts which, if proven, would render the insurer liable for indemnification of its insured." Simmons v. Farmers Ins. Group, 877 P.2d 1255, 1258 n. 3 (Utah Ct.App.1994). The provision of Milbank's policy relating to liability coverage provides that "[ilf a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence," Milbank will pay "for damages for which the insured is legally liable." The policy further defines the term "occurrence" as "an accident, including exposure to conditions, which results ... in: a. bodily injury; or b. property damage." Therefore, Milbank only had a duty to defend Estrada's underlying claim if Estrada's complaint alleged that his injuries were the result of an "accident."

125 In Therkeisen, the court defined the word "accident" as follows:

the word [accident] is descriptive of means which produce effects which are not their natural and probable consequences.... An effect which is the natural and probable consequence of an act or course of action is not an accident, nor is it produced by accidental means. It is either the result of actual design, or it falls under the maxim that every man must be held to intend the natural and probable consequence of his deeds.

Id. at 115 (alteration in original) (quotations and citations omitted).

126 It is clear that the allegations contained in Estrada's amended complaint were not based on an "accident," as defined by the court in Therkelsen. The only cause of action listed in the complaint "arose as a consequence of a battery." Moreover, the facts alleged in the complaint clearly demonstrate that a cause of action based solely on an intentional tort was intended. The complaint stated that "Estrada, in a wheelchair due to spina bifida, was pushed by Defendant, Gary Elliott Eyre, who knocked him out of his wheelchair." Therefore, because the allegations contained in Estrada's complaint arose out of an intentional tort, for which there was no coverage under Milbank's homeowner's policy, Milbank's duty to defend, including its duty to defend groundless or fraudulent claims, did not extend to Estrada's underlying claim against Eyre.

T27 Accordingly, we hold that the trial court properly granted Milbank's motion for summary judgment as it related to Milbank's duty to defend under its homeowner's policy.

CONCLUSION

T28 Eyre's objection to Milbank's proposed order, although filed prior to the entry of judgment, is properly considered a post-judgment motion to alter or amend the judgment under rule 59(e) of the Utah Rules of Civil Procedure. Consequently, it qualifies as a motion under rule 4(b) of the Utah Rules of Appellate Procedure that suspends the time to appeal until the trial court has ruled on the motion. The trial court did not rule on Eyre's objection until October 4, 2002. Eyre timely filed his notice of appeal on October 28, 2002. Therefore, we hold that this court has jurisdiction to hear Eyre's appeal.

1129 With respect to the merits of Eyre's appeal, we affirm the trial court's grant of Milbank's motion for summary judgment. Milbank was not obligated to defend Estrada's claim against Eyre because the allegations in Estrada's complaint were based solely on the intentional tort of battery, which was not covered as an "occurrence" under Milbank's policy. Therefore, we hold that the trial court did not err in granting summary judgment to Milbank. We affirm.

T 30 WE CONCUR: JAMES Z. DAVIS and WILLIAM A. THORNE JR., Judges.

      . Despite this adjudication, during a deposition taken several months later, Eyre denied thai he had ever assaulted Estrada. Indeed, Eyre claimed he never saw Estrada until the date of his juvenile court trial.

      . Gary M. Eyre was subsequently dismissed from the action by stipulation of the parties.

      . The minute entry incorrectly stated that the "Iclourt denies Motion for Summary Judgment."

      . The language in the October Order was identical to that of the August Order.

      . Defendant's motion clearly does not meet the requirements of any of the other motions listed under rule 4(b) of the Utah Rules of Appellate Procedure. It is not a motion for judgment notwithstanding the verdict under rule 50 because no verdict was ever rendered. See Viah R. Civ. P. 50(b). Nor is it a motion to amend or make additional findings of fact under rule 52 because a decision to grant or deny a motion for summary judgment is not based on findings of fact. See Utah R. Civ. P. 52(b). Finally, Eyre's objection is not a motion for a new trial under rule 59 because this case was never tried. See Utah R. Civ. P. 59(a).

      . Although Eyre claims that Estrada accidentally fell out of his wheelchair, he does not argue on appeal that he negligently caused Estrada to fall. 'As stated earlier, Eyre denies ever seeing Estrada until the date of his juvenile court appearance on the aggravated assault charge.

      . Although the complaint also stated that Estrada's injuries were the result of Eyre's "wrongful acts, omissions, negligence and recklessness," and his "negligent and reckless behavior," Estrada's attorney agreed with the trial court that Estrada's "amended complaint clearly sound[ed] ... in an intentional tort."

      . Because we hold that Milbank did not owe Eyre a duty to defend, we do not reach the issue of whether Eyre's claim is barred by collateral estoppel.


text:
    2003 UT App 405
    Shirley FOSTER; and the Myotherapy College of Utah, a Utah corporation, Plaintiffs and Appellants, v. Paul MONTGOMERY, an individual; PMA Management Services, LLC, a Utah limited liability company; Paul Montgomery, as general partner for Celestial Enterprises, Ltd., a Utah limited partnership; Capital Growth Corporation, a Utah corporation; Paul Montgomery & Associates, Inc., a Utah corporation; Garry Gee; Dennis James; and John Does I through X, Defendants and Appellees.
    No. 20020817-CA.
    Court of Appeals of Utah.
    Nov. 28, 2003.

      Ross I. Romero and Vincent C. Rampton, Jones Waldo Holbrook & MceDonough, Salt Lake City, for Appellants.
    Mark Dykes, LeBoeuf Lamb Green & MacRae, Salt Lake City, for Appellees.
    Before Judges DAVIS, GREENWOOD, and THORNE, Jr.
   OPINION

GREENWOOD, Judge:

T1 Plaintiffs Shirley Foster and the Myotherapy College of Utah (collectively, Foster) appeal from two trial court orders enforcing a Settlement Agreement (the Settlement Agreement or the Agreement) between Foster and defendants Paul Montgomery, et al. (collectively, Montgomery). The trial court's first Order granted Montgomery's cross-motion to enforce the Agreement. A second Order to Enforce was entered eighteen months later, at the request of Montgomery, due to Foster's failure to comply with the terms of the Agreement. On appeal, Foster claims that the Agreement is not enforceable because there was no meeting of the minds and there was a failure of conditions precedent. In response, Montgomery argues that this court does not have jurisdiction to consider Foster's claims regarding the first Order because the appeal was not timely filed. Montgomery also claims there was a valid waiver of the conditions precedent at issue, and thus the Agreement was enforceable. We affirm.

BACKGROUND

12 Shirley Foster owned the Myotherapy College of Utah and the Graystone office building. Because the Myotherapy College and the Graystone building were experiencing financial difficulties, Foster and Montgomery attempted to save the businesses though a series of management agreements beginning in late 1997. However, in August 1999, Foster brought suit against Montgomery, alleging that the agreements were fraudulently induced and that Montgomery's actions violated the terms of the agreements. Montgomery counter-claimed.

T3 The parties agreed to mediation, and met on June 29, 2000, to discuss their respective claims. The mediation resulted in a one-page, handwritten settlement document titled "Outline of Agreement." The document was signed by all necessary parties. At the request of Foster's counsel, Montgomery's counsel drafted the formal agreement (the Settlement Agreement or the Agreement), based on the outline signed at the mediation.

T4 The terms of Montgomery's counsel's draft of the Settlement Agreement relevant to this appeal are as follows. Foster was to transfer the Myotherapy College of Utah, a massage school, to Montgomery. Foster was also required to transfer title of the Gray-stone office building, which housed the college, free and clear of a Zions First National Bank lien on the building. Montgomery was required to pay and hold Foster harmless from a Small Business Administration loan secured by Foster's home. The Agreement also enumerated several conditions precedent, the failure of which would render the agreement void.

T5 After the draft of the Settlement Agreement was distributed, the parties corresponded about disagreement over particular terms of the Settlement Agreement. Specifically, Foster disputed terms concerning the division of assets and liabilities, and wording of the covenant not to compete. In December 2000, approximately six months after the mediation, Foster filed a motion to enforce her understanding of the agreement terms. Montgomery filed a cross-motion to enforce the draft Settlement Agreement as drafted by Montgomery's counsel.

T6 The trial court reviewed the pleadings and granted Montgomery's motion, stating in a minute entry that Montgomery's interpretation of the settlement document was "more compelling." In the order, the trial court stated that the parties were to execute Montgomery's draft of the Settlement Agreement within ten days of the order's entry. Further, should any of the parties refuse to execute the Settlement Agreement, Paul Montgomery was granted the power to execute the Agreement on Foster's behalf, under Utah Rule of Civil Procedure 70. The Order to Enforce the Agreement was entered April 24, 2001 (the April 2001 Order).

17 After the April 2001 Order was entered, the parties continued to correspond about the Settlement Agreement. Because Foster refused to sign the Settlement Agreement, Montgomery signed for her, as permitted by the April 2001 Order. However, the Settlement Agreement never closed, because of the parties' continued disputes. Therefore, on August 9, 2002, Montgomery filed a Second Motion to Enforce the Settlement Agreement. In Foster's Motion in Opposition, she argued that a failure of conditions precedent rendered the Agreement void by its own terms. Specifically, Foster argued that Montgomery failed to obtain acereditation for the Myotherapy College, in violation of the Agreement. She also argued that all necessary third party consents to the transfers and transactions of the Agreement were not obtained. This argument was based on the refusal of Zions First National Bank to release a lien on the Graystone building, which the Agreement required. Finally, Foster argued that because Montgomery refused to pay off the Small Business Administration loan secured by her home, she could not offer substitute collateral or pay off the Zions Bank lien on Graystone, and therefore Zions would not consent to remove the lien on Graystone.

18 After filing her Motion in Opposition to the Second Motion to Enforce, Foster requested an evidentiary hearing. This request was denied on grounds that it was untimely. At the same time the hearing was denied, the trial court entered an Order to Enforce the Agreement, on October 3, 2002 (the October 2002 Order). The October 2002 Order varies only slightly from the April 2001 Order. Indeed, Foster's reply brief acknowledges that the terms of the second order "nearly mirror those of the first order." In the April 2001 Order, the court noted the parties' different interpretations of the mediation outline and granted Montgomery's cross-motion. In the October 2002 Order, the court merely granted Montgomery's motion.

T9 Foster now appeals from the October 2002 Order, claiming that the Agreement should not be enforced because there was no meeting of the minds and because a failure of conditions precedent renders the Agreement void.

ISSUES AND STANDARDS OF REVIEW

T10 Montgomery argues that this court does not have jurisdiction to consider Foster's appeal regarding a meeting of the minds because the time for appeal began to run from the April 2001 Order, the trial court's first Order to Enforce. "If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal." Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 7, 13 P.3d 616.

T11 Because we conclude that the time for appeal began to run from the April 2001 Order, we retain jurisdiction only to consider whether there was a failure of conditions precedent, because that issue was decided by the October 2002 Order. " '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." " Sackler v. Savin, 897 P.2d 1217, 1220 (Utah 1995) (quoting Zions First Nat'l Bank v. National Am. Title Ins. Co., 749 P.2d 651, 653 (Utah 1988)).

T12 Both parties request attorney fees pursuant to the contract. " "In Utah, attorney fees are awarded only if authorized by statute or contract. If provided for by contract, attorney fees are awarded in accordance with the terms of that contract' " Chase v. Scott, 2001 UT App 404,¶ 12, 38 P.3d 1001 (quoting Equitable Life & Cas. Ins. Co. v. Ross, 849 P.2d 1187, 1194 (Utah Ct.App.1993)).

ANALYSIS

I. Jurisdiction

T13 Jurisdiction is a threshold issue and we therefore address it first. Montgomery argues that Foster's appeal is untimely because she failed to file the appeal within thirty days of the entry of the April 2001 Order. Foster maintains that her timely appeal from the October 2002 Order vests this court with jurisdiction to consider both the April 2001 Order and the October 2002 Order. She further asserts that the October 2002 Order is the "final" order for purposes of appeal.

"14 "An appeal may be taken from a district ... court to the appellate court with jurisdiction over the appeal from all final orders and judgments...." Utah R.App. P. 3(a) (emphasis added). A party must file the notice of appeal "within 30 days after the date of entry of the judgment or order appealed from." Utah R.App. P. 4(a). "If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal." Serrato v. Utah Transit Auth., 2000 UT App 299," 7, 18 P.3d 616. Once this court concludes that it lacks jurisdiction, it "retains only the jurisdiction to dismiss the action." Varian-Eimac, Inc. v. Laomoreaux, 767 P.2d 569, 570 (Utah Ct.App.1989) (citation omitted).

[15 We conclude that the April 2001 Order was a final order and that the time for appeal expired thirty days after the order was entered. "The Utah Supreme Court has recognized that an order is final where 'the effect of the order ... was to determine substantial rights ... and to terminate finally the litigation'. ..." Harris v. IES Assocs., Inc., 2003 UT App 112,¶ 56, 69 P.3d 297 (alterations in original) (citations omitted).

T16 In this case, the April 2001 Order enforcing the Settlement Agreement was a final order because it determined the parties' substantial rights and terminated the litigation. The April 2001 Order terminated the litigation because no claims were left pending. See Utah State Bldg. Bd. v. Walsh Plumbing Co., 16 Utah 2d 249, 399 P.2d 141, 144 (1965) ("In order for a judgment to be final and start the time for appeal to run, there must be a judgment which is definite and unequivocal in finally disposing of the matter."). The Settlement Agreement the trial court ordered enforced states that the parties "will execute a stipulated dismissal and a proposed order that dismisses the Litigation with prejudice against all parties, including Doe parties." Additionally, the April 2001 Order granted Montgomery the power to execute the Agreement on Foster's behalf, under Utah Rule of Civil Procedure 70. Because all claims were decided, the April 2001 Order was a final judgment, and the time for appeal began to run.

1 17 Foster maintains, however, that Montgomery invoked the lower court's jurisdiction anew when he filed the second Motion to Enforce the Settlement Agreement and thus vitiated any finality of the April 2001 Order. However, trial courts may extend the time for appeal only in limited cireumstances. See Utah R.App. P. 4(b) (explaining time for appeal runs after order entered ruling on post-judgment motions); id. 4(e) (explaining trial court may extend the time to appeal only "upon a showing of excusable neglect or good cause"). Further, postjudgment motions that extend the appeal time must, themselves, be timely filed. See Utah R. Civ. P. 59(c); Utah R.App. P. 4(b); Burgers v. Maiben, 652 P.2d 1320, 1321 (Utah 1982).

"18 The trial court in this case essentially reentered the same order it had previously entered to effectuate compliance with the first Order. "Where a judgment is reentered, and the subsequent judgment does not alter the substantive rights affected by the first judgment, the time for appeal runs from the first judgment." Farkas v. Rumore, 101 F.3d 20, 22 (2d Cir.1996) (per curiam) (citing FTC v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12, 73 S.Ct. 245, 248-49, 97 L.Ed. 245 (1952)).

119 Although this doctrine has generally been applied in cases where a judgment has been reentered to correct a technical error, see id., it nevertheless can be applied in this case. The substantive rights of the parties were not altered by the October 2002 Order. Indeed, the April 2001 Order disposed of all the parties' claims and gave Montgomery the power to execute the Settlement Agreement on Foster's behalf under Utah Rule of Civil Procedure 70, if she failed to do so. Accordingly, the April 2001 Order was a final order. Therefore, Foster's appeal is not timely as to the April 2001 Order and this court has jurisdiction to consider only issues decided by the October 2002 Order.

IL Failure of Conditions Precedent

T20 Because we conclude that the time for appeal began to run from the April 2001 Order, we retain jurisdiction to consider only whether there was a failure of conditions precedent, as that issue was decided by the October 2002 Order. Foster maintains that two stated conditions precedent have failed: accreditation of the Myotherapy College and consent from all necessary third parties. Based on these failures, she argues that the Settlement Agreement is void by its own terms. We review questions of contract interpretation as questions of law. See Sackler v. Savin, 897 P.2d 1217, 1220 (Utah 1995) (" '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. Co., 749 P.2d 651, 658 (Utah 1988))).

21 The Agreement enumerates four conditions precedent, and states that if the conditions precedent are not "satisfied or waived in writing within ninety (90) days from the Agreement Date, [the] Agreement shall be null and void and shall have no further effect." Foster claims that the agreement is void, based on a failure of two of the conditions precedent. The first condition precedent that Foster argues has failed is the Agreement's requirement of "[a] determination, satisfactory to Montgomery, that the transfer to Montgomery of Myotherapy as set forth in this Agreement will not result in the loss of Myotherapy's accreditation...." (Emphasis added.) However, there was no failure of this condition precedent, as the transfer of accreditation was required to be to Montgomery's satisfaction. By seeking specific performance of the contract, as discussed below, Montgomery manifested his satisfaction.

1 22 The second condition precedent which Foster claims has failed requires that "(alll necessary third party consents to the transfers and transactions contemplated by this Agreement" are obtained. Under the terms of the Agreement, Foster was to "execute and deliver documents transferring to Montgomery or such other entity as may be directed by Montgomery title to the Graystone Office Building free and clear of the lien of Zions First Nation Bank." Foster maintains that because Zions First National Bank refused to consent to release the lien on the Graystone building, this condition precedent failed. In her brief, Foster argues that because Montgomery refused to remove a Small Business Administration lien from her residence, she could not offer substitute collateral or afford to pay off the underlying lien on Graystone, and therefore could not obtain Zions's consent to remove the lien on Graystone. Even if this strained interpretation of the condition were correct, Montgomery waived satisfaction of the condition by requesting specific performance of the contract.

123 Both of the conditions precedent at issue were for Montgomery's benefit. "Conditions precedent may be waived by the party in whose favor they are made." 17A Am.Jur.2d Contracts § 658 (2008) (footnote omitted). Accreditation of the Myotherapy College benefits Montgomery, and must be to his satisfaction, because he retains the College under the Agreement. The "consent" of Zions First National Bank to remove the lien from the Graystone building, per Foster's argument, was also for Montgomery's benefit. Montgomery waived both of these conditions precedent in writing when he filed the Second Motion to Enforce the Settlement Agreement.

T 24 Montgomery filed the Second Motion to Enforce because Foster failed to comply with the terms of the Agreement, leaving Montgomery with two options: he could either seek rescission of the Agreement or he could request specific performance of the Agreement and reserve his right to seek damages suffered as a result of Foster's breach. The Utah Supreme Court has stated that settlement agreements constitute "an executory accord which allows the party alleging breach thereof the option of seeking enforcement of the settlement agreement or of rescinding that settlement agreement and pursuing the underlying claim." Tebbs, Smith & Assocs. v. Brooks, 735 P.2d 1305, 1307 (Utah 1986); see also Coalville City v. Lundgren, 930 P.2d 1206, 1210 (Utah Ct.App.1997) (stating where one party fails to comply with terms of contract, the other party to the contract " 'has a right of rescission and an action for restitution [if there has been a material breach] as an alternative to an action for damages " (quoting Polyglycoat Corp. v. Holcomb, 591 P.2d 449, 451 (Utah 1979))). Montgomery chose to request specific performance through the Second Motion to Enforce the Settlement Agreement. In that motion, Montgomery stated that if Foster continued in her refusal to comply with the court's order, he would nevertheless proceed with the transfer of the Graystone building, with the Zions lien attached. Montgomery's motion also reserved his right to bring an action for damages resulting from Foster's breach.

1 25 Accordingly, we conclude that because Montgomery waived the conditions precedent which were for his benefit, Foster's argument that the Agreement is void fails.

III. Attorney Fees

1] 26 Both parties request attorney fees and costs on appeal. Under the Settlement Agreement, if litigation is "necessary to enforce the terms of this Agreement, the prevailing Party in any such litigation ... shall be entitled to recover from the non-prevailing Party the prevailing Party's attorney[ ] fees and costs." Additionally, Montgomery requests attorney fees for bringing the Second Motion to Enforce, which he also requested in that motion. In the October 2002 Order, the trial court entered the order "without prejudice to any later motion by the Montgomery Defendants for fees and costs incurred in connection with filing their see-ond motion to enforce the settlement agreement." However, one week after the October 2002 Order was entered, and before Montgomery compiled his request for attorney fees and costs, Foster filed a Notice of Appeal.

127 Montgomery is entitled to attorney fees and costs under the contract. " 'In Utah, attorney fees are awarded only if authorized by statute or contract. If provided for by contract, attorney fees are awarded in accordance with the terms of that contract. " Chase v. Seott, 2001 UT App 404,¶ 12, 38 P.3d 1001 (quoting Equitable Life & Cas. Ins. Co. v. Ross, $49 P.2d 1187, 1194 (Utah Ct.App.1993)). Because Montgomery prevailed below, and now prevails on appeal, he is entitled to attorney fees and costs pursuant to the Agreement. Therefore, we remand to the trial court for a determination of attorney fees and costs reasonably incurred by Montgomery in bringing the Second Motion to Enforce and on appeal.

CONCLUSION

T 28 The time for appeal began to run from the first Order to Enforce the Settlement Agreement, the April 2001 Order, which was a final, appealable order. Therefore, because Foster's appeal was not timely filed from that Order, this court does not have jurisdiction to consider issues decided therein. However, the question of whether there was a failure of conditions precedent was decided by the October 2002 Order, which was timely appealed. We conclude that Montgomery waived the conditions precedent, in writing, when he requested specific performance through his Second Motion to Enforce. Therefore, the contract is not void.

T{29 Finally, Montgomery is entitled to attorney fees and costs pursuant to the Agreement. We remand to the trial court for a determination of attorney fees and costs reasonably incurred in bringing the Second Motion to Enforce and this appeal.

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

      . Utah Rule of Civil Procedure 70 provides in relevant part:
      If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party.

      . Whereas the April 2001 Order granted the parties ten days in which to execute the Settlement Agreement, the October 2002 Order only granted the parties five days.

      . The trial court implicitly decided that the Agreement was not void because of a failure of conditions precedent. Foster's Motion in Opposition to Montgomery's Second Motion to Enforce alleged the failure of the conditions, and, two weeks after her motion was filed, she requested an evidentiary hearing. The trial court denied her request for a hearing, stating in a minute entry ruling that the request was untimely under rule 4-501(3)(F) of the Rules of Judicial Administration. See id. ("If no written request for a hearing is made at the time the parties file their principal memoranda, a hearing on the motion shall be deemed waived."). Although the request was actually timely, this court has noted, "Settlement agreements may be summarily enforced without an evidentiary hearing." Goodmansen v. Liberty Vending Sys., 866 P.2d 581, 584 n. 2 (Utah Ct.App.1993) (citations omitted); see also John Deere Co. v. A & H Equip., Inc., 876 P.2d 880, 883 (Utah Ct.App.1994) ("[A] trial court's summary enforcement of a settlement agreement will not be reversed on appeal unless it is shown that there was an abuse of discretion." (quotations and citations omitted)).
      At the same time it denied Foster's request for a hearing, the trial court entered the Order granting Montgomery's Second Motion to Enforce.

      . However, approximately three months after this ninety day period ended, both parties filed motions to enforce their understandings of their settlement agreement. By filing these motions, the parties acknowledged that the ninety day deadline was of no further effect.

      . Contrary to Foster's argument, the Settlement Agreement did not require Montgomery to remove the Small Business Administration lien on Foster's residence. Instead, the parties had a "hold harmless" agreement, under which Montgomery agreed to "pay or satisfy ... and hold Foster and Spinal Touch harmless from the debts of Foster owed ... [on] the United States Small Business Administration" loan.