author: OPALA, V.C.J.

text:
    2003 OK 67
    U.S. MORTGAGE, Plaintiff, v. Donald D. LAUBACH, Denny L. Hurst, Defendants, William A. Strong, II, Carolyn E. Strong, and Defendants-Appellants, Oak Tree Home Owners Association, Inc., Defendant-Appellee. Marquis Marie Hurst and Eagleton, Nicholson, Pordos & Pardue, P.C., Third-Party Plaintiffs-Appellees, v. Donald D. Laubach, Third-Party Defendant, William A. Strong, II, Carolyn E. Strong, Third-Party Defendants-Appellants, and Oak Tree Home Owners Association, Inc., Third-Party Defendant-Appellee.
    No. 98,902.
    Supreme Court of Oklahoma.
    July 1, 2003.

      Kelley L. Cornelius, Oklahoma City, OK, for Appellants William A. Strong II and Carolyn E. Strong.
    W. David Pardue, Jeffrey M. Love, Oklahoma City, OK, for Appellees Marquis Marie Hurst and Eagleton, Nicholson, Pordos & Pardue, P.C.
    Robert C. Smith, Jr., Oklahoma City, OK, for Appellee Oak Tree Home Owners Association, Inc.

      . Identified herein are only those counsel of the parties whose names appear on the appellate briefs.

   OPALA, V.C.J.

T1 The issue presented by this appeal is whether Strong creditors' judgment lien retained its efficacy at the time the trial court was called upon to determine the order of priority among the competing liens. We answer in the negative.

I

THE ANATOMY OF LITIGATION

12 U.S. Mortgage, the holder of a mortgage on Donald Laubach's (Laubach) real property located in Oklahoma County, brought a foreclosure suit after Laubach defaulted on the mortgage payments. U.S. Mortgage named as defendants Laubach and three lienholders-Denny Hurst, William A. Strong II and Carolyn E. Strong (Strong creditors) and the Oak Tree Home Owners Association, Inc. (Association).

¶ 3 Strong creditors obtained in Missouri a federal-court judgment against Laubach and registered it on 21 August 1995 in the U.S. District Court of the Western District of Oklahoma. They then perfected the federal-court judgment as a lien by filing an affidavit of judgment in the Oklahoma County Clerk's office on 8 September 1998. Danny Hurst obtained a judgment against Laubach in Blaine County on 18 January 1995. His lien was created by filing a Statement of Judgment in the Oklahoma County Clerk's office on 18 August 1999. He renewed his judgment against Laubach by filing a notice of renewal in the Blaine County Court Clerk's office on 14 December 1999 and recording a certified copy of the notice of renewal in the Oklahoma County Clerk's office the following day. Association claims an assessment lien on the same property.

[ 4 At mid-litigation Denny Hurst assigned all his interest in the judgment (and judgment lien) to Marquis Marie Hurst (75%) and to Eagleton, Nicholson, Pordos, & Pardue (25%) (collectively called Hurst creditors or third-party plaintiffs). Hurst creditors were granted leave to intervene as third-party plaintiffs. They named Laubach, Strong creditors and Association as third-party defendants. - Strong creditors cross-claimed against Laubach, Hurst creditors and Association. - Association counterclaimed against Hurst creditors and cross-claimed against Laubach and Strong creditors.

15 U.S. Mortgage moved for summary judgment, arguing that it held a valid first lien on the property in suit. All of the parties exeept Laubach conceded U.S. Mortgage's priority status. Laubach objected to summary adjudication on the ground that there were material issues of fact as to the amount owed, the escrow paid and the amount of attorney's fees. Strong and Hurst creditors countered with separate summary judgment motions. Strong ereditors claimed that, based on priority in time, their judgment lien is superior to that of Hurst eredi-tors and of the Association According to Hurst creditors (a) Strong creditors' lien had expired and was hence ineffective and (b) they had a second lien which is prior to that of Association. Association adopted Hurst creditors' position that Strong ereditorsg' lien had expired. It also conceded that its assessment lien was inferior to that of U.S. Mortgage and Hurst creditors.

¶ 6 The trial court struck Strong creditors' answer to Hurst creditors' motion for summary judgment, declaring that it was filed one day late in violation of local court Rule 37. The trial court (a) gave summary judgment to Hurst creditors and denied Strong creditors' motion for like relief, (b) declared that Strong creditors obtained a Missouri federal-court judgment and registered it for enforcement as a domestic judgment on 21 August 1995 in the U.S. District Court for the Western District of Oklahoma, (c) declared that Strong creditors failed to file in the county clerk's office either a notice of renewal of judgment, a garnishment summons issued against the judgment debtor (Laubach) or a notice of income assignment on or before 21 August 2000, concluding that Strong creditors' judgment lien expired by operation of 12 0.8.Supp.1997 § 759(C) and was hence no longer efficacious, and (d) determined the order of priority among the liens upon the real property in suit-U.S. Mortgage (first lien), Hurst creditors (second lien), Association (third lien)-as well as the amount of Hurst creditors' and Association's lien, and (e) directed that Hurst creditors' lien be satisfied from the proceeds, if any remain, of the sale of the property in accordance with the order of priorities. The court denied Strong creditors' quest for new trial.

T7 It is Strong creditors' appeal that stands retained for this court's disposition and is now under review.

II

STANDARD OF REVIEW ON SUMMARY PROCESS

¶ 8 Summary process--a special pretrial procedural track pursued with the aid of acceptable probative substitutes -is a search for undisputed material facts which, sans forensic combat, may be utilized in the judicial decision-making process. Summary process is applied where neither the material facts nor any inferences that may be drawn from uncontested facts are in dispute, and the law favors the movant's claim or liability-defeating defense. Only those evidentiary materials which eliminate from trial some or all fact issues on the merits of the claim or defense afford legitimate support for nisi prius resort to summary adjudication.

¶ 9 Summary relief issues stand before us for de novo examination. All facts and inferences must be viewed in the light most favorable to the non-movant. Just as nist prius courts are called upon to do, so also appellate tribunals bear an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant. - Only if the court should conclude that there is no material fact in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary judgment in its favor.

III

THE BASIS FOR STRONG CREDITORS' CLAIM TO AN EFFECTIVE JUDGMENT LIEN

¶ 10 Strong creditors claim an enforceable judgment lien on the property, superior to the later-recorded liens of Hurst creditors and Association. According to Strong creditors their lien has not expired because the statutory five-year dormancy period runs from the date the judgment lien was created (3 September 1998), not the date the

judgment was registered in Oklahoma (21 August 1995). Strong creditors argue that their judgment was kept from lapsing into dormancy by the issuance of several garnishment summons by the federal court clerk within the initial five-year life of their judgment. On 13 September 2002 they filed one of the garnishment summons in the Oklahoma County Clerk's office. Strong eredi-tors claim that each garnishment summons renewed and extended the life of the judgment by five years from the date of its issuance. They argue that judgment liens are created by filing a statement of judgment with the county clerk (§ 706(B)) and are continued in force in accordance with § 759(C) by filing a general execution, renewal of judgment, or garnishment summons within five years of the judgment lien's perfection and then within five years after each filing of a general execution, renewal of judgment, or garnishment summons in the county clerk's office. Strong creditors base their view on a historical analysis of these statutes. Because their judgment lien was filed 8 September 1998, they claim it was still effective when the trial court was called upon to determine the order of priority among competing liens.

{11 Hurst creditors counter that Strong creditors' 1998 lien expired on 21 August 2000, five years after their judgment was registered in the Western District of Oklahoma. - They argue that Strong creditors have not succeeded in reviving their lien by recording an undated uncertified garnishment summons in the county clerk's office. This is so, they assert, because onee the lien expired, Strong creditors were required to file a new statement of judgment in the county clerk's office to extend the lien's efficacy in accordance with 12 0.98.2001 § 706. According to Hurst creditors all judgments have an initial life of five years and the corresponding judgment lien that is perfected cannot exceed or outlive the life of the judgment which it secures. Even if we assume that Strong creditors judgment had retained its efficacy by the issuance of successive garnishments, Hurst creditors argue that Strong creditors did not succeed in keeping their judgment lien alive because they failed to record in the county clerk's office (as required by § 759(C)) a certified copy of one of the three types of processes/execution. In other words, the life of a judgment lien is only as long as that of the Judgment it secures. According to Hurst creditors, Strong creditors' construction of §§ 706, 735 and 759(C) violates these fundamental premises. We agree.

IV

THE EFFECT OF THE DORMANCY STATUTE UPON THE CONTINUED EFFICACY OF A JUDGMENT LIEN

12 Strong creditors assert that this case presents a first-impression question whether the § 759(C) five-year dormaney period for a judgment lien begins to run upon the lien's perfection or upon the judgment's entry (or registration). The tendered issue requires an analysis of the state dormancy statute's impact upon a registered federal-court judgment and upon the judgment lien which secures that obligation.

A.

The Registration of An Out-Of-District Federal Judgment Is a Prerequisite For Securing a Judgment Lien

¶ 13 An out-of-district federal-court judgment may be registered either in the state or in federal district court as a prerequisite for its enforcement in Oklahoma. Tis vitality begins with the registration process, which confers on the obligee the status, rights and remedies afforded by state law to any judgment creditor. We accord a federal-court judgment the very same effect as that which we must give to a sister-state judgment under the full-faith-and-credit command of the U.S. Constitution.

B.

Dormancy's Impact On A Registered Federal Judgment

¶ 14 A non-Oklahoma (namely, sister-state, foreign-nation - and federal-court) judgment that is enforceable at the time of its registration in Oklahoma is to be considered a new judgment for purposes of the five-year dormancy statute. 12 0.8.1991 § 735. The dormancy period begins to run from the date of registration. A judgment will become dormant and ineffective unless within five years from its registration (a) execution is issued upon it by the court clerk and filed in the county clerk's office as provided by § 759, (b) a notice of renewal is filed in the court clerk's office or (c) garnishment is issued by the court clerk.

¶ 15 It is uniformly the registrant (the judgment creditor) who bears the burden of proof and persuasion to show the continued efficacy of its non-Oklahoma judgment that has been registered in the state for enforcement as a domestic judgment.

C.

The Mechanics of Securing a Judgment Lien

¶ 16 A domestic (or registered) judgment is perfected as a judgment lien (operable against the real property of the judgment debtor) by filing a "statement of judgment" in the county clerk's office. 12 00.98.2001 § 706. The judgment constitutes the obligation, which is secured by the lien that is impressed on the debtor's real property. The lien is created by operation of statute. It attaches to the property when the statutory requirements have been met.

117 A judgment lien retains its efficacy when prior to the expiration of the initial or "subsequent statutory period," a certified copy of one of the following documents is filed and indexed in the county clerk's office: (a) a general execution issued upon the judgment, (b) a filed notice of renewal of judgment or (c) an issued garnishment summons. 12 0.8.Supp.1997 § 759(C).

D.

Dormancy's Impact on Judgment Liens

¶ 18 When an out-of-state judgment is perfected as a lien, its enforceability continues from the point in time that coincides with its registration. The life of a domestic judgment and that judgment's lien run parallel and concurrently from the point of entry. A judgment lien's continued life is measured by the period that applies to enforceability of judgments. When the obligation that lien secures is extinguished, the lien itself ceases to operate. The dormancy act affects solely executions on Judgments. Judgment liens are subject to dormancy only because of its negative impact upon the judgment's enforceability. A judgment lien retains its efficacy by the filing of a certified copy of an execution or a garnishment summons in all counties where the statement of judgment has been filed.

¶ 19 In short, there is no such thing as dormancy of a judgment lien. The five-year dormaney period for judgments begins with a judgment's entry (or registration) and expires five years from that date. When the judgment loses its efficacy, the lien itself ceases to operate for want of an obligation which it secures. The lien expires because it cannot survive the point of time beyond which a judgment ceases to be enforceable.

y

THE ORDER OF PRIORITIES FOR THE LIENS IN CONTROVERSY

¶ 20 The parties to this appeal concede the mortgage lender's lien commands the highest priority status. The efficacy of that lien is not in issue here. Tendered for this court's resolution is the priority among the remaining judgment liens. The key lien contest is waged between the Strong and Hurst eredi-tors. Association adopts the position advanced by Hurst creditors.

A.

Strong Creditors Failed to Meet Their Burden of Proof

121 Strong creditors' federal-court judgment (registered on 21 August 1995) and the judgment lien which secures that obligation (perfected on 3 September 1998) ran concurrently from their separate points of entry. The period for measuring the enforceability of their judgment also applies to assess the judgment en's continued life.

¶ 22 It was Strong creditors' burden to prove (a) the continued efficacy of their non-Oklahoma judgment by showing that it had not become dormant for want of issuance of process or garnishment since its registration in August 1995 and (b) that the judgment lien which secures that obligation had retained its efficacy by creditors' compliance with the statutory filing requirements. The other lien creditors bore no more than the burden of proving the efficacy status of their own judgments (and judgment liens).

¶ 23 As a general rule, acceptable probative substitutes may be used as eviden-tiary materials in the summary process of adjudication to eliminate from the adversary contest any disputed fact issues. The evi-dentiary materials required to show the present efficacy of the judgment lien are not controlled by Rule 13's evidentiary substitutes in summary process. To show the judgment lien's present effectiveness Strong creditors must tender documentation that meets the standards of § 759(C.) That doe-umentation must (a) bear the federal court clerk's certificate which identifies the document as a true and correct copy of the original on file in the clerk's office as well as (b) be filed in the Oklahoma County Clerk's office before the dormaney period has run on the registered federal-court judgment.

¶ 24 Attached to Strong creditors' motion for summary judgment is a garnishment summons represented as having been issued in the federal-court case. The summons, which bears a notation that it was recorded in the Oklahoma County Clerk's office on 18 September 2002, neither reflects the date of its issuance mor bears a certificate that it is a true and correct copy of the document in the custody of the federal court clerk. Without the court clerk's certificate the tendered document fails to meet the § 759(C) standard for keeping the judgment lien alive. Moreover, in the form submitted, the garnishment summons does not meet the general evidence law's requirement for certification when there is reliance on a document from another court. In sum, absent the required certification we cannot recognize the garnishment summons attached to Strong creditors' motion for summary judgment as a legitimate or acceptable Rule 13 probative substitute.

125 Because Strong creditors' failed to show that they had filed in the county clerk's office a certified copy of the garnishment summons timely issued by the federal court clerk, the trial court correctly concluded that their judgment lien was no longer efficacious.

B.

The Hurst Creditors' and Association's Liens

[ 26 The efficacy status of Hurst creditors' and Association's liens is not in dispute. The trial court concluded that Hurst creditors' lien was second in priority and the Association's had a third lien on the property.

VI

STRONG'S QUEST FOR NEW TRIAL

127 Strong creditors' quest for new trial urged the court either (a) to modify its summary judgment to include certain conclusions of law and other declarations establishing undisputed facts from which but a single inference may be drawn in favor of the moving party or (b) to grant a new trial for the purpose of admitting the evidentiary material that was stricken at nisi prius. They urge on appeal that the trial court erred in denying their motion and in failing to make the requested conclusions and declarations.

A.

The Trial Court's Failure to Make Certain Conclusions of Law and Declarations

128 Strong creditors claim that the trial court erred in failing to make a conclusion of law or declaration of undisputed fact (from which but a single inference may be drawn in favor of the moving party) that their registered federal-court judgment from Missouri is valid as a matter of law. They reason that if the court determined that the validity of their lien presents a question of law, it must have concluded that the evidentiary materials attached to their motion for summary judgment were acceptable. According to Strong creditors, all factual allegations must be assumed admitted in accordance with Rule 18(b) and (e), Rules for District Courts. They argue that the trial court should hence amend its summary judgment to include the requested conclusion (or declaration) that the judgment is valid as a matter of law for the purpose of making a final disposition of all the parties' motions for summary judgment.

¶ 29 When entering summary judgment, the trial court is not required to recite sua sponte in the journal entry any of the material facts that are undisputed. There is no showing in the record that Strong ereditors made a timely pre-judgment request for the conclusions of law and declarations of undisputed fact which they sought in their new trial motion. They cannot hence complain of these omissions.

¶ 30 Absent a record to the contrary, we are duty-bound to indulge in a presumption of correctness that attaches by force of law to the trial court's rulings. They are presumptively deemed to include a finding of every fact necessary to support them. Strong creditors have not met their burden to provide for our review a record that would overcome the nisi prius presumption of correctness.

¶ 31 Moreover, what Strong eredi-tors desire is a nisi prius conclusion of law that their Missouri judgment is an enforceable obligation. Even if they had timely requested the sought conclusion, they could not be deemed harmed or aggrieved by the trial court's failure to make it. This is so because in a summary judgment review an appellate court has the same power as the trial court to resolve any disputed issues of law.

B.

Error in Not Allowing Strong Creditors Additional Time to Respond to Hurst's Motion For Summary Judgment

¶ 32 Strong creditors argue that they should have been given 15 days to respond to Hurst creditors' motion for summary judgment pursuant to Rule 4(e), Rules for District Courts. - They claim that Rule 4(c) allows counsel to submit a verified statement of what the proof will show until a hearing or stipulation can be provided. Strong creditors urge that the evidentiary material attached to their motion for summary judgment contains a sufficient recital of fact, including their counsel's verified statement of what the proof would show. Because the tendered evidentiary material is of record in Oklahoma County, Strong creditors argue that the trial court should take judicial notice of it.

¶ 33 Strong creditors' reliance on Rule 4 is misplaced. Summary process is governed by Rule 13. Review in this case must be strictly confined to the content of the nisi prius summary-process record. Judicial notice will not be taken of any doeument the trial judge did not have before him when the case was submitted for summary relief.

C.

The Exclusion of Strong Creditors' Evidentiary Material

134 Strong creditors argue that the trial court erred in striking their answer (to Hurst creditors' motion for summary judgment) as well as in excluding from the record the attached evidentiary materials. - In their new trial motion they not only attempt to incorporate by reference the exeluded materials, but also attach to their motion one of the documents, their own affidavit. Strong creditors claimed that the exeluded materials were necessary to present a complete record on appeal.

¶ 35 Although the trial judge rejected Strong creditors' renewed quest to place the materials in the record, the summary judgment indicates that he did take cognizance of one item-the Missouri federal-court judgment. That judicial record had been certified by the court clerk of the Missouri federal court (as well as by the court clerk of the Oklahoma federal court as having been registered in that court). We likewise take cognizance of its existence.

¶ 36 Even if the trial court had ree-ognized all the excluded documents and rescinded his exelusionary ruling, the order declaring priority could not be altered on appeal. There is simply nothing in the excluded documents that would inject efficacy into Strong creditors' claim to am efficacious lien. '

137 Strong creditors' affidavit deals with the present efficacy of the judgment lien. Their affidavit (or that by their counsel) cannot be substituted for the best evidence-a certificate of the federal court clerk placed upon the required statutory document.

D.

The Strong Creditors' post-judgment Attempt to Revive Their Judgment Lien

¶ 38 Strong creditors attached to their new trial motion two new documents that had been executed and filed in the Oklahoma County Clerk's office on 25 November 2002, three days after the hearing on summary judgment-a certified copy of the notice of renewal of judgment and an affidavit of judgment. They urged the court to amend its summary judgment to include a declaration of undisputed fact that their judgment lien was reinstated on November 25. According to Strong creditors, a new trial or modification is authorized by 12 0.8. 2001 §§ 651(7), 1031(7). The trial court ruled that their belated attempt to file the new documents does not constitute newly discovered evidence warranting new trial or modification of summary judgment.

¶ 39 We agree. Strong creditors' post-judgment attempt to revive their judgment lien comes too late for consideration in this litigation. A determination of their November 25 judgment lien's efficacy and its priority status vis-a-vis other lien claimants must await another day.

VII

SUMMARY

¶ 40 An out-of-district federal-court judgment registered in a federal court sitting in Oklahoma is accorded the same effect as that given to sister-state and foreign-nation judgments. At the time of its local registration, a federal-court judgment is deemed enforceable and subject to the five-year statutory dormancy period. When a judgment is perfected as a lien, its enforceability continues from the point in time that extends from its registration. A judgment lien retains its efficacy when prior to the expiration of the initial five-year period (or expiration of the subsequent statutory period) a certified copy of a general execution, garnishment summons or notice of renewal is filed in the county clerk's office. Once a judgment becomes dormant, its judgment lien ceases to operate by extinction of the obligation which it secures.

{41 Strong claimants failed to meet their burden of proving the continued efficacy of their judgment lien by documentation which bears a certificate by the federal court clerk with custody of the documents that they constitute a true and correct copy of the original on file. The judgment lien's efficacy is not governed by the standards for evidentiary substitutes acceptable in summary process, but rather by the documentation required by the provisions of 12 O.S$.Supp.1997 § 759. An affidavit of the parties (or their counsel) cannot be substituted for the critical statutory documents.

42 We hold that, on this record, the nisi prius order of priority among competing liens is correct.

148 THE TRIAL COURTS SUMMARY DISPOSITION IS AFFIRMED.

1] 44 WATT, C.J., and LAVENDER, HARGRAVE, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur.

{45 HODGES and KAUGER, JJ., concur in result.

      . For an explanation of registration requirements for out-of-district federal-court judgments, see Part IV(A) infra.

      . In support of their quest for summary relief, Strong creditors attach (1) their lawyer's affidavit; (2) an affidavit of judgment that was recorded in the Oklahoma County Clerk's office on 3 September 1998; (3) a garnishment summons recorded in the county clerk's office on 13 September 2002, which is neither certified by the federal court clerk nor indicates on its face the date of issuance in the federal-court case; (4) a page (which appears to have been generated by a computerized search of the county clerk records) indicating that the Association had filed an assessment lien on 10 May 2002; and (5) copies of two state statutes.

      . - Local Court Rule 37(C) (Official Court Rules Of the Seventh Judicial Administrative District, comprised of Oklahoma and Canadian Counties) provides:
      C. All briefs shall be filed and a copy delivered to the assigned trial judge at least five (5) days prior to any hearings.
      Strong creditors' answer brief was stricken by separate order entered on the day of the summary-judgment hearing. According to Strong creditors' motion for new trial, the trial judge presented that order to counsel in the case before hearing summary-judgment motions.

      . For the pertinent terms of 12 O.S.Supp.1997 § 759(C), see infra note 17.

      . " 'Acceptable probative substitutes' are those which may be used as 'evidentiary materials' in the summary process of adjudication." Jackson v. Okla. Memorial Hosp., 1995 OK 112, ¶ 15, n. 35, 909 P.2d 765, 773, n. 35. See also Seitsinger v. Dockum Pontiac, Inc., 1995 OK 29, ¶¶ 16-17, 894 P.2d 1077, 1080-81; Davis v. Leitner, 1989 OK 146, ¶ 15, 782 P.2d 924, 926-27.

      . The focus in summary process is not on the facts which might be proven at trial, but rather on whether the tendered proof in the record reveals only undisputed material facts supporting but a single inference that favors the movant's quest for relief. Polymer Fabricating, Inc. v. Employers Workers' Compensation Ass'n, 1998 OK 113, ¶ 7, 980 P.2d 109, 112; Hulsey v. Mid America Preferred Ins. Co., 1989 OK 107, ¶ 8, n. 15, 777 P.2d 932, 936, n. 15.

      . To that end, the court may consider, in addition to the pleadings, items such as depositions, affidavits, admissions, answers to interrogatories, as well as other evidentiary materials which are offered by the parties in acceptable form. Polymer, supra note 8 at T 8, at 113.

      . Russell v. Bd. of County Comm'rs, 1997 OK 80, ¶ 7, 952 P.2d 492, 497. See also Gray v. Holman, 1995 OK 118, ¶ 11, 909 P.2d 776, 781.

      . - An order that grants summary relief, in whole or in part, disposes solely of law questions. It is reviewable by a de novo standard. Brown v. Nicholson, 1997 OK 32, ¶ 5, 935 P.2d 319, 321. See also Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 4, 859 P.2d 1081,1083 (''Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings.").

      . Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.

      . Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court).

      . It is not the purpose of summary process to substitute a trial by affidavit for one by jury, but rather it is to afford a method of summarily terminating a case (or eliminating from trial some of its issues) when only questions of law remain. State ex rel. Fent v. State ex rel. Okla. Water Resources Bd., 2003 OK 29, ¶ 14, n. 31, 66 P.3d 432, 440, n. 31; Bowers v. Wimberly, 1997 OK 24, ¶ 18, 933 P.2d 312, 316; Stuckey v. Young Exploration Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730.

      . The pertinent terms of 12 0.8.1991 § 735 (the so-called dormancy statute), the statute in force when the judgment became enforceable in Oklahoma, are:
      If execution is not issued and filed as provided in Section 759 of this title or a garnishment summons is not issued by the court clerk within five (5) years after the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five (5) years has intervened between the date that the last execution on such judgment was filed or the date that the last garnishment summons was issued as provided by Section 759 of this title, ... such judgment shall become unenforceable and of no effect, and shall cease to operate as a lien on the real estate of the judgment debtor. Provided, that this section shall not apply to judgments against municipalities.

      . The terms of 12 0.$.2001 § 706(A) and (B) provide in pertinent part:
      A. Scope. This section applies to all judgments of courts of record of this state, and judgments of courts of record of the United States not subject to the registration procedures of the Uniform Federal Lien Registration Act, Section 3401 et seq. of Title 68 of the Oklahoma Statutes, which award the payment of money, regardless of whether such judgments also include other orders or relief.
      B. Creation of Lien. A judgment to which this section applies shall be a lien on the real estate of the judgment debtor within a county only from and after a Statement of Judgment made by the judgment creditor or the judgment creditor's attorney, substantially in the form prescribed by the Administrative Director of the Courts, has been filed in the office of the county clerk in that county.

        1. Presentation of a Statement of Judgment and tender of the filing fee, shall, upon acceptance by the county clerk, constitute filing under this section.
      (emaphasis added).

      . The pertinent terms of 12 O.S.Supp.1997 § 759(C) are:
      C. To extend a judgment lien beyond the initial or any subsequent statutory period, prior to the expiration of such period, one of the following shall be filed and indexed in the same manner as judgments in the office of the county clerk in the county in which the statement of judgment was filed and the lien thereof is sought to be retained:
      1. A certified copy of a general execution upon the judgment;
      2. A certified copy of a notice of renewal of judgment; or ~
      3. A certified copy of a garnishment summons issued against the judgment debtor.
      The judgment creditors' right to a lien cannot be changed after the lien is perfected. We cite here to the 1997 version of § 759(C) because that version was in effect when the Hurst and Strong creditors' liens stood perfected in 1998 and 1999.

      . According to Strong creditors, between 1988 and 1997 the filing date for a judgment lien was triggered by the date that the execution was filed and/or the date that garnishment summons was issued and filed in the county clerk's office. The judgment lien could only be continued in force by filing an execution in the county clerk's office or issuing a garnishment summons by the court clerk. If a garnishment summons was issued by the court clerk in the county where the judgment was entered, it must have been consecutively filed in the county where the lien is sought to be preserved. 12 0.$.1991 § 759(C). According to Strong creditors, that portion of § 759(C) which refers to extending a judgment lien beyond the initial or "any subsequent statutory period, prior to the expiration of such period ..." did not present an issue as to when the statutory period began to run. This was so because the only way to continue a judgment lien was to file an execution in the county clerk's office. They reason that the later § 706(B) requirement (of filing of a statement of judgment in the county clerk's office) replaced the necessity of filing an execution in the county clerk's office yet the time line for filing did not change. From this Strong creditors conclude that the statutory period runs from the date of the judgment lien's perfection (through filing a statement of judgment in the county clerk's office).

      . For the pertinent terms of 12 0.$.2001 § 706, see supra note 16.

      . An out-of-district federal judgment (or sister-state judgment) may be registered in Oklahoma by filing in the office of the court clerk of any county in this state a copy of the foreign judgment that has been authenticated in accordance with the applicable congressional act or state statute. 12 0.$.2001 § 721 (Uniform Enforcement of Foreign Judgments Act, 12 § 719 et seq.) A foreign judgment is "any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state." 12 0.$.2001 § 720.

      . Federal law requires the filing of a certified copy of the judgment in the district of the registering federal district court clerk, who will enter it on the records in substantially the same manner as if it had been rendered by the registering court. Arenas v. Sternecker, 109 F.Supp. 1, 2 (D.C.Kan.1953). "A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner." § 1963. Registration is permitted when the judgment has become final by appeal's termination or expiration of the time for appeal, or when ordered to be so deemed by the court for good cause shown. Id.; Associated Business Tel. Sys. v. Greater Capital, 128 F.R.D. 63, 68 (D.N.J.1989). The provisions of 28 U.S.C. § 1738 state the federally-mandated procedure for judgment authentication. Its terms provide that the judicial proceedings of any court of any U.S. state, territory, or possession "shall be proved or admitted in other courts within the United States ... by attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form."

      . The term "registered" denotes those foreign judgments which are filed in accordance with the procedures of 28 U.S.C. § 1963 or the Uniform Enforcement of Foreign Judgments Act. "Domesticated" refers to the antecedent common-law procedure for bringing an action upon the foreign judgment and securing its domestic counterpart.

      . Veiser v. Armstrong, 1984 OK 61, ¶ 7, n. 5, 688 P.2d 796, 799, n. 5 ("When a federal-court judgment is attacked collaterally in a state court, it is entitled to the same faith and credit as that given to it under the applicable federal law."); Salazar v. City of Oklahoma City, 1999 OK 20, ¶ 12, 976 P.2d 1056, 1061; Oklahoma Bar Ass'n v. Patterson, 2001 OK 51, ¶ 6 n. 8, 28 P.3d 551, 555-56 n. 8.
      The terms of 12 0.$.2001 § 712 provide in pertinent part that "[t]he foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit". Drillevich v. Stock, 1998 OK 39, ¶ 23, 958 P.2d 1277, 1282. See also the Uniform Foreign Money Judgments Recognition Act, 12 O.S.2001 § 712.

      . Uniform Enforcement of Foreign Judgments Act, 12 0.$.2001 § 719 et seq. Non-Oklahoma judgments are subject to attack for inefficacy at the time they are registered for enforcement in Oklahoma. Before the judgment is deemed enforceable and the five-year dormancy period begins to run, all challenges must be resolved in favor of the registrant. 12 0.$.2001 § 721

      . Drllevich, supra note 23, at ¶ 20, at 1281 (a Washington judgment, enforceable at the time of its registration in Oklahoma under the Uniform Enforcement of Foreign Judgments Act, supra note 24, was deemed a new Oklahoma judgment subject to the statutory dormancy period which begins to run from the date of registration).

      . For the terms of 12 0.S.1991 § 735, the so-called "dormancy statute," see supra note 15.

      . Drllevich, supra note 23, at ¶ 23, at 1282. Federal-court judgments are subject to the same dormancy rule that applies to registered sister-state judgments, foreign judgments as well as out-of-county Oklahoma judgments. We cannot encumber federal-court judgments with barnacles that out-of-state judgments do not have to bear.

      . The terms of 12 0.S.Supp.1997 § 759(A) provide that when a general execution is issued and placed in the custody of a sheriff for levy, a certified copy of the execution shall be filed in the office of the county clerk whose sheriff holds the execution and shall be indexed the same as judgments.

      . See the provisions of 12 0.S.1991 § 735, supra note 15.

      . Fidelity & Deposit Co. of Md. v. De Graw, 1947 OK. 94, ¶ 7, 178 P.2d 885, 886.

      . For the pertinent terms of 12 0.$.2001 § 706, see supra note 16.

      . Id.

      . At early common law there was no lien on real estate. A creditor had no remedy against his debtor's land. Judgment liens are dependent for their existence on strict adherence to the state statutory procedures. Chandlert-Frates & Reitz v. Kostich, 1981 OK 74, ¶ 8, 630 P.2d 1287, 1290; State v. Sterling, 1947 OK 108, ¶ 5, 179 P.2d 125, 127, 198 OK. 398.

      . For the terms of 12 0.S.Supp.1997 § 759(C), supra note 17.

      . The lien expires by operation of the common-law rule that the lien ceases to operate when the obligation it secures is extinguished. See (1) Riverside Nat. Bank v. Manolakis, 1980 OK 72, 19, 613 P.2d 438, 440-41 (when the underlying obligation for which security is given ceases to exist, a lien upon the security is automatically discharged; the lien cannot survive the life of the obligation it secured); (2) Fourth Nat'l Bank of Tulsa v. Appleby, 1993 OK 153, ¶ 26, 864 P.2d 827, 834 (the bar of limitations on a debt serves to extinguish any lien securing the debt);(3) Anderson v. Barr, 1936 OK 471, ¶ 25, 62 P.2d 1242, 1246, 178 Okl. 508 (a mortgage lien is extinguished by a sale); (4) 42 0.$.2001 § 22 ("'The sale of any property on which there is a lien ... in satisfaction of the claim secured thereby ... extinguishes the lien thereon.").

      . Id.

      . See supra note 35.

      . Id.

      . Jackson, supra note 7, at 115 n. 35, at 773 n. 35.

      . Rule 13, Rules for District Courts of Oklahoma, 12 0.$.Supp.2002, Ch. 2, App.

      . For the pertinent terms of 12 0.S.Supp.1997 § 759(C), see supra note 17. Certification is not only a requirement of § 759(C), but also of the general recording statute for the county clerk's office. The pertinent terms of 19 O0.S.2001 § 298(B) provide that "[alll documents filed of record in the office of the county clerk pursuant to subsection A of this section or pursuant to any other law shall be an original or a certified copy of an original document." (emphasis added).

      . Wilson v. Crutcher, 1936 OK 338, 176 Okla. 481, 56 P.2d 416, § 7, (the court held that the federal court clerk's certificate attesting that the copy of a judgment is a full, true, and correct copy of the original on file is a sufficient authentication for the document's admissibility); Carter v. Barry, 1932 OK 7, 154 Okla. 145, 7 P.2d 448, §§ 27-31, 154 Okla. 145, 7 P.2d 448.

      . See the pertinent terms of 12 0.S$.Supp.1997 § 759(C), supra note 17.

      . The federal court follows the state procedure for garnishment process. The affidavit is the document that triggers a garnishment process. Upon the filing of garnishment affidavit, the federal court clerk issues garnishment summons. The garnishment summons is filed as an attachment to the return of service. Strong creditors' tender of an uncertified and unstamped garnishment summons without a certificate by the federal court clerk is not an acceptable probative substitute under Rule 13, Rules for District Courts of Oklahoma, 12 O.$.Supp.2002, Ch. 2, App.

      . For the pertinent terms of 12 O.$.Supp.1997 § 759(C), see supra note 17.

      . See 12 §§ 2901, 2902, 3005 of the Oklahoma Evidence Code. Section 2901(A) states the general rule that authenticity is not assumed. Section 2901(B) delineates the various methods of authentication conforming to the general requirement of § 2901(A). One example in § 2901(B)(7) is "evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement or data compilation' in any form, is from the public office where items of this nature are kept."
      Section 2902 lists the circumstances in which extrinsic evidence of authenticity as a condition precedent to admissibility is not required. Although that section does not specifically address authentication of judicial records, its provisions make certain classes of documents self-authenticating (such as domestic public documents, certified copies of public records, and officially published documents) to which judicial records generally belong. Included among those are: (a) §2902(1)-'"[al document bearing a seal purporting to be that of the U.S. or of any state . or of a political subdivision, department, office or agency thereof, and a signature purporting to be an attestation or execution"; (b) § 2902(2)-even if there is no seal, a document purporting to bear the signature of an officer in an official capacity of any entity described in subsection 1 is sufficient if "a public officer having a seal and having official duties ... certifies under seal that the signer has the official capacity and the signature is genuine"; and (c) § 2902(4)-"a copy of an official record ... or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office ... certified as correct ... by [a] person authorized to make the certification ...". According to § 3005, a copy "certified as correct in accordance with section 2902" may prove the contents of an official record.

      . The pertinent terms of Rule 13(b) and (e), Rules for District Courts of Oklahoma, 12 O.$.Supp.2002, Ch. 2, App., are:
      b. All material facts set forth in the statement of the movant which are supported by acceptable evidentiary material shall be deemed admitted for the purpose of summary judgment or summary disposition unless specifically controverted by the statement of the adverse party which is supported by acceptable evidentiary material. If the motion for summary judgment or summary disposition is granted, the party or parties opposing the motion cannot on appeal rely on any fact or material that is not referred to or included in the statement in order to show that a substantial controversy exists.
      woke k
      e. If it appears to the court that there is no substantial controversy as to the material facts and that one of the parties is entitled to judgment as a matter of law, the court shall render judgment for said party.
      If the court finds that there is no substantial controversy as to certain facts or issues, the court may enter an order specifying the facts or issues which are not in controversy and direct that the action proceed for a determination of the remaining fact or issues. An order denying either summary judgment or summary disposition is interlocutory and is not reviewable on appeal prior to final judgment.
      (emphasis added).

      . MBA Commercial Const., Inc.v. Roy J. Hannaford Co., Inc., 1991 OK 87, ¶ 8 n. 3, 818 P.2d 469, 472 n. 3.

      . When a timely prejudgment request is made for a conclusion of law, the trial court would be duty-bound to make written conclusions of law and declarations establishing undisputed facts from which but a single inference may be drawn in favor of the moving party. Messinger v. Messinger, 1958 OK 296, ¶ 0, 341 P.2d 601, 602; Davis v. Gwaltney, 1955 OK 362, ¶ 11, 291 P.2d 820, 824. The terms of 12 0.$.2001 § 611 provide:
      Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state, in writing, the findings of fact found, separately from the conclusions of law.
      (emphasis added).

      . The record reveals only that in postjudgment stages to settle journal entry, Strong creditors requested opposing counsel to include certain conclusions of law and declarations of undisputed fact in the proposed journal entry for submission to the trial court. Failing to agree on the text, the parties jointly submitted the controversy to the trial court.

      . KMC Leasing Inc. v. Rockwell Standard Corp., 2000 OK 51, ¶ 12, 9 P.3d 683, 688-89; Oklahoma Turnpike Authority v. New Life Pentecostal Church of Jenks, 1994 OK 9, ¶ 15 n. 24, 870 P.2d 762, 768 n. 24.

      . Id.

      . The pertinent terms of Rule 4(e) Rules for District Courts of Oklahoma, 12 0.$.Supp.2002, Ch. 2, App., provide:
      e. Any party opposing a motion, except those enumerated in Section c above, shall serve and file a brief or a list of authorities in opposition within fifteen (15) days after service of the motion, or the motion may be deemed confessed.

      . The pertinent terms of Rule 4(c), Rules for District Courts of Oklahoma, 12 O.S.Supp.2002, Ch. 2, App., provide:
      c. Motions raising fact issues shall be verified by a person having knowledge of the facts, if possible; otherwise, a verified statement by counsel of what the proof will show will suffice until a hearing or stipulation can be provided. #o% ok

      . For this notion Strong creditors cite 12 O.S. 2001 § 2202, which provides in pertinent part:
      A. This section governs only judicial notice of adjudicative facts.
      # ow ote
      C. A court may take judicial notice, whether requested or not.
      D. A court shall take judicial notice if requested by a party and supplied with the necessary information.

      . Rule 13, Rules for District Courts of Oklahoma, 12 0.$.2001, Ch. 2, App.

      . Manley v. Brown, 1999 OK 79, ¶ 30, 989 P.2d 448, 457-58; Frey v. Independence Fire and Cas. Co., 1985 OK 25, ¶ 6, 698 P.2d 17, 20.

      . Among the evidentiary materials excluded from the record are Strong creditors' affidavit, several uncertified garnishment summons and garnishment affidavits, and a certified copy of the Missouri federal-court judgment.

      . See Part I, 1 6, supra.

      . The terms of 12 0.$.2001 § 1031(7) are:
      The district court shall have power to vacate or modify its own judgments or orders within the times prescribed hereafter: * * *7. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending;
      The terms of 12 0.$.2001 § 651(7) are:
      A new trial is a reexamination in the same court, of an issue of fact or of law or both, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of the party: * * *
      7. Newly discovered evidence, material for the party applying, which could not, with reasonable diligence, have been discovered and produced at the trial;


source: Caselaw Access Project

author: ADAMS, Presiding Judge:

license: Public Domain

text:
    2003 OK CIV APP 60
    Mardella WILLIAMS, Plaintiff/Appellant, v. HARROP INDUSTRIES, INC., Defendant/Appellee, and Starcon Construction Company; A.P. Green Industries, Inc.; The Babcock & Wilcox; Dresser Industries f/k/a Harbison-Walker Refractories Company; Midas International, Inc., f/k/a Enterprise-Black Diamond Corporation; Fyrepel Products, Inc; GAF Corporation; Honeywell, Inc.; M.H. Detrick Company; Asbestos Claims Management Corporation; North American Mfg. Co.; North American Refractories Company; Resco Products, Inc., f/k/a North State Pyrophyllite Co. Inc.; Owens Corning; Santeler Brothers Inc.; Schriber Industries, Inc.; Standard Asbestos Mfg. & Insulation Co.; Star Construction Company; Uniroyal, Inc.; Commercial Brick Corporation, f/k/a Wewoka Brick & Tile Company; John Doe No. 1; John Doe No. 2; John Doe No. 3; John Doe No. 4; John Doe No. 5; Defendants.
    No. 98,075.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    March 28, 2003.

      Charles F. Moser, John W. Norman, Thomas A. Wallace, Norman & Edem, PLLC, Oklahoma City, OK, for Plaintiff/Appellant.
    Murray E. Abowitz, Kayce L. Cisinger, Abowitz, Timberlake & Dahnke, P.C., Oklahoma City, OK, for Defendant/Appellee.
   OPINION

ADAMS, Presiding Judge:

T1 Mardella Williams (Williams), the surviving spouse of Andral Lee Williams, Sr. (Employee), appeals from a trial court judgment in favor of Harrop Industries, Inc. (Harrop) on her claim for damages arising out of Employee's death as the alleged result of exposure to asbestos dust in course of his employment by United Clay Pipe Company (Employer) from 1971 to 1973. More than ten years prior to the date Williams filed her petition in this case, Harrop built kilns and drying ovens at Employer's facility and supplied asbestos-containing materials, in particular part of the kiln cars, used at or incorporated into Employer's facility. The trial court's judgment was based on Harrop's summary judgment motion, which relied upon 12 0.9.2001 $ 109. Because we deduce it is impossible to conclude as a matter of law, on the evidentiary material presented to the trial court, that Williams' claim is barred by § 109, we reverse the trial court's judgment.

¶ 2 In addressing Williams' claim that summary adjudication was inappropriate, we must examine the pleadings, depositions, affidavits and other evidentiary materials submitted by the parties and affirm if there is no genuine issue as to any material fact and Harrop was entitled to judgment as a matter of law. Perry v. Green, 1970 OK 70, 468 P.2d 483. All inferences and conclusions to be drawn from the evidentiary materials must be viewed in a light most favorable to Williams. Ross v. City of Shawnee, 1984 OK 43, 683 P.2d 535. We are limited to the issues actually presented below, as reflected by the record which was before the trial court rather than one that could have been assembled. Frey v. Independence Fire and Casualty Company, 1985 OK 25, 698 P.2d 17.

¶ 3 According to § 109, no tort action to recover damages for injury to the person or wrongful death "arising out of" a "deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property" may be brought "against any person ... performing or furnishing ... construction of such an improvement more than ten (10) years after substantial completion of such an improvement." Williams argues the kiln cars, which included "asbestos rope" cannot be considered an "improvement to real property."

¶ 4 Harrop argues that the kiln cars were an integral part of the manufacturing process for which the building was constructed and therefore should be considered an improvement to real property. It relies heavily on Ball v. Harnischfeger Corporation, 1994 OK 65, 877 P.2d 45, which involved an injury that occurred while the victim was working on a crane. This reliance is misplaced. The only issue addressed in Ball was whether § 109 applied to a claim against the manufacturer of the crane where the manufacturer had been involved in the design, planning and installation of the crane.

15 The Ball Court never considered the issue of whether the erane and its components were an "improvement to real property" for purposes of § 109. The Court was called upon to answer a certified question from the federal court which assumed the crane was an improvement to real property.

¶ 6 The Oklahoma Supreme Court did consider the issue of whether a piece of equipment was an "improvement to real property" for purposes of § 109 in Smith v. Westinghouse Electric Corp., 1987 OK 3, 732 P.2d 466. Although the Court specifically left "unsettled by this opinion the question whether a § 109 "improvement to real property' must always meet our statutory definition of real property," 1987 OK 3, n. 12, 732 P.2d at 469, the Court concluded "[in Oklahoma, the answer must be derived from our taxing scheme." 1987 OK 3, ¶ 9, 732 P.2d at 470. Although we are not presently convinced that Smith holds the ad valorem tax treatment of the equipment is controlling on this issue, any analysis must, at the very least, include consideration of the ad valorem tax treatment of the equipment. The eviden-tiary material presented to the trial court did not address this critical part of the analysis.

¶ 7 As the moving party, Harrop had the obligation to provide the trial court with evi-dentiary material which demonstrated that no genuine material facts were in dispute. See Liberty Bank and Trust Company of Oklahoma City, N.A. v. Bachrach, 1996 OK 143, 916 P.2d 1377. Harrop did not do so, and summary adjudication was inappropriate. The trial court's judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

JOPLIN, C.J., concurs; and BUETTUTNER, J., dissents. -

      . The record contains a subsequent trial court order making the express findings and directions required in order to make its order regarding Williams' claim against Harrop final. See 12 ©.S.2001 § 994(A).

      . The certified question, from the United State District Court for the Eastern District of Oklahoma, was posed as follows:
      Do the provisions of Oklahoma's statute of repose, Okla.Stat. tit. 12 § 109, apply to the manufacturer of a product, which upon installation is determined to be an improvement to real property?
      Ball, 1994 OK 65, ¶ 1, 877 P.2d 45. (Emphasis added).


author: GREENWOOD, Judge:

text:
    2003 UT App 28
    ASPENWOOD, L.L.C.; JMS Hidden, L.L.C.; and JMS Financial, L.L.C., Plaintiffs and Appellants, v. C.A.T., L.L.C.; Paul Taggart; and John Coats, Defendants and Appellees.
    No. 20010735-CA.
    Court of Appeals of Utah.
    Feb. 6, 2003.
    Rehearing Denied Aug. 6, 2003.

      Brian W. Steffensen, David C. Condie, and Damien E. Davenport, Steffensen Law Office, Salt Lake City, for Appellants.
    Stephen B. Mitchell and Richard D. Bur-bidge, Burbidge & Mitchell, Salt Lake City, for Appellees.
    Before Judges JACKSON, GREENWOOD, and ORME.
   OPINION

GREENWOOD, Judge:

11 Plaintiffs Aspenwood, L.L.C. (Aspen-wood), JMS Hidden, LL.C., and JMS Financial, LLC. (together referred to as JMS) appeal various orders and judgments entered against them and in favor of Defendants CAT., LLC. (CAT), Paul Taggart (Tag-gart), and John Coats (Coats). We affirm.

BACKGROUND

2 Dan Mehr (Mehr) owned an excavation company called Baucorp, Inc. (Baucorp). Baucorp entered into a contract with Newport Holdings, Inc. (Newport), owned by Kent Hogan (Hogan), to acquire Newport's interest in various real estate development projects (the Newport Contract). The Newport Contract gave Baucorp an option to purchase and assume Newport's position in various contracts for real estate development projects described in an addendum. The addendum did not include legal descriptions or addresses of the properties, but only generalized reference to projects, usually by name of city. The Newport Contract did not specify a closing date, but indicated closings would occur "as developed."

T3 Mehr approached Coats and Taggart about their possible financial participation in the Newport enterprise. Coats and Taggart operated through their company, CAT. According to Mehr, Hogan had represented that he anticipated imminent subdivision approval for one of the proposed projects, Hidden Ridge, and that Ryland Homes had contracted to purchase 100 of the Hidden Ridge lots. As a result, Hidden Ridge would produce substantial cash flow by fall 1997. Mehr, Taggart, and Coats formed Aspen-wood for the purchase of the Hidden Ridge project and on May 22, 1997 executed an Operating Agreement. Baucorp and CAT each owned 50% of Aspenwood.

T4 Contemporaneously, Aspenwood executed a purchase agreement (the Hidden Ridge Agreement) with Newport and its partner in Hidden Ridge, Lonnie Oman (Oman), to purchase their interest in the Hidden Ridge project and assume various underlying contracts. CAT funded Aspen-wood's initial payment of $100,000 towards the purchase price of this project. The balance was to be paid in monthly installments with final payment due December 22, 1997. Mehr, Taggart, and Coats expected that within a couple of months, proceeds from a construction loan and lot sales would pay off their obligation under the Hidden Ridge Agreement. They also expected the funds would be sufficient to develop phase one of the Hidden Ridge project and fund other projects referred to in the Newport Contract. Aspenwood made further payments on the Hidden Ridge Contract and received title to phase one of the project.

T5 Unfortunately, the Hidden Ridge project did not generate funds as the parties had hoped. Aspenwood stopped making payments on the Hidden Ridge Contract in fall 1997. Negotiations between Aspenwood and the Hidden Ridge principals were unsuccessful. By November 1998, there were unpaid bills on the Hidden Ridge project of approximately $319,000.

T6 Mehr told Taggart and Coats that he knew of others who might buy out CAT's interest in Aspenwood. Subsequently, CAT sold its 50% interest in Aspenwood to JMS as documented in a written agreement (the JMS Purchase Agreement). The principals of JMS were Brian Steffensen, Harold Ro-sen, and Pam and Brent Watson. CAT quitelaimed its interest to JMS and was to receive the amount CAT had invested in Hidden Ridge, without any interest accrual. JMS did not pay CAT the amount agreed upon.

T7 In June 1999, Aspenwood and JMS filed suit, claiming that CAT, Taggart, and Coats had defrauded JMS into purchasing CAT's interest in Aspenwood. Aspenwood claimed that the Defendants had breached their contractual duty to provide funds necessary to purchase and develop the projects that Mehr had an option to purchase from Hogan. Aspenwood also sued Hogan and his partner, Oman, for fraud. Aspenwood settled its claim against Oman and Hogan for $200,000 plus 30% of profits to be realized from further development of Hidden Ridge. CAT counterclaimed seeking payments due under the JMS Purchase Agreement.

T8 The trial court set dates for discovery cutoff, motion cutoff, and trial. At the request of JMS, the court twice extended the discovery cutoff and continued the trial date. One business day before the motion cutoff date, Defendants filed a motion for partial summary judgment, seeking dismissal of all claims except the fraud claim against Tag-gart. JMS filed a rule 56(f) motion, seeking more time for discovery. The parties filed memoranda and supplemental memoranda setting forth their positions and the trial court conducted two hearings on the motion for partial summary judgment and subsequently granted the motion.

T9 After a pretrial hearing in the trial court's chambers, the trial court sent a scheduling order and notices to the parties indicating that the trial would be to the bench. Almost a year later, shortly before the scheduled trial date, JMS indicated to the court clerk it wanted a jury trial. After a conference with the parties, the trial court determined that JMS had waived its right to a jury trial.

{ 10 A four day bench trial was held, after which the trial court dismissed the fraud claim with prejudice. The trial court found in favor of CAT on its counterclaim for the amount due from JMS for the 50% interest in Aspenwood. Judgment was entered for CAT in the amount of $612,995 plus interest and reasonable attorney fees.

{11 After JMS filed a Notice of Appeal, CAT initiated proceedings to collect its judgment. The trial court issued an Order in Supplemental Proceedings requiring that the judgment debtors appear, through Harold Rosen, for questioning about the assets of the debtors. After a series of objections, motions, and hearings, Rosen's examination was scheduled to take place on July 80, 2001. CAT became aware of a $230,000 payment on July 29 from Hogan and Oman to Aspen-wood, as final settlement of sums due on the Hidden Ridge project. At CAT's request, the trial court issued a preliminary injunction prohibiting Aspenwood from disposing of the funds except for payment of ordinary business expenses. - Aspenwood subsequently voluntarily paid JMS's share of the payment to CAT as a credit on the judgment.

ISSUES

{ 12 JMS devotes the first eighteen pages of its one-hundred page opening brief to a description of thirty-two issues it raises on appeal, including where the issues were preserved at trial and the standards of review applicable. However, JMS only argues five of those issues in the body of the brief. Those issues include the following: (1) Was JMS given the opportunity to conduct full and fair discovery; (2) Did the trial court properly grant CAT's motion for partial summary judgment; (8) Did JMS waive its right to a jury trial; (4) Are the findings of fact clearly erroneous; and (5) Did the trial court err in its rulings during the post trial proceedings?

ANALYSIS

I. Opportunity to Conduct Full and Fair Discovery

¶ 13 JMS argues that CAT should have been sanctioned for discovery abuses and that the trial court improperly imposed a discovery schedule. "Trial courts have broad discretion in determining discovery sanctions because trial courts must deal first hand with the parties and the discovery process." Hales v. Oldroyd, 2000 UT App 75,¶ 15, 999 P.2d 588 (internal quotations, citation, and alteration omitted). Therefore, "appellate courts will interfere with the exercise of such discretion only when abuse of that discretion is clearly shown." Id. (internal quotations, citation, and alteration omitted).

14 A disagreement arose between JMS and CAT over the order in which certain depositions would occur. JMS claimed that CAT refused to produce party witnesses Taggart and Coats to be deposed and filed a Motion for Protective Order and Motion to Compel Production with the court. CAT responded with a Memorandum in Opposition to JMS's motions arguing that JMS was trying to prevent CAT from deposing JMS's party witnesses until the depositions JMS noticed were complete.

115 In response, the trial court met in chambers with counsel. Based on an agreement by counsel and the trial court, the court ordered depositions to be taken in a certain order. The court's order did not impose sanctions on either party. JMS claims that due to the court's order, it ran out of time to complete the depositions of several individuals, and therefore, was not able to conduct full and fair discovery. The record, however, indicates that JMS never objected to the court's order scheduling depositions. In addition, the trial court and CAT granted JMS several extensions in response to JMS's claims that it needed more time to take depositions. Given the ongoing dispute between the parties concerning the order of depositions to be taken, it was within the trial court's discretion to impose a deposition schedule and to not impose sanctions. See Oldroyd, 2000 UT App 75 at ¶ 15, 999 P.2d 588.

II. Motion for Partial Summary Judgment

A. Denial of JMS's Rule 56(f) Motion

¶ 16 JMS argues that the trial court erred in denying its rule 56(f) motion because it did not have time to complete discovery. See Utah R. Civ. P. 56(F) (stating court may order continuance of summary judgment to permit further discovery or affidavits). This court reviews the denial of a rule 56(f) motion for an abuse of discretion. See Brown v. Glover, 2000 UT 89, ¶ 29, 16 P.3d 540.

T17 On October 20, 2000, CAT filed a motion for partial summary judgment requesting that the trial court dismiss JMS's causes of action regarding alter ego, breach of contract/breach of fiduciary duty, and breach of contract/fraud against Coats. JMS filed a rule 56(f) motion for a continuance to permit the completion of discovery. JMS argued that without a continuance, it would be unable to fully oppose CAT's partial summary judgment motion because further depositions of Taggart and Coats, as well as the depositions of several other individuals, might lead to additional evidence of Coats's misrepresentation.

118 On December 19, 2000, after reviewing the parties' memoranda and hearing arguments, the trial court denied JMS's rule 56(f) motion and granted partial summary judgment as to Coats. The trial court ordered the parties to submit supplemental memoranda regarding the remaining issues for partial summary judgment. On February 6, 2001, the trial court held a second hearing on CAT's motion for partial summary judgment, which was granted.

¶ 19 Rule 56(F) allows the opposing party to submit an affidavit stating the reasons "he is presently unable to present evi-dentiary affidavits essential to support his opposition to summary judgment." Downtown Athletic Club v. Horman, 740 P.2d 275, 278 (Utah Ct.App.1987). "If the court finds the reasons to be adequate [it may] ... order that further discovery be conducted and continue the summary judgment motion." Id. Rule 56(f) motions should be "liberally considered" by the trial court "unless they are dilatory or lacking merit." Brown, 2000 UT 89 at ¶ 29, 16 P.3d 540 (quotations and citation omitted).

120 In denying JMS's rule 56(f) motion, the trial court found that JMS had failed to meet its burden. The trial court found that JMS failed to present any affidavit or statement by counsel of "what [was] being sought in the deposition that has not been had, that would lead to a basts for responding to the motion for summary judgment." The court further found that after CAT's motion was filed, JMS's "priorities have not been to try to establish criteria to dispute the motion for summary judgment, but rather to pursue other matters ...." The record amply supports the trial court's findings.

[ 21 For example, although JMS submitted a voluminous supplemental memorandum opposing summary judgment, it failed to provide the court with specifies of what further discovery was needed, what facts it believed would be uncovered, and how those facts were relevant to the summary judgment issues before the court. In addition, JMS was granted several discovery extensions. CAT stipulated to an extension when JMS claimed it had more depositions to take. CAT also stipulated to four separate extensions of time to permit JMS to file its reply memorandum, causing the partial summary judgment hearing date to be moved from November 20 to December 18. In addition, JMS was granted another extension for discovery with the cut off date finally set for December 29, 2000.

§22 Despite JMS's several discovery extensions, it failed to take any further depositions, from November 14 until December 18, 2000, of individuals it claimed were needed to oppose CAT's motion.

JMS speculated that documents and further depositions would implicate Coats, show that CAT was the alter ego of Taggart and Coats, and demonstrate that an oral agreement existed. However, the record supports the trial court's finding that JMS was not diligent in obtaining the depositions of key witnesses in order to dispute CAT's summary judgment motion, but instead spent this time taking the deposition of a less important individual. Further, JMS did not articulate adequate reasons for its rule 56(f) motion, but appeared to be "on a "fishing expedition for purely speculative facts after substantial discovery had] been conducted [of Coats and Taggart] without producing any significant evidencel.]" Downtown Athletic Club, 740 P.2d at 278. Sufficient time was provided to JMS to conduct discovery procedures to oppose the summary judgment motion. See id. Given JMS's apparent lack of diligence in pursuing discovery regarding CAT's partial summary judgment motion, the trial court did not abuse its discretion in denying JMS's rule 56(f) motion.

B. "Failure to Fund" Claim

11 24 JMS argues that the trial court erred in granting CAT's motion for partial summary judgment regarding whether there was an oral contract among Mehr, Taggart, and Coats obligating CAT to fund all of the Newport projects. "A party is entitled to summary judgment only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Lee v. Barnes, 1999 UT App 126, ¶ 7, 977 P.2d 550; see Utah R. Civ. P. 56(c). JMS contends that Mehr, Taggart, and Coats entered into an oral agreement prior to signing the Operating Agreement. The oral agreement, JMS argues, specified that the parties would pursue and develop five projects, all of which CAT would fund. On appeal, JMS argues that the trial court erred in determining that the Operating Agreement was integrated and unambiguous, thus, defeating its claim of CAT's obligation to fund projects.

¶ 25 First, JMS argues that the Operating Agreement was not intended to be an integration of all the agreements between Mehr, Taggart, and Coats. Relying on the affidavit and deposition of Mehr, JMS contends that the Operating Agreement was created to provide guidance, not to detail the specific projects to be pursued by the parties.

126 The trial court first addressed whether the contract was integrated. See Webb v. R.O.A. Gen., Inc., 804 P.2d 547, 551 (Utah Ct.App.1991) (stating "trial court must first determine if the contract is integrated"). The relevant portions of the Operating Agreement at issue are paragraphs 3.8, 34, and 12.2. These paragraphs state:

8.3 Contributions, Rights and Obligations of Investment Group. The Investment Group shall provide funds to the Company for the purchase of real Property and for approvals, engineering, utilities, improvements, property taxes and other development costs.
34 Additional - Contributions. - The Members may from time to time be required to make additional contributions to the capital of the Company. However, the requirement to make additional capital contributions shall be in accordance with Section 8.3 and shall be approved by the unanimous agreement of All Members. Voluntary contributions of additional capital also may be made by the Members, with the consent of the Executive Manager or a majority of the Members.
Except as indicated above, the Members have not agreed to and are not obligated to make any other contributions to the capital of the Company. No interest shall be paid to the Members on their initial Capital Accounts of the Company or on any subsequent capital contributions made by the Members....
12.2 Entire Agreement; Amendments. This Agreement shall constitute the entire contract between the parties, and there are no other or further agreements outstanding not specifically mentioned herein; provided, however, that this Agreement may be amended, altered, supplemented or modified by the written agreement of all the Members, except where a lesser percentage is required under the Agreement.

127 JMS argued to the trial court that Mehr's affidavit and deposition support that an oral agreement existed among Mehr, Tag-gart, and Coats prior to signing the Operating Agreement. CAT argued that because the Operating Agreement included an integration clause, the Agreement was integrated and evidence regarding an oral agreement could not be introduced to contradict its terms. In addition, CAT argued that Mehr's affidavit and deposition were inconsistent with each other and therefore, could not support JMS's argument that an oral agreement existed.

1 28 We believe that regardless of whether the Operating Agreement was integrated, the oral agreement claimed by JMS to exist is too vague to be enforceable. JMS claims that "Mehr, Taggart, and Coats agreed that they would investigate and evaluate each of the projects identified in the Newport Contract, and then proceed to finance, purchase, develop and then sell for a profit each of those projects that were determined to be economically viable." No information is given on what projects would be acquired, when or on what terms these projects would be acquired, or how and to what extent CAT would fund these projects. In sum, the terms and conditions of this oral agreement were not sufficiently definite to allow it to be enforced. See Brown's Shoe Fit Co. v. Olch, 955 P.2d 357, 363 (Utah Ct.App.1998) ("[Flor an agreement to agree to be specifically enforced, it must include sufficiently definite terms and conditions.").

¶ 29 JMS also argues that paragraphs 8.3 and 8.4 are ambiguous because they are capable of two interpretations, and therefore, extrinsic evidence is needed to determine the parties' intent. JMS contends that paragraph 8.3 can reasonably be read to require funding for the projects which Mehr, Tag-gart, and Coats had investigated and chose to pursue. JMS argues that any other interpretation renders paragraph 8.3 meaningless. CAT argues that paragraph 8.3 does not mean it was obligated to provide all funds necessary to purchase and develop various projects, but only that CAT would contribute funds for that purpose. CAT contends that it met its obligation when it contributed $350,000 in connection with the Hidden Ridge project, contemporaneously with the execution of the Operating Agreement.

¶ 30 "A contract is ambiguous only if the words ... may be understood to reach two or more possible meanings. However, a partly's] assertion of a different meaning does not in itself render a contract ambiguous." Sparrow v. Tayco Constr. Co., 846 P.2d 1323, 1327 (Utah Ct.App.1993) (internal quotations and citation omitted). If the contract provisions above are ambiguous, then relevant extrinsic evidence, including parol evidence, can be admitted to determine the parties' intent. See id. However, "[a] court may only consider extrinsic evidence if, after careful consideration, the contract language is ambiguous or uncertain." Lee, 1999 UT App 126 at ¶ 9, 977 P.2d 550 (quotations and citation omitted). Therefore, "when contract terms are complete, clear, and unambiguous ... they [can] be interpreted by the judge on a motion for summary judgment." Colonial Leasing Co. v. Larsen Bros. Constr., 731 P.2d 483, 488 (Utah 1986).

4 31 We conclude the trial court correctly determined that the language of the Operating Agreement's relevant paragraphs is unambiguous. The language of the Operating Agreement is clear; CAT was not required to provide additional capital for any project unless such funding was done "in accordance with Section 8.8 and ... approved by the unanimous agreement of All Members." This language unambiguously anticipates future capital contributions subject to later decisions and consensus by all the members.

{32 Consequently, the trial court did not err in granting summary judgment against JMS on the failure to fund claim.

III. Waiver of Right to a Jury Trial

¶ 33 JMS argues that the trial court erred in trying its case to the bench, instead of a jury. We review the trial court's finding that JMS waived its right to a jury trial for an abuse of discretion. See Security Title Co. v. Hunt, 9 Utah 2d 67, 337 P.2d 718, 719 (1959) (stating court did not abuse discretion by refusing jury trial), JMS contends that in an unrecorded chamber conference, the trial court told them that the trial would be scheduled as a bench trial, but if JMS had made a jury request, it would change the order. However, when JMS later indicated that a jury trial was requested, the trial judge relied on only his recollection of the event to determine that JMS had waived its right to a jury trial. CAT argues that while JMS originally requested a jury trial, it waived that right during the April 10, 2000 scheduling conference. CAT argues that the trial court's findings regarding waiver were properly based on notices sent by the court to counsel, the minutes of the scheduling conference, an affidavit of CAT's counsel, and JMS's failure to object to these notices.

1 34 When JMS filed its complaint, it requested a jury trial. However, on April 18, 2000, the court held an unrecorded pretrial scheduling conference with counsel. The minutes from that conference state that the case was set for a four day bench trial on December 19, 2000. On November 9, 2000, the court held a hearing on JMS's motion to continue the trial, which motion was granted. After this hearing, a copy of the court's minutes and notice of bench trial were sent to JMS. The minutes state that a bench trial was scheduled before Judge Bohling on April 17, 18, 19, and 20, 2001. It was not until March 29, 2001, that JMS filed an amended complaint and demand for jury trial The trial court denied JMS's demand for a jury, determining that JMS had waived its right to a jury trial.

135 The trial court based its determination on JMS's failure to object to the "scheduling order prepared by the Court during the conference and served on the parties at the conclusion of the conference," as well as "the minutes of the scheduling conference mailed to the parties immediately after the conference," both of which indicated that the case had been set for a bench trial. In addition, JMS failed to object to the November 9, 2000 notice mailed to it granting JMS's motion to continue trial and setting the case once again for a bench trial on April 17, 2001.

The Utah Code and Rules of Civil Procedure address jury trials in civil cases. Utah Code Ann. § 78-21-1 (2002) states:

In actions for the recovery of specific real or personal property, with or without damages, or for money claimed as due upon contract or as damages for breach of contract, or for injuries, an issue of fact may be tried by a jury, unless a jury trial is waived or a reference is ordered.

(Emphasis added.)

T37 Rule 38 of the Utah Rules of Civil Procedure addresses the right to a jury trial and describes the manner for requesting the same. See Utah R. Civ. P. 38. Rule 89 of the Utah Rules of Civil Procedure states:

(a) By jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the register of actions as a jury action. The trial of all issues so demanded shall be by jury, unless
(1) The parties or their attorneys of ree-ord, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a Jury

Utah R. Civ. P. 39.

¶ 38 A jury trial is an important constitutional right, but like other constitutional rights it can be waived. See Utah Const. art. I, § 10 ("A jury in civil cases shall be waived unless demanded."); International Harvester Credit Corp. v. Pioneer Tractor & Implement, Inc., 626 P.2d 418, 420 (Utah 1981) (stating jury trial may be waived); C.G. Horman Co. v. Lloyd, 28 Utah 2d 112, 499 P.2d 124, 126 (1972) (stating constitutional rights to appeal and to jury trial may be waived). Generally, a party who does not object to a bench trial setting waives the right to a trial by jury. See Security Title Co., 337 P.2d at 719 (holding trial court "did not abuse its discretion in refusing to grant a jury trial which appellant . requested at time of trial" because record showed appellant withdrew jury request during pre-trial and waived right to jury).

139 Although Utah has not directly' addressed waiver of a jury trial under similar cireumstances, the issue has been addressed by some federal courts. In Sewell v. Jefferson County Fiscal Court, 863 F.2d 461 (6th Cir.1988), the appellant properly requested a jury trial on the complaint in accordance with rule 38 of the Federal Rules of Civil Procdure. See id. at 463. However, during the final pretrial conference, the appellant requested a continuance of the jury trial date. See id. Appellant's motion was granted, but the court stated in its order that the case was continued until a later date "for a trial before the court." Id. The appellant made no objection to the court's order until the commencement of trial. See id. On the day of trial, the appellant requested the court to summon a jury. See id. The court examined the order, which noted that the trial was to be tried before the court. See id. After a discussion with counsel, the court concluded that the appellant had waived the right to a jury trial by failing to timely object to the court's pre-trial order removing the case from the jury trial docket. See id.

{40 The appellant appealed arguing that her fundamental constitutional right to a trial by jury had been denied. See id. at 464. The appellate court addressed whether the appellant had waived her right to a jury by reviewing rule 39(a) of the Federal Rules of Civil Procedure. See id. The court noted that the "requirements of Rule 39(a) have 'been interpreted broadly so as to encompass orders entered by the court and not objected to'" Id. (citation - omitted). Therefore, because the appellant failed to object to the court's written order for a bench trial, the order "constituted a 'sufficient entry in the record to satisfy the requirements of Fed.R.Civ.P. 39(a)"" Id. at 465 (citation omitted). The court also stated that the appellant's failure to object to the "order for almost four months provided additional support for the district court's conclusion that there had been a waiver of the jury trial." Id.

¶ 41 Other federal courts have similarly held that a jury trial can be waived under rule 39. See, eg., United States v. Missouri River Breaks Hunt Club, 641 F.2d 689, 693 (9th Cir.1981) ("The district judge's statement that the parties had agreed to submit the case to the court on the record was sufficient to constitute 'an oral stipulation made in open court and entered in the record' as required by Fed.R.Civ.P. 89(a) for a valid waiver of the jury trial right."); Moser v. Texas Trailer Corp., 623 F.2d 1006, 1011 (5th Cir.1980) (stating appellant consented to amended complaint waiving jury trial); Southland Reship, Inc. v. Flegel, 534 F.2d 639, 644 (5th Cir.1976) (holding failure to object for over a month after judge's oral ruling regarding bench trial sufficient to affirm waiver of jury trial); General Bus. Servs., Inc. v. Fletcher, 435 F.2d 863, 864 (dth Cir.1970) (concluding that appellant waived right to jury when appellant failed to object to court's pretrial order that " 'stated all parties had waived trial by jury,"" and where there was no record of pretrial conference to dispute that conclusion).

1 42 We find the analysis of these federal cases under rule 39 persuasive. Therefore, we hold that the trial court did not abuse its discretion in determining that JMS waived its right to a jury trial because, after having notice that the trial was set before the bench, JMS failed to object until the eve of trial.

IV. Findings of Fact

¶ 43 JMS argues that the evidence at trial undisputedly demonstrated that Taggart and CAT made actionable representations and warranties to JMS and that Taggart and CAT failed to disclose several material facts known to them about the Hidden Ridge project. Thus, JMS contends that the trial court's findings of fact are contrary to the evidence and that the court erred in dismissing JMS's claims for fraud and misrepresentation against Taggart and CAT. JMS's argument consists of the following:

Based upon the trial evidence marshaled by JMS set forth in the foregoing argument, Post-Trial memoranda, Objection and in Addendum 6, all of which are incorporated herein by reference due to page constraints, JMS respectfully asks this Court to conclude that the findings of fact complained of are clearly erroneous.

(Emphasis added.)

T44 When considering arguments on appeal, we look to the requirements of rule 24 of the Utah Rules of Appellate Procedure to determine whether an appellant has adequately briefed the issues. "A party challenging a fact finding must first marshal all record evidence that supports the challenged finding." Utah R.App. P. 24(a)(9). Instead of marshaling the evidence as required under rule 24, JMS simply refers the court to its addenda, arguing that due to the one-hundred page limit it was "forced to rely more heavily than usual on the analysis in their memoranda filed with the [trial] court."

¶ 45 In State v. Jiron, 866 P.2d 1249 (Utah Ct.App.1993), this court held that an appellant's brief violated rule 24(a)(9) when it incorporated by reference a memorandum submitted to the trial court in lieu of an argument. See id. at 1249. This court stated:

We recognize the utility of addenda to briefs for providing the court with materials that are essential to a full understanding of the issues briefed. Addenda typically consist of materials such as the trial court's findings of fact, conclusions of law and judgment; a portion of the trial tran-seript; the contract which is at issue in the case; a key minute entry, ete. However, it is improper to use an addendum to incorporate argument by reference that should be included in the body of the brief, Allowing this incorporation technique could result in this court's receiving lengthy briefs composed largely of incorporated materials.

Id.; see also Utah R.App. P. 24(F) (stating addendum contents include "statutes, rules, regulations, or portions of the record as required by paragraph (a)").

146 JMS admits that it did not marshal the evidence within the body of its brief, stating it could not because the one-hundred page limit "forced" it to rely on its addenda to satisfy its marshaling burden. We are not persuaded by JMS's argument. JMS's referral to its addenda is a blatant attempt to skirt the court's grant of an extended one-hundred page limit and is in violation of rule 24(F). Furthermore, JMS has not attempted to meet its burden of demonstrating that despite the marshaled evidence supporting the findings, "the trial court's findings are so lacking in support as to be against the clear weight of the evidence, thus making them clearly erroneous." ELM, Inc. v. M.T. Enter., Inc., 968 P.2d 861, 865 (Utah Ct.App.1998) (quotations and citations omitted). Because JMS fails to marshal the evidence and properly brief this issue as required under rule 24, we decline to review it.

V. Post Trial Proceedings

¶ 47 First, JMS appears to claim that Harold Rosen should not have been ordered to appear and answer questions about JMS, and other related entities' financial affairs. JMS argues that the trial court erred in requiring Rosen to appear and give testimony on behalf of these entities because rule 69 of the Utah Rules of Civil Procedure does not allow the court to choose the person who will appear on behalf of these entities. Rule 69 of the Utah Rules of Civil Procedure states in relevant part:

At any time when execution may issue on a judgment, the court from which an execution might issue shall, upon written motion of the judgment ereditor, with or without notice as the court may determine, issue an order requiring the judgment debtor, or if a corporation, any officer thereof, to appear before the court, a master, or other person appointed by the court, at a specified time and place to answer concerning the judgment debtor's property....
... At any time when execution may issue on a judgment, upon proof by affidavit or otherwise to the satisfaction of the court that any person or corporation has property of such judgment debtor or is indebted to the judgment debtor in an amount exceeding two hundred fifty dollars, not exempt from execution, the court may order such person or corporation or any officer or agent thereof, to appear before the court or a master at a specified time and place to answer concerning the same.

Utah R. Civ. P. 69(0)-(p).

148 After judgment had been entered in favor of CAT, the trial court entered an order in supplemental proceedings requiring Rosen to appear on behalf of JMS to answer questions regarding its assets, liabilities, and financial affairs. Rosen is the president of J.D. West, Inc., which manages JMS Financial. JMS Financial is a member and manager of JMS Meadow and JMS Brook and owner of JMS Hidden. These entities were JMS Financial's only source of significant assets. Rosen is not only a principal, but also performs accounting services for these entities as a certified public accountant. Ro-sen, as president of J.D. West, Inc., and manager of JMS Financial, was a proper party under rule 69, through whom CAT could examine the assets, Habilities and financial affairs of those entities, Given Ro-sen's position, the trial court did not abuse its discretion in ordering Rosen to appear and answer questions regarding the financial affairs of these entities.

¶ 49 JMS further argues that the trial court abused its discretion in sanctioning Rosen with a $500 fine. The trial court ordered Rosen to appear and provide CAT with full discovery of JMS Financial, JMS Hidden, and the other related entities' assets available for execution or that otherwise might become the basis for recovery. However, when Rosen appeared pursuant to the court's order, he brought with him only two pages of documents, which consisted of JMS Financial's balance sheet and profit and loss statement. Rosen refused to testify concerning the assets, liabilities, and financials of the other related entities. Rosen was held in contempt and sanctioned to pay CAT's attorney fees of $500. Rosen was then ordered to appear with all relevant financial documents. The record adequately supports the trial court's sanction of Rosen. Therefore, the trial court did not abuse its discretion.

¶ 50 Next, JMS argues that the charging orders entered against its membership interest in Aspenwood and against its membership interest in JMS Meadow and JMS Brook were improper. However, JMS, in opposing a temporary restraining order and preliminary injunction against Aspen-wood, used the fact that the trial court had issued charging orders against its interest in Aspenwood to bolster its argument that a temporary restraining order and preliminary injunction - were - unnecessary - because "[clharging orders [were] already in place"; therefore, CAT would be paid should "any monies come from Aspenwood by way of distribution." Moreover, JMS did not contest these orders before the trial court. For these reasons, JMS waived its right to contest the charging orders on appeal. See Dejavue, Inc. v. U.S. Energy Corp., 1999 UT App 355,¶ 11, 993 P.2d 222 ("It is well settled that issues not raised before the trial court are waived on appeal.").

¶ 51 Finally, JMS argues that the trial court erred by imposing a preliminary injunction against Aspenwood because it was no longer a party after CAT's summary judgment motion was granted. At the time the preliminary injunction was served, Aspen-wood was no longer represented by its trial counsel, but had new counsel. Aspenwood's new counsel did not oppose the preliminary injunction so long as Aspenwood could continue to pay its creditors. With that proviso, Aspenwood voluntarily paid CAT those funds that would have been otherwise payable to JMS Hidden. Therefore, JMS's argument is moot. See Phillips v. Schwendiman, 802 P.2d 108, 110 (Utah Ct.App.1990) ("An appeal is moot when the present controversy between the parties is ended and 'the requested judicial relief cannot affect the rights of the litigants." (citation omitted)). Nevertheless, under rule 69(q) of the Utah Rules of Civil Procedure, the trial court had discretion to impose a preliminary injunction to prevent Aspenwood from distributing its funds until legitimate debts could be determined. See Utah R. Civ. P. 69(q) (allowing court to prohibit transfer of property belonging to or owed to debtor). Thus, the trial court did not abuse its discretion by imposing a preliminary injunction against Aspenwood.

CONCLUSION

152 In sum, the trial court did not abuse its discretion in scheduling the order in which depositions were to be taken or in failing to impose sanctions on CAT. Neither did the trial court abuse its discretion in denying JMS's rule 56(f) motion due to its lack of diligence in pursuing matters that would support its opposition to CAT's partial summary judgment motion. Further, we conclude that the trial court correctly determined that the Operating Agreement did not impose an obligation to fund on CAT, and the alleged oral agreement was too vague to be enforceable. In addition, JMS waived its right to a jury trial by failing to object until the eve of trial to the trial court's notices stating that the trial was set before the bench. Because JMS did not properly marshal the evidence within the body of its brief, we decline to review its argument that the trial court's findings of fact were clearly erroneous. Thus, the trial court did not err in granting judgment to Defendants on the claims of fraud. Finally, we find no error in the trial court's orders in the post trial proceedings. Therefore, we affirm.

53 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, GREGORY K. ORME, Judge.

      . The facts and parties in this action, as well as the court proceedings, are complicated. We attempt to describe them as clearly as possible and limit our description to the issues addressed herein.

      . JMS took the depositions of Taggart for a day and a half, and Coats for a half day, but claimed these depositions were incomplete. - During Coats's deposition JMS questioned him regarding issues pertinent to the summary judgment motion.

      , JMS did take a short deposition of Jim Richie on December 18, 2002, but Richie's deposition had nothing to do with the issues involved in the summary judgment motion.

      . Utah Rule of Civil Procedure 38 is virtually identical to its federal counterpart.

      . Utah Rule of Civil Procedure 39 is virtually identical to its federal counterpart.

      . - It is unclear to this court what is meant by the phrase "trial evidence marshaled by JMS set forth in the foregoing argument." There is no marshaling in part IV of JMS's brief, entitled, in part, "Judge Bohling's Findings of Fact Were in Many Material Respects Unsupported by the Clear and Essentially Undisputed Facts Adduced at Trial." Part IV consists of only one or two pages.