author: /s/ Joseph M. Watt Chief Justice

text:
    2003 OK 93
    In the Matter of the REINSTATEMENT OF Joseph Ray OUJESKY, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
    SCBD No. 4777.
    Supreme Court of Oklahoma.
    Oct. 28, 2003.
   ORDER

¶ 1 1. The Petitioner, Joseph Ray Oujesky, was admitted to the Oklahoma Bar Association in September, 1985, but he did not practice law in the state of Oklahoma.

¶ 2 2. The petitioner moved to Texas and became a member of the State Bar of Texas on May 29, 1986. Oujesky is currently and has been a member in good standing of the State Bar of Texas since admission.

¶ 3 3. On January 10, 2003, Joseph Ray Oujesky filed a petition for reinstatement to the Oklahoma Bar Association.

¶ 4 4. A hearing before the Trial Panel of the Professional Responsibility Tribunal was held on August 22, 2003, and the Trial Panel unanimously recommended that petitioner be reinstated.

¶ 5 5. Petitioner has agreed to pay the fees and expenses of investigation in processing his petition for reinstatement and the Oklahoma Bar Association has filed an application to assess costs in the amount of $291.20.

¶ 6 Upon consideration of the matter this Court finds:

¶7 1) Petitioner’s reinstatement is governed by Article II, section 2(d), Rules Creating and Controlling the Oklahoma Bar Association, Okla. Stat. tit. 5, ch.l, app.l (2001), which requires compliance with Rule 11.1 through Rule 11.7 of the Rules Governing Disciplinary Proceedings, Okla. Stat. tit.5, ch. 1, app. 1-A (2001).

¶ 8 2) The petitioner has met all the procedural requirements necessary for reinstatement to the Oklahoma Bar Association under Rule 11, Rules Governing Disciplinary Proceedings.

¶ 9 3) The petitioner has established by clear and convincing evidence that he has not engaged in the unauthorized practice of law in the State of Oklahoma.

¶ 10 4) The petitioner has established by clear and convincing evidence that he possesses the competence and learning in the law required for reinstatement to the Oklahoma Bar Association.

¶ 11 5) The petitioner has established by clear and convincing evidence that he possesses the good moral character that would entitle him to be reinstated to the Oklahoma Bar Association.

¶ 12 IT IS THEREFORE ORDERED that the petition of Joseph Ray Oujesky for reinstatement to membership in the Oklahoma Bar Association be granted. Petitioner is directed to pay costs of the proceeding in the amount of $291.20 within thirty (30) days of the date of this order.

¶ 13 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 27th day of October, 2003.

/s/ Joseph M. Watt Chief Justice

¶ 14 ALL JUSTICES CONCUR.


source: Caselaw Access Project

author: OPALA, V.C. J.

license: Public Domain

text:
    2003 OK 95
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. William Nelson GENTRY, Respondent.
    No. SCBD 4773.
    Supreme Court of Oklahoma.
    Nov. 4, 2003.

      Dan Murdock, General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.
    William Nelson Gentry, pro se, Montclair, California, for Respondent.
   OPALA, V.C. J.

¶ 1 In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and of its disposition? and (2) Is a public censure, the required attendance of Oklahoma-approved mandatory continuing legal education (MCLE) programs, the filing of an annual MCLE report and the payment of costs associated with this proceeding an appropriate disciplinary sanction for respondent’s breach of professional discipline? We answer both questions in the affirmative.

I.

INTRODUCTION TO THE RECORD

¶ 2 The Oklahoma Bar Association (OBA) charged William Nelson Gentry (Gentry or respondent), a licensed Oklahoma lawyer, with one count of professional misconduct by filing a formal complaint in accordance with the provisions of Rule 6, Rules Governing-Disciplinary Proceedings (RGDP). The complaint alleges in one count Gentry’s violation of the RGDP and the Oklahoma Rules of Professional Conduct (ORPC). The Bar rests its count on RGDP Rules 1.3 and 7.7 and ORPC Rule 8.4(c); it withdraws its earlier reliance on ORPC Rule 8.4(b).

¶3 The Professional Responsibility Tribunal (PRT) held a hearing on 13 May 2003 to consider the charges. The trial panel recognized for the record the admission of the parties’ fact stipulations, conclusions of law and agreed disciplinary recommendation. Respondent admits (by stipulation) that his conduct violates RGDP Rules 1.3 and 7.7 and ORPC Rule 8.3(c).

¶4 Upon completion of the hearing and consideration of the stipulations and testimony on file, the trial panel issued its report (which incorporates the parties’ stipulations). It recommends that the respondent (1) receive a public reprimand (2) annually attend twelve (12) hours of Oklahoma-approved MCLE courses (including one hour of ethics) (3) file an annual MCLE report for as long as he maintains an Oklahoma license to practice law or until he reaches the age of sixty-five (65) and (4) pay the costs of this proceeding.

II.

THE RECORD BEFORE THE COURT PROVIDES SUFFICIENT EVIDENCE FOR A MEANINGFUL DE NOVO CONSIDERATION OF ALL FACTS RELEVANT TO THIS PROCEEDING.

¶ 5 In a bar disciplinary proceeding this court functions in an adjudicative capacity as a licensing organ of the State having exclusive original jurisdiction. Its authority rests on the constitutionally vested, nondelegable power to regulate the practice of law (which includes the ethics, licensure, and discipline of the State’s legal practitioners). In deciding whether discipline is warranted and what sanction, if any, is to be imposed for the misconduct charged, this court conducts a nondeferential, full-scale de novo examination of all relevant facts, in which the findings, conclusions and recommendations of the trial panel are neither binding nor persuasive. We are not restricted by the scope-of-review rules that govern corrective relief on appeal or in cer-tiorari proceedings in which another tribunal’s findings of fact may have to be left undisturbed by adherence to some law-imposed standards of deference.

¶ 6 This court’s duty can be discharged only if the trial panel submits a complete record of the proceedings. Our initial task is to ascertain whether the materials are sufficient to permit (a) an independent determination of the critical facts and (b) the crafting of an appropriate measure of discipline. The latter' is that which (1) is consistent with the discipline imposed upon other lawyers who have committed similar acts of professional misconduct and (2) avoids the vice of visiting disparate treatment on the respondent lawyer.

¶ 7 Gentry admits, and the proof supports, the charge of professional misconduct. Upon consideration of the record, we conclude that its contents are adequate for this court’s de novo consideration of respondent’s professional misconduct.

III.

FACTS ADMITTED BY STIPULATION

¶ 8 The parties have tendered their stipulations by which respondent admits the facts which serve as the basis of the charges against him. A stipulation of fact is an agreement by the parties that a particular fact (or facts) in controversy stands admitted. It serves as an evidentiary substitute that dispenses with the need for proof of facts that are conceded by the parties’ agreement. Stipulations are subject to the approval of the court in which they are entered. Respondent’s fact stipulations (a) have been made voluntarily and with knowledge of their meaning and legal effect and (b) are not inconsistent with any facts otherwise established by the record. We hence approve and adopt the parties’ tendered stipulations.

¶ 9 The charge against respondent arises from notification by a foreign jurisdiction that respondent is being investigated for the unauthorized practice of law following surrender of his legal license at the post-disciplinary stage of the proceeding. Gentry received his legal education in Oklahoma and passed the state’s bar examination in 1969. Shortly thereafter he moved to California, passed that state’s licensure requirements and has resided there ever since. He primarily practiced law in a variety of capacities from 1970 to 1993.

¶ 10 In 1993 Gentry stipulated to charges brought against him by the California State Bar in response to several client complaints. Based on the stipulations the California Supreme Court suspended Gentry from the practice of law for one year. It then suspended the suspension’s effectiveness and placed him on probation with the requirement that certain conditions be met. Gentry voluntarily surrendered his legal license prior to the probation period’s lapse. He neither notified the OBA of the discipline imposed upon him nor of his subsequent resignation from the California Bar.

¶ 11 Gentry taught school for approximately five years following his 1993 resignation from the California Bar. In 1999, in anticipation of applying for reinstatement to the California Bar, he entered into a partnership with another attorney who is licensed to practice in that jurisdiction. Respondent testified before the PRT that he was to handle those matters that required licensure to practice law in Oklahoma and, in addition, act as office manager for the firm. The firm’s letterhead clearly indicated that Gentiy was licensed to practice law solely in Oklahoma and his partner in California.

¶ 12 It is Gentry’s purported role as law office manager that gives rise to today’s proceeding. In 2001 Gentry sent a letter to Prudential Life Insurance Company at the request of a long-time former client. The letter was on their firm’s letterhead and was signed by Gentry. It is this letter that led to an investigation of Gentry by the State Bar of California for the unauthorized practice of law. Because Gentry was still licensed to practice law in Oklahoma, the State Bar of California notified the OBA of the grievance against Gentry. Gentry was then notified by the OBA of the opening of this Oklahoma investigation.

¶ 13 Gentry is charged with (1) failing to notify the Bar when discipline for lawyer misconduct has been imposed by a foreign jurisdiction, RGDP Rule 7.7(2) commission of an act contrary to prescribed standards of conduct, RGDP Rule 1.3, and (3) conduct involving dishonesty, fraud, deceit or misrepresentation, ORPC Rule 8.4(c). Gentry stipulates that his actions violated these provisions. We accept respondent’s stipulations — and find by clear and convincing evidence — that his admitted conduct offends each rule with whose violation he stands charged.

IV.

MITIGATING FACTORS

¶ 14 Mitigating circumstances may be considered in arriving at the assessment of the appropriate measure of discipline. The PRT report contains numerous factors to be considered for purposes of mitigation. It states: (1) respondent’s letterhead clearly represents that he is licensed to practice law solely in Oklahoma; (2) that it was because of depression — rather than any intent to conceal that respondent failed to report to the OBA that disciplinary action had been taken against him in another jurisdiction; (3) the California State Bar will address any unauthorized practice of law issues that may be revealed in a future investigation of the respondent (4) respondent has accepted full responsibility for his actions and no harm was caused to any client or third party as a result of respondent’s misconduct and (5) respondent has had a long military career, retiring at the rank of Lieutenant Colonel in the United States Army, and a stable thirty-seven year marriage, exhibiting a consistent lifestyle. We take these into account in determining the discipline to be imposed on the respondent.

V.

RESPONDENT’S MISCONDUCT WARRANTS A PUBLIC REPRIMAND

¶ 15 A license to practice law is not conferred for the benefit of the licensee, but for that of the public. The disciplinary process, including the imposition of a sanction, is designed not to punish the delinquent lawyer, but to safeguard the interests of the public, the judiciary, and the legal profession. Disciplinary sanctions serve not only to deter the offending lawyer from committing similar acts in the future, but also operate to put others on notice that departures from ethical norms will not be tolerated. The disciplinary measure to be imposed upon the offending lawyer should be consistent with the quantum of discipline visited upon other practitioners for similar acts of professional misconduct.

¶ 16 ORPC Rule 7.7(a) requires a lawyer to inform the OBA’s General Counsel within twenty days of a final order of discipline imposed by another jurisdiction. A lawyer’s failure to report a previous disciplinary action imposed upon him in another jurisdiction is a serious offense. The parties are in agreement concerning discipline and submit that a public censure is warranted for respondent’s misconduct. The parties cite to State ex rel. Oklahoma Bar Ass’n v. Patterson as precedent for their disciplinary recommendation. There the court imposed a public censure where it was determined that the attorney-respondent’s failure to disclose disbarment by another jurisdiction was not a “deliberate effort at concealment.” The PRT report further notes that it agrees with the general counsel’s position that whether Gentry was or is engaging in the unauthorized practice of law, while relevant to the determination of the discipline to be imposed here today, is best left for assessment to the authorities in the State of California.

¶ 17 Extant jurisprudence dealing with Rule 7.7, RGDP, violations is scarce. We agree with the parties’ recommendation. Here, as in Patterson, the respondent’s failure to inform the Bar that he had been disciplined by a foreign jurisdiction does not appear to be a “deliberate effort at concealment.” At the time of his resignation from the practice of law in California, respondent’s mental state (from which he has since recovered) was the primary factor for his failure to report the discipline imposed upon him by that jurisdiction. He was suffering from depression, recovering from a failed suicide attempt and had no intention of practicing law in the future. There is no indication that respondent acted willfully or fraudulently with respect to this grievance. Respondent exhibits remorse for his lapse and has fully cooperated with the Bar during its investigation of the charges against him. No harm was caused to a client or third party as a result of his actions. Under these circumstances, and in accordance with the teachings of Patterson, this dereliction does not warrant a severe sanction. The discipline visited upon respondent serves as a warning to him and all practitioners that a violation of the rules is not to be tolerated.

¶ 18 We also agree that whether respondent was or is engaging in the unauthorized practice of law in California is a serious matter which must be left for assessment to California authorities. We emphasize this and remind respondent that should this investigation result in either attorney discipline or a conviction based upon a foreign code’s violation he may likely be subject to reciprocal proceedings in accordance with Rule 7.7, RGDP.

VI.

SUMMARY

¶ 19 In sum, the record bears clear and convincing proof that respondent’s participation in one count of unprofessional conduct violates the rules governing professional responsibility. After a thorough review of the record and due recognition of the tendered mitigating factors,

RESPONDENT IS ORDERED DISCIPLINED BY PUBLIC CENSURE. HE IS DIRECTED TO ATTEND TWELVE HOURS OF OKLAHOMA-APPROVED MCLE PROGRAMS, INCLUDING ONE HOUR OF ETHICS, FILE ANNUAL MCLE REPORTS FOR AS LONG AS HE MAINTAINS HIS OKLAHOMA LICENSE (OR UNTIL HE REACHES THE AGE OF 65), AND IS DIRECTED TO PAY THE COSTS OF THIS PROCEEDING, WHICH SHALL BE DUE NOT LATER THAN NINETY DAYS AFTER THIS OPINION BECOMES FINAL.

¶ 20 All Justices concur.

      . The record consists of the PRT hearing, the PRT report, the parties’ stipulations of fact and conclusions of law, the mitigating factors to be considered in conjunction with the charges, the exhibits offered by the parties and a joint brief of the parties in support of the PRT report and recommendation.

      . Respondent has been a resident of the state of California since 1970. He has received an exemption from the Oklahoma MCLE requirements since 1989 based on his residential status.

      . The provisions of RGDP Rule 6.1, 5 O.S.2001, Ch. 1, App. 1-A, state in pertinent part:
      "The proceeding shall be initiated by a formal complaint prepared by the General Counsel, approved by the Commission, signed by the chairman or vice-chairman of the Commission, and filed with the Chief Justice of the Supreme Court.

      . 5 O.S.2001 Ch. 1, App. 3-A.

      . The terms of Rule 1.3, RGDP, 5 O.S.1991 Ch. 1, App. 1-A, provide:
      "The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.”

      . The complaint alleged the respondent violated Rule 7.7, ORPC. Reference to the rule was amended at the time of trial to reflect that the ' allegation was in reference to Rule 7.7, RGDP. The pertinent provisions of Rule 7.7, RGDP, provide:
      "(a) It is the duty of a lawyer licensed in Oklahoma to notify the General Counsel whenever discipline for lawyer misconduct has been imposed upon him/her in another jurisdiction, within twenty (20) days of the final order of discipline, and failure to report shall itself be grounds for discipline. * * * ”

      . The terms of ORPC 8.4(c) state:
      "It is professional misconduct for a lawyer to: * * * (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; * * * "

      . Gentry has not been convicted of a criminal act. The Bar has hence withdrawn its charge that Gentry violated ORPC Rule 8.4(b) which states:
      "It is professional misconduct for a lawyer to:
      ⅜ * *(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; * * * "

      . The respondent represented himself via telephone from his office in Montclair, California.

      . State ex rel. Oklahoma Bar Ass’n v. Schraeder, 2002 OK 51, ¶ 5, 51 P.3d 570, 572; State ex. rel.

        Oklahoma Bar Ass'n v. Cox, 2002 OK 23, ¶ 5, 48 P.3d 780, 782; State ex rel. Okla. Bar Ass'n v. Leigh, 1996 OK 37, ¶ 11, 914 P.2d 661, 666; State ex rel. Okla. Bar Ass’n v. Eakin, 1995 OK 106, ¶ 8, 914 P.2d 644, 647; State ex rel. Okla. Bar Ass'n v. Bolton, 1994 OK 53, ¶ 15, 880 P.2d 339, 344; State ex rel. Okla. Bar Ass’n v. Donnelly, 1992 OK 164, ¶ 11, 848 P.2d 543, 545; State ex rel. Okla. Bar Ass'n v. Raskin, 1982 OK 39, ¶ 11, 642 P.2d 262, 265; In re Integration of State Bar of Oklahoma, 1939 OK 378, 95 P.2d 113, 115.

      . Schraeder, supra note 10, at ¶ 5 at 573; Cox, supra note 10, at ¶ 5 at 782; Eakin, supra note 10, at 648; State ex rel. Okla. Bar Ass’n v. Downing, 1990 OK 102, ¶ 12, 804 P.2d 1120, 1122-23; Raskin, supra note 10, at ¶ 11 at 265-66.

      . Schraeder, supra note 10, at ¶ 5 at 573; Cox, supra note 10, at ¶ 5 at 782; Leigh, supra note 10, at 666; Eakin, supra note 10, at ¶ 8, at 647-48; State ex rel. Okla. Bar Ass'n v. Lloyd, 1990 OK 14, 787 P.2d 855, 858; State ex rel. Okla. Bar Ass’n v. Stubblefield, 1988 OK 141, ¶ 7, 766 P.2d 979, 982; State ex rel. Okla. Bar Ass'n v. Cantrell, 1987 OK 17, ¶ 1, 734 P.2d 1292, 1293; State ex rel. Okla. Bar Ass'n v. Brandon, 1969 OK 28, ¶ 5, 450 P.2d 824, 827.

      . Schraeder, supra note 10, at ¶ 5 at 573; Cox, supra note 10, at ¶ 5 at 782; Eakin, supra note 10, at 648; Raskin, supra note 10 at ¶ 11, at 265. The court’s range of options in a disciplinary proceeding is set forth in RGDP Rule 6.15(a). Its terms provide:
      "(a) The Supreme Court may approve the Trial Panel’s findings of fact or make its own independent findings, impose discipline, dismiss the proceedings or take such other action as it deems appropriate.”

      . Schraeder, supra note 10, at ¶ 5 at 573; Cox, supra note 10, at ¶ 5 at 782; Eakin, supra note 10 at ¶ 9 af 648; Bolton, supra note 10, at ¶ 16 at 345; State ex rel. Okla. Bar Ass'n v. Perceful, 1990 OK 72, ¶ 5, 796 P.2d 627, 630.

      . Schraeder, supra note 10, at ¶ 5 at 573; Cox, supra note 10, at ¶ 5 at 782; Eakin, supra note 10, at ¶ 9 at 648.
      The terms of RGDP Rule 6.13 provide in part: "Within thirty (30) days after the conclusion of the hearing, the Trial Panel shall file with the Clerk of the Supreme Court a written report which shall contain the Trial Panel’s findings of fact on all pertinent issues and conclusions of law (including a recommendation as to discipline, if such is found to be indicated, and a recommendation as to whether the costs of the investigation, record and proceedings should be imposed on the respondent), and shall be accompanied by all pleadings, a transcript of the proceeding, and all exhibits offered.”

      . Schraeder, supra note 10, at ¶ 6 at 573; Cox, supra note 10, at V 6 at 783; Eakin, supra note 10, at ¶ 9 at 648; Bolton, supra note 10, at ¶ 16 at 345; Perceful, supra note 14, at ¶ 5 at 630.

      . Cox, supra note 10, at ¶ 8 at 783; State ex rel. Okla. Bar Ass'n v. Livshee, 1994 OK 12, ¶ 7, 870 P.2d 770, 774.

      . Gentry served as a deputy district attorney for Los Angeles county for five years and in the State Fund, a worker's compensation provider, for approximately two years. Except for one year, during which he did not practice law, the other twenty-two years he spent in private practice.

      . The complaints against Gentry for which the California State Bar initially disciplined him dealt with his failure to (1) communicate with clients and inform them of the status of their legal matters (2) complete legal services for which he was hired and (3) supervise office staff. The California charges were comprised of two incidents occurring in 1989.
      (a) Gentiy was hired to represent Babette L. Lee in an uncontested marital dissolution case. He failed to submit the judgment for entry by the court, and Lee was required to finalize the marriage dissolution without Gentry’s assistance. Gentry was charged with violating California’s Business and Professions Code Section 6068(m) — for failure to return phone calls and failure to inform Lee that the proceeding was not final — and Rule 3-110 of the California Rules of Professional Conduct — for failure to complete the legal services for which he was hired.
      (b) Earnestine San Nicolas employed Gentiy to represent her in a tort action, a slip-and-fall case. He was charged with violating California's Business and Professions Code Section 6068(m) — for failing to return the client’s phone calls — and with violating Rule 3-110(A) of the California Rules of Professional Conduct — for failing to supervise his office staff and failing to perform all services for which he had been hired.

      . The terms of probation required that Gentry (1) take and pass the California Professional Responsibility Examination (2) report quarterly to the probation department (3) complete a course on law office management (4) submit a law office management plan to his probation monitor and (5) complete twelve (12) hours of California MCLE. These requirements were to be completed within one year of the effective date of his probation.

      . Gentry testified that he might have completed one of the California-imposed Bar requirements before he surrendered his legal license. This latter decision was precipitated by depression and a failed suicide attempt for which respondent was hospitalized for a two-month recuperative period.

      . Gentiy testified before the PRT that forming this partnership was suggested to him by a member of the California State Bar's staff. (PRT transcript p. 44.)

      . Gentry testified before the PRT that he did not generally sign letters on the firm's stationary, but that he did so in this instance because he did not view it as a legal matter — he was simply requesting information from the insurance company on behalf of the client. (PRT transcript pp. 41-43.)

      . Respondent’s testimony before the PRT indicates (and the record does not contradict) that ultimately no charges were brought by the California State Bar or the district attorney against him for the unauthorized practice of law. (PRT transcript p. 18.) (Gentry’s partner was likewise investigated by the California State Bar, but no charges were lodged against him.) (Complainant's Exhibit 3.)

      . Respondent stipulates that his conduct violated ORPC Rule 8.4(c) only insofar as it constituted a "misrepresentation by omission” and not that his actions dealt with dishonesty, fraud, or deceit.

      . Schraeder, supra note 10, at V 27 at 578; Cox, supra note 10, at ¶ 11 at 784.

      . Gentry indicated that he has made application for reinstatement to the California Bar. (PRT transcript p. 44.) It is anticipated that unauthorized practice of law may be raised as an issue in that proceeding. (PRT transcript p. 54.)

      . Schraeder, supra note 10, at ¶ 32 at 579; Cox, supra note 10, at ¶ 11 at 784.

      . Schraeder, supra note 10, at ¶ 32 at 579; Cox, supra note 10, at ¶ 11 at 784.

      . Schraeder, supra note 10, at ¶ 32 at 579.

      . State ex rel. Oklahoma Bar Association v. Patterson, 2001 OK 51, 28 P.3d 551.

      . Patterson, supra note 31, at ¶ 30 at 560. In Patterson, respondent-lawyer failed to notify the OBA of his disbarment by the United State Court of Appeals for the Tenth Circuit. The PRT found the violation not to be a "deliberate effort at concealment” and noted mitigating circumstances that included an overwhelming workload due to a partner’s illness, respondent's daughter’s premature birth and the respondent-attorney’s full cooperation throughout the investigation. The court held the proper discipline to be imposed was a public reprimand with payment of costs.

      . While Gently testified that no charges were brought against him by the California Bar or the district attorney's office in response to the letter which precipitated this disciplinary proceeding, because he is in the process of applying for reinstatement to the California Bar, it is possible that California will revisit this issue.

      . The General Counsel is satisfied, and the PRT appears to agree, that respondent's actions were a result of his ill health and not a purposeful effort to conceal that discipline had been imposed upon him or that he resigned from the California Bar.

      . Patterson, supra note 31.


text:
    2003 OK CR 25
    Gilberto MARTINEZ, Petitioner, v. STATE of Oklahoma, Respondent.
    No. PCD-2002-972.
    Court of Criminal Appeals of Oklahoma.
    Nov. 13, 2003.
   ORDER GRANTING POST-CONVICTION RELIEF AND REMANDING TO THE DISTRICT COURT OF TILLMAN COUNTY FOR JURY DETERMINATION ON THE ISSUE OF MENTAL RETARDATION

¶ 1 Petitioner Gilberto Martinez was convicted of two counts of First Degree Murder in the District Court of Tillman County, Case No. CRF-87-48, and sentenced to death. He appealed his conviction to this Court. We reversed and remanded for a new trial, finding Petitioner had been denied the right of confrontation and had not received an instruction on the sentencing option of life without parole. Martinez v. State, 1995 OK CR 52, 904 P.2d 138.

¶ 2 Petitioner was retried in April of 1997. He was again convicted of two counts of First Degree Murder and sentenced to death. He appealed, and this Court affirmed his conviction and sentence. Martinez v. State, 1999 OK CR 33, 984 P.2d 813. Petitioner then filed his Application for Post-Conviction Relief, which we denied. Martinez v. State, 1999 OK CR 47, 992 P.2d 426.

¶ 3 Petitioner then filed his “Successor Application for Post^Conviction Relief’ with this Court raising issues relating to, among other things, the United States Supreme Court’s landmark decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) and this Court’s decision in Murphy v. State, 2002 OK CR 32, 54 P.3d 556. Petitioner was granted an evidentiary hearing for the purpose of resolving “all factual disputes raised” in his successor application relating solely to his claim of mental retardation.

¶4 Petitioner’ s evidentiary hearing was held on June 11, 2003 before the District Court of Tillman County, the Honorable David A. Barnett, Associate District Judge presiding. On July 1, 2003, Judge Barnett submitted his evidentiary hearing findings to this Court. Thereafter, the parties each submitted briefs outlining their respective positions on the issue at hand.

¶ 5 In Murphy, we set forth our three-prong definition of mental retardation. See 2002 OK CR 32, ¶ 31, 54 P.3d at 566-67. Along that line, we instructed the District Court in the instant case, upon remand and consistent with Murphy, to determine if Petitioner Martinez had raised “sufficient evidence at trial, on appeal, or at the evidentia-ry hearing of his mental retardation for the issue of mental retardation to be decided as a question of fact by a jury at a resentencing hearing.”

¶ 6 As Murphy explained, sufficient evidence means enough evidence to create a fact question on the issue of whether Petitioner is mentally retarded according to Murphy's definition. 2002 OK CR 32, ¶ 39, 54 P.3d at 569, n. 27. Furthermore, as Murphy v. State (Murphy II), 2003 OK CR 6, ¶ 12, 66 P.3d 456, 457, explained:

“sufficient evidence” is essentially the legal equivalent of a defendant making a prima facie showing of mental retardation with his or her evidence. Prima facie evidence has been defined as “[ejvidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient.”

With these understandings, we now turn to the instant case.

¶ 7 The District Court’s findings with respect to Petitioner Martinez’s evidentiary hearing and claim of mental retardation are thorough, well explained, and for the most part supported by the record. It is clear the trial court sifted through the evidence and made well-reasoned legal and factual determinations regarding the evidence presented and the three Murphy prongs.

¶ 8 The trial court found sufficient evidence existed in the record to create a question of fact concerning the first prong of the Murphy definition of mental retardation. However, the trial court found “insufficient evidence exists to create a question of fact” as to the second and third prongs of the mental retardation definition, i.e., whether mental retardation manifested before the age of eighteen and whether Petitioner has significant limitations in adaptive functioning.

¶ 9 Nevertheless, the straightforward question here is not whether the trial court’s findings are supported by the record. Rather, we simply ask whether or not a fact question has been raised regarding the issue of mental retardation under this record. Or, stated differently, has Petitioner made a pri-ma facie showing of mental retardation with his evidence — such a showing that, if not rebutted, would establish his claim.

¶ 10 We recognize that trial courts have been struggling to a certain degree to understand their role in these remanded evi-dentiary hearings. Accordingly, we want to be clear that the focal question in these remanded evidentiary hearings on mental retardation does not require adjudication to the extent provided by the District Court’s meticulous findings. The Murphy remanded evidentiary hearing is a fact-finding mission, not a mini-trial. It is an opportunity for those who have fairly raised the issue of mental retardation in previous proceedings to bring all their evidence together, and to supplement it where necessary. Where a fact question is found, a jury then steps in to determine the issue at hand.

¶ 11 Therefore, in most instances, when the State feels obligated to bring forth contradicting and rebutting evidence in a Murphy remanded evidentiary hearing, a question of fact has already been established.

¶ 12 That is the case here. We find sufficient admissible evidence exists in the record to create a fact question regarding all three prongs of the Murphy definition. Accordingly, this matter must be remanded to the District Court of Tillman County for a jury determination on the issue of mental retardation.

¶ 13 Regarding the remanded jury determination of the issue of mental retardation, the parties are hereby instructed to follow the procedures outlined by this Court in Lambert v. State, 2003 OK CR 11, 71 P.3d 30.

¶ 14 This case is therefore REMANDED to the District Court of Tillman County for a jury trial, unless waived, on the issue of Petitioner’s claim of mental retardation, in accordance with those procedures outlined in Lambert. The trial shall be held within one hundred twenty (120) days of this Order. The trial court shall file findings of fact and conclusions of law, including the jury’s determination in this Court within thirty (30) days from the conclusion of the jury proceeding. Thereafter, the parties may file a brief of no more than ten (10) pages concerning the issue of mental retardation within fifteen (15) days from the filing of the trial court’s findings of fact and conclusions of law.

¶ 15 IT IS SO ORDERED.

      . Appellant has also raised a Ring/Apprendi claim in his Successor Post-Conviction Application. However, that claim is denied, consistent with our recent decisions rejecting similar claims, including Murphy, 2002 OK CR 32, ¶ 24, 54 P.3d at 565.

      . Petitioner has submitted two IQ tests, showing a full scale IQ in the 62 to 63 range. One issue, which will surely be addressed at the remanded jury determination on mental retardation, is the possible impact of Defendant’s 1998 brain surgery, for Petitioner had a previous IQ test in which he scored in the borderline range. Mental retardation is not an after-acquired condition, but one present from birth. Nevertheless, Petitioner's recent IQ tests, an affidavit from Dr. Hand stating the recent testing was more reliable, and statements from three experts indicating their opinions that mental retardation was a longstanding problem that had manifested before the age of eighteen are sufficient to create questions of fact on the first two mental retardation prongs. Regarding the third prong, we find sufficient admissible evidence exists to create a fact question as to Petitioner’s adaptive functioning in the areas of communication, self-care, social/interpersonal skills, home living, academics, use of community resources, and work.


author: BENCH, Judge:

text:
    2003 UT App 357
    Laura BAKANOWSKI, Petitioner and Appellee, v. Paul F. BAKANOWSKI, Respondent and Appellant.
    No. 20020268-CA.
    Court of Appeals of Utah.
    Oct. 23, 2003.
    Frederick N. Green, Green & Berry, Sandy, for Appellant.
    David C. Blum, Crippen & Cline LC, and Monica Z. Kelley, Kelley & Kelley LLC, Salt Lake City, for Appellee.

      Before Judges BENCH, GREENWOOD, and ORME.
   OPINION

BENCH, Judge:

¶ 1 Paul F. Bakanowski (Husband) appeals from the alimony provisions in a decree of divorce, arguing that the trial court failed to make adequate findings and failed to apply the appropriate test in awarding alimony. Because we agree that the trial court abused its discretion in awarding alimony, we reverse and remand.

BACKGROUND

¶ 2 Husband and Laura Bakanowski (Wife) were married for approximately 33 years, during which time they were geographically separated from one another for four separate intervals while Wife pursued out-of-state employment. Over the course of the marriage, the parties lived frugally and remained free from debt. They acquired two houses, two automobiles, and a number of savings, retirement, and stock accounts. Wife petitioned for divorce, citing irreconcilable differences.

¶ 3 Before trial, Husband and Wife stipulated to the equal division of the marital estate, with each party receiving assets worth approximately $386,000. At trial, the only issues to be considered were alimony and attorney fees. The trial consisted of written and oral proffers of evidence, and oral arguments from counsel. Evidence presented at trial showed that, at the time of divorce, Wife was working outside of her field for an annual salary of $45,000. Husband was employed as a pharmacist, earning $73,500 annually.

¶ 4 The relevant alimony provisions in the decree of divorce are as follows:

14. The Petitioner seeks alimony of $1,000 per month based on an income-equalizing formula that will place her on substantially equal footing with the Respondent financially. While the Court finds the Petitioner’s monthly living expenses of $5,259 inflated, the Court also finds that without alimony, the Petitioner does not have the ability to fund ongoing retirement and investments at the rate of $1,000 per month as the Respondent now has, and the parties cannot have a similar standard of living without an income-equalizing alimony award. Rather than evaluating the Petitioner’s monthly budget, the Court finds that ... without alimony, the Petitioner could not enjoy a similar standard of living as the Respondent without spending down marital assets, where the Respondent would not have to do this. The [Respondent] does not dispute this. Moreover, it is well within the Court’s equitable powers to order alimony in an amount sufficient to equalize the parties[’] standards of living, and by doing so, both will have equal opportunity to preserve their marital assets or spend them down in a manner they alone might choose. Where this is a marriage of long duration and all other assets are divided evenly between the parties, income-equalization is appropriate.
15. The Petitioner has demonstrated a need for alimony in the amount of $1,000 per month, as the cost of equalizing her standard of living to that of the Respondent’s exceeds her income by $1,000 per month. The Respondent has the ability to pay alimony in the amount of $1,000 per month as demonstrated by his doing so while he has paid temporary alimony of $1,000 per month.

¶ 5 The trial court awarded Wife $1,000 per month in alimony “for a time equal to the duration of [the] marriage.” Husband appeals.

ISSUE AND STANDARD OF REVIEW

¶ 6 The only issue on appeal is whether the trial court abused its discretion in awarding alimony. Husband challenges the adequacy of the trial court’s findings of fact. He also argues that the trial court overstepped its bounds by awarding Wife what he refers to as “savings alimony,” contrary to established case law.

¶ 7 We review a trial court’s award of alimony for abuse of discretion. See Willey v. Willey, 951 P.2d 226, 230 (Utah 1997). “We will not disturb the trial court’s alimony award so long as the trial court exercises its discretion within the standards set by the appellate courts.” Haumont v. Haumont, 793 P.2d 421, 423 (Utah Ct.App.1990).

ANALYSIS

¶ 8 Three factors have long been considered, and must always be considered, before awarding alimony: (1) the financial needs and condition of the recipient spouse; (2) the ability of the recipient spouse to provide a sufficient income for himself or herself; and (3) the ability of the payor spouse to provide support. See Davis v. Davis, 749 P.2d 647, 649 (Utah 1988) (citing Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985)).

¶ 9 “[I]n considering these factors, the trial court is required to make adequate factual findings on all material issues, unless the facts in the record are ‘clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.’ ” Haumont v. Haumont, 793 P.2d 421, 424 (Utah Ct.App.1990) (citations omitted); see also Howell v. Howell, 806 P.2d 1209, 1213 (Utah Ct.App.1991) (finding reversible error where trial court failed to make findings on all material issues unless the “pertinent facts in the record [were] ‘clear, uncontroverted, and capable of supporting only a finding in favor of the judgment’ ” (citation omitted)).

¶ 10 “If the trial court considers these factors in setting an award of alimony, we will not disturb its award absent a showing that such a serious inequity has resulted as to manifest a clear abuse of discretion.” Haumont, 793 P.2d at 424. However, where a trial court fails to enter specific findings on the needs and condition of the recipient spouse, making effective review of the alimony award impossible, that omission is an abuse of discretion. See Burt v. Burt, 799 P.2d 1166, 1170 (Utah Ct.App.1990).

¶ 11 Here, the trial court abused its discretion by failing to enter specific findings on Wife’s financial needs and condition, and the pertinent facts in the record are not “ ‘clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.’” Howell, 806 P.2d at 1213 (citation omitted); Haumont, 793 P.2d at 424 (citations omitted). The trial court found Wife’s “monthly living expenses of $5,259 inflated.” “Rather than evaluating the Petitioner’s monthly budget,” the court determined that, without $1,000 per month in alimony, Wife would not enjoy a similar standard of living as Husband.

¶ 12 The trial court concluded that Wife “has demonstrated a need for alimony in the amount of $1,000 per month, as the cpst of equalizing her standard of living to that of [Husband’s].” As explained in Martinez v. Martinez, 818 P.2d 538 (Utah 1991), “[Usually the needs of the spouses are assessed in light of the standard of living they had during marriage.” Id. at 542. Here, the trial court never determined Wife’s needs based on the parties’ historical standard of living. Instead, the trial court engaged in an effort to simply equalize income. In attempting to equalize the parties’ income rather than going through the traditional needs analysis, the trial court abused its discretion. See Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct.App.1994) (holding that trial court “should not have awarded plaintiff more than her established needs required, regardless of defendant’s ability to pay this excess amount” and remanding “for a reassessment of the alimony award in accordance with the precept that the spouse’s demonstrated need must, under Jones, constitute the maximum permissible alimony award”).

¶ 13 The absence of findings of fact “is a fundamental defect that makes it impossible to review the issues that were briefed without invading the trial court’s fact-finding domain.” Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987). “The findings of fact must show that the court’s judgment or decree ‘follows logically from, and is supported by, the evidence.’ ” Id. (quoting Smith v. Smith, 726 P.2d 423, 426 (Utah 1986)). Here, we cannot say that the court's decree “follows logically from, and is supported by, the evidence.” Smith, 726 P.2d at 426. This is particularly true when the trial court found Wife’s monthly living expenses to be inflated, and then explicitly avoided evaluating her monthly needs and her independent ability to meet those needs. We therefore remand the case so the trial court may enter appropriate findings.

¶ 14 Husband argues that the trial court cannot award Wife what he calls “savings alimony” — alimony used to fund post-divorce savings, investment, or retirement accounts. Savings alimony, Husband claims, “is not a component of [Wife’s] ‘needs’ or the standard of living enjoyed during the marriage” and therefore cannot be part of the alimony determination.

¶ 15 Because this issue is certain to resurface on remand and because the parties cite the inclusion of savings alimony as a recurring topic in alimony disputes, we will address whether savings/retirement deposits may ever be considered as part of the needs analysis in an alimony determination. See Bair v. Axiom Design, L.L.C., 2001 UT 20,¶ 22, 20 P.3d 388 (an appellate court has a duty to point out, and address, issues which may become material on remand even where a separate issue was dispositive to the resolution of the appeal).

¶ 16 While the x-ecipient spouse’s need to fund post-divorce savings, investment, or retirement accounts may not ordinarily be factored into an alimony determination, we cannot say that the ability to fund such post-divorce accounts may never be taken into account as part of a needs analysis. The ci'itieal question is whether funds for post-divorce savings, investment, and l-etirement accounts are necessary because contributing to such accounts was standard practice during the marriage and helped to form the couple’s marital standai'd of living. The inclusion of savings deposits as part of the needs analysis in an alimony determination is allowed only under such circumstances. We have previously so held. See, e.g., Kemp v. Kemp, 2001 UT App 157, 2001 WL 522413. If, on remand, the trial court determines that savings deposits should be taken into account as part of the needs analysis, then the court’s findings must be even more detailed than those in a standard needs analysis because allowing savings to be taken into account is the exception, rather than the l'ule. See id.; see also Rudman v. Rudman, 812 P.2d 73, 76 (Utah Ct.App.1991) (stating “it is essential that the reviewing court clearly undei'stand the findings on which the trial court bases its conclusions”).

CONCLUSION

¶ 17 The ti’ial coui-t abused its discretion by failing to make adequate findings in awarding alimony. We therefore remand for further findings on the financial needs and condition of Wife, consistent with this opinion.

¶ 18 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, Judges.

      . Wife also argues that she is entitled to costs and attorney fees on appeal. However, given our disposition of this appeal, Wife is not entitled to costs and attorney fees. Cf. Baker v. Baker, 866 P.2d 540, 547 (Utah Ct.App.1993) (supporting the proposition that when fees in a divorce case have been awarded to the prevailing party below who also prevails on appeal, fees will be awarded on appeal).

      . The 1995 amendment to Utah Code Ann. § 30-3-5 added a fourth factor — the length of the marriage. A later amendment, effective in 1999, added three additional factors. We refer only to the three original factors specified in Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985), as they are the only factors relevant to the disposition of this appeal.

      . In addition to these, numerous other cases have required findings under the Jones factors. See, e.g., Martinez v. Martinez, 818 P.2d 538, 542 (Utah 1991); Gardner v. Gardner, 748 P.2d 1076, 1081-82 (Utah 1988); Paffel v. Paffel, 732 P.2d 96, 100-01 (Utah 1986); Olson v. Olson, 704 P.2d 564, 566-67 (Utah 1985); Kelley v. Kelley, 2000 UT App 236,¶ 26, 9 P.3d 171; Moon v. Moon, 1999 UT App 12,¶ 29, 973 P.2d 431; Childs v. Childs, 967 P.2d 942, 946 (Utah Ct.App.1998); Breinholt v. Breinholt, 905 P.2d 877, 879-80 (Utah Ct.App.1995); Cox v. Cox, 877 P.2d 1262, 1267 (Utah Ct.App.1994); Rosendahl v. Rosendahl, 876 P.2d 870, 874 (Utah Ct.App.1994); Schaumberg v. Schaumberg, 875 P.2d 598, 602 (Utah Ct.App.1994); Willey v. Willey, 866 P.2d 547, 550 (Utah Ct.App.1993); Howell v. Howell, 806 P.2d 1209, 1212 (Utah Ct.App.1991); Bridenbaugh v. Bridenbaugh, 786 P.2d 241, 242 (Utah Ct.App.1990); Burt v. Burt, 799 P.2d 1166, 1170 (Utah Ct.App.1990); Haumont v. Haumont, 793 P.2d 421, 423 (Utah Ct.App.1990); Petersen v. Petersen, 737 P.2d 237, 242 (Utah Ct.App.1987).


author: JACKSON, Presiding Judge:

text:
    2003 UT App 359
    STATE of Utah, Plaintiff and Appellee, v. Cris Rudger ATKIN, Defendant and Appellant.
    No. 20020325-CA.
    Court of Appeals of Utah.
    Oct. 23, 2003.

      Margaret P. Lindsay, Aldrich Nelson Weight & Esplin, and Patrick V. Lindsay, Provo, for Appellant.
    Mark L. Shurtleff, Attorney Generals Office, and Christine Soltis, Assistant Attorney General, Salt Lake City, for Appellee.
    Before JACKSON, P.J., BILLINGS, Associate Presiding Judge, and THORNE, J.
   OPINION-

JACKSON, Presiding Judge:

¶ 1 Cris Rudger Atkin (Atkin) appeals his convictions of one count of Aggravated Sexual Abuse of a Child and one count of Sexual Exploitation of a Minor. We affirm.

BACKGROUND

¶ 2 In 1997, Atkin and his wife, Stephanie Curtis (Curtis), divorced. Pursuant to the divorce decree, Curtis was granted custody of the couple’s three children, while Atkin was granted visitation rights that called for the children to spend every other weekend with him.

¶ 3 After the divorce, Atkin moved into an older home in Provo that had been divided into two apartments. Atkin lived in the basement apartment, with other tenants occupying the apartment on the main level of the home.

¶ 4 Atkin’s apartment was accessible from a side door to the house that was located off of the driveway. Upon entering the main door to his apartment, there were two sets of stairs. The first led up approximately four to five stairs to a small landing. Due to the construction of the home, the landing was actually located on the main level. The landing was separated from the upstairs apartment, however, by a locked door. Atkin used the landing as his own personal office. He had a desk there and a computer. This computer had “buddy cables” running from it that connected it to a second computer that was located in the basement portion of At-kin’s apartment.

¶ 5 The basement portion of Atkin’s apartment was accessible via a second stairway that led directly down from the outside door. There was no partition or inner doorway cutting off access to the basement portion of Atkin’s apartment from the stairway itself, thus allowing the buddy cables connecting Atkin’s two computers to run up the two stairways without obstruction.

¶ 6 Atkin’s bedroom was located in the basement portion of his apartment. When the three children would come to visit, they slept in a converted storage room that was separated from his bedroom by a wooden door. Given that there were only two mattresses in the room, D.A., Atkin’s youngest daughter, slept on an air mattress on the floor of the room. The air mattress would often deflate in the middle of the night, however, so it was somewhat common for D.A. to instead sleep on the living room couch or in-Atkin’s bed.

¶ 7 On October 2, 2000, Curtis found a note on the pillow of her bed. The note was in D.A.’s handwriting and stated that “[m]y dad is sexually harassing me.” The note was signed by D.A. D.A. was nine-years old at the time. A few days later, D.A. handed her mother a second note. This note contained several very specific allegations of sexual abuse by Atkin. Additionally, the note alleged that Atkin was showing D.A. pictures of people engaged in sexual activity.' At this point, Curtis contacted the police.

¶ 8 On October 13, 2000, the police obtained a search warrant authorizing them to search Atkin’s “residence.” After first listing the street address to the home, the search warrant identified Atkin’s specific apartment as the object of the search by stating that “[t]he apartment of interest is in the basement.” The warrant further described the side door that led into Atkin’s apartment and noted the apartment number which was located above his door.

¶ 9 Under the terms of the warrant, the officers were authorized to seize, among other things, “video tapes, photographic or other images, computers and computer systems, computer hardware including peripherals and cables, computer software stored on any media such as floppy disks or CD' ROMs, [and] removable media such as external hard drives or data cartridges.” Pursuant to this warrant, officers seized the two computers from Atkin’s apartment that had been linked together by the buddy cable system."

¶ 10 A subsequent search by computer experts retained by the Provo City police department revealed nothing incriminating from the computer that had been located in the basement portion of the apartment. When searching the computer that had been located on the landing,' however, officers found two video clips showing explicit sexual . activity. These clips appeared to involve minors. Officers also found various names of files that had been on the computer. Though the actual content of these files had been deleted through use of a cleansing program, the names of the files had remained on the computer’s hard drive. Many of these file names were sexually suggestive in nature.

¶ 11 On October 31, 2000, Atkin was charged with one count of Aggravated Sexual Abuse of a Child and one count of Sexual Exploitation of a Minor. Prior to trial, At-kin moved to suppress the evidence that had been obtained from the landing. Atkin argued that, insofar as the warrant only authorized search of the “basement” apartment, the officers’ search of the upstairs landing had violated the scope of the warrant. This motion was denied.

¶ 12 At trial, D.A. testified that Atkin had sexually abused her and that Atkin had shown her pornographic images and pornographic videos on the upstairs computer. To support the charge involving child pornography, the prosecution attempted to introduce a listing of the file names that had been found on the upstairs computer. Responding to a motion by Atkin, however, the trial court ruled that reference to the file names was inadmissible on two grounds. The court first ruled that, without evidence of the files’ content, there would be a lack of foundation from which the jury could determine whether the files actually contained child pornography, or whether they instead merely contained legally permissible adult pornography. Second, the court ruled that the admission of these explicit file names would prove more prejudicial than probative.

¶ 13 The court did allow the prosecution to present the two video clips that had been retrieved from the upstairs computer to the jury. In support of its contention that the video clips contained child pornography, the prosecution presented expert testimony indicating that, within “a reasonable degree of medical certainty,” it could be established that the females engaged in sexual activity on the video clips were under the age of eighteen.

¶ 14 When Atkin took the stand for his direct examination, he denied having possessed child pornography on his computer. He specifically stated that he had not downloaded the two video clips that were found on his computer and that D.A.’s testimony that he had shown her pornography on the computer was false. On cross-examination, the prosecutor repeatedly questioned Atkin about these denials.

¶ 15 At one point during this cross-examination, Atkin stated that “[m]y computer had no porn, to my knowledge, on it.” In response, the prosecutor asked: “Oh? Isn’t it true that you actually have an account with ‘XXLteens.com’?” Atkin denied having an account with the website, and the prosecutor pressed the point. After a few questions on the subject, Atkin’s counsel objected. At-kin’s counsel argued that, absent some foundation as to the actual content of the site, reference to the site should be prohibited. Specifically, Atkin’s counsel again contended that, without some specific evidence showing that the site contained child pornography, the jurors might impermissibly draw inferences from alleged visitations to a site that could merely have contained legal images of adult pornography. In this manner, Atkin’s counsel argued that the questioning not only violated the rules of evidence, but also the judge’s prior order excluding the list of file names found on Atkin’s computer. Atkin’s counsel accordingly moved for a mistrial.

¶ 16 The court denied Atkin’s request for a mistrial. The court ruled that the earlier ruling had only covered the listing of file names found on the computer, and that it accordingly did not apply to the questioning regarding the “XXLteens.com” website. Further, while acknowledging that the prosecution had not laid any foundation that would establish whether the “XXLteens.com” website contained child pornography, or whether it instead merely contained adult pornography, the court nevertheless ruled that Atkin had opened the door for the questioning by denying that his computer possessed any pornography of any kind. Thus, the court ruled that the questioning was proper as impeachment of his prior denials. However, given the concerns regarding the lack of foundation concerning the site’s actual content, the prosecution agreed not to proceed further with the questioning regarding the “XXLteens.com” website.

¶ 17 On January 4, 2002, the jury convicted Atkin on both counts. Atkin now appeals. Atkin first argues that the search of the upstairs landing exceeded the scope of the search warrant and that the evidence obtained therefrom should have been excluded. Second, Atkin argues that the questioning regarding the “XXLteens.com” website was an impermissible use of character evidence and that the trial court’s refusal to disallow the questioning warranted a mistrial.

ISSUES AND STANDARDS OF REVIEW

¶ 18 “We review for correctness the trial court’s legal conclusions on motions to suppress. We will overturn the trial court’s underlying factual findings only if those findings are clearly erroneous.” State v. South, 932 P.2d 622, 624 (Utah Ct.App.1997).

¶ 19 “A trial court’s denial of a motion for a mistrial will not be reversed absent an abuse of discretion.” State v. Wach, 2001 UT 35,¶ 45, 24 P.3d 948.

ANALYSIS

I. Atkin’s Motion to Suppress

¶ 20 Atkin first claims that the evidence obtained from the upstairs landing should have been excluded. We disagree.

¶ 21 The Fourth Amendment to the United States Constitution states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched,, and the persons or things to be seized.”. (Emphasis added.) The Utah State Constitution contains a similar protection. See Utah State Const, art. I, § 14.

¶ 22 The protections afforded by the “particularity requirement” are twofold. First, the requirement mandates that magistrates describe with specificity the items and places that can be searched under the auspices of a search warrant. Interpreting this requirement, the Utah Supreme Court has held that a warrant is sufficiently particular “if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.” State v. Anderson, 701 P.2d 1099, 1102 (Utah 1985) (emphasis in original) (quoting Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925)); see also State v. McIntire, 768 P.2d 970, 972 (Utah Ct.App.1989). Second, the particularity requirement mandates that officers acting pursuant to a warrant confine their search to those areas and objects that have been specifically identified in the warrant. “A valid warrant authorizes the police to search when and where they otherwise would have no right, and consequently, the terms of the warrant dictate the scope of the officers’ authority.” State v. Dunn, 850 P.2d 1201, 1217 (Utah 1993). Thus, “the Fourth Amendment confines an officer executing a search warrant strictly within the bounds set by the warrant.” Bivens v. Six Unknown Named Agents, 403 U.S. 388, 394 n. 7, 91 S.Ct. 1999, 2004 n. 7, 29 L.Ed.2d 619 (1971).

¶ 23 Atkin does not argue that the warrant was insufficiently particular; instead, Atkin argues that the warrant’s authorization for a search of “the apartment ... [that] is in the basement” did not authorize a search of the ' landing, and that the evidence seized therefrom should have been suppressed. We disagree. ;■

¶ 24 In State v. Gallegos, the Utah Supreme Court held that “the line between what is and what is not sufficiently particular must be drawn with a view to accomplishment of the constitutional purpose and necessarily varies with the circumstances and with the nature of the property to be seized.” 712 P.2d 207, 209 (Utah 1985). The constitutional purposes behind the particularity requirement are well established. “A central purpose” of the warrant clause “is to protect against ‘general, exploratory rummaging in a person’s belongings.’ ” Dunn, 850 P.2d at 1217 (emphasis added) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971)). The particularity requirement is one of the chief mechanisms by which this purpose is achieved. Thus, the

particularity requirement is intended to prohibit general warrants which give inferior officials roving commissions to search where they please and seize what they please — such as the infamous writs of assistance under which British customs officials, in the years preceding the American Revolution, received the authority to search where they pleased for goods imported in violation of British tax laws, an outrage that was fresh in the Founding Fathers’ minds when they adopted the Bill of Rights.

John E. Theuman, Sufficiency, Under Federal Constitution’s Fourth Amendment, of Description in Search Warrant of Place to be Searched or of Person or Thing to be Seized — Supreme Court Cases, 94 L.Ed.2d 813, 814 (1999); see also Larry EchoHawk and Paul EchoHawk, Curing a Search Warrant that Fails to Particularly Describe the Place to be Searched, 35 Idaho L.Rev. 1, 4 (1998) (stating that “the particularity requirement ensures that a search will be limited to its justifications and will not become the unbridled exploratory search the Framers sought to prohibit”).

¶ 25 Considering the particular facts of this case, we do not think that the officers’ decisions to search the landing and then to seize the computer that was located on the landing constituted the sort of general, exploratory search against which the particularity requirement was designed to protect. Under the terms of the warrant, the officers had the undisputed authority to search for computer equipment that might contain evidence of child pornography that could be found in Atkin’s basement apartment. Though it is clear that the landing was located on the ground level, it is also clear that the house was divided in such a manner so as to render that landing part of the basement apartment.

¶ 26 The landing in question was accessible through two different doorways. The first was the doorway located directly off of the landing; testimony at the suppression hearing and at trial indicated that that door was locked, and the trial court accordingly found that the landing was hot “accessible from the upstairs apartment at the time the search warrant was executed.” The only other doorway leading to the landing was the doorway off of the side of the house that served as the entryway to Atkin’s apartment. From this doorway, one had unobstructed access to both the stairway leading up to the landing and to the stairway leading, down to the basement portion of Atkin’s apartment. There were no dividers or doorways separating these two stairways, and there was nothing at the bottom of the basement stairway closing off Atkin’s apartment from the stairs above.

¶27 Given the nature of the division between the two apartments, and given the presence of the buddy cables running up to the landing -from Atkin’s basement living room, the trial court concluded that the landing and the stairway leading up to the landing constituted “an integral part of the basement apartment” and that the search warrant authorized the - officers to search and seize the items contained therein. We cannot say that this finding was clearly erroneous and we therefore uphold that factual finding.

¶28 In accordance with our decision regarding the trial court’s factual finding, we further hold that the trial court was correct in determining that this search was not the sort of general, exploratory search that the particularity requirement was designed to prohibit. Here, there was no discretionary, unrestrained rummaging through unauthorized belongings or, dwellings. Instead, the officers appropriately confined their search to those places and items that could reasonably have been identified as a part of Atkin’s basement apartment. The trial court was therefore correct in ruling that the search of the landing was authorized under the terms of the search warrant.

¶29 Accordingly, we hold that the trial court did not err when it denied Atkin’s motion to suppress items seized on the upstairs landing.

II. Atkin’s Motion for a Mistrial

¶ 30 Atkin next argues that the trial court erred when it denied his motion for a mistrial after the prosecution had questioned him regarding the “XXLteens.com” website. Atkin argues that this questioning was an impermissible use of character evidence that unfairly tainted the jury, thereby warranting a mistrial. While we agree with Atkin that the questioning was improper, we disagree with him that its effect was such so as to require a mistrial.

¶ 31 Rule 404 of the Utah Rules of Evidence states that “[ejvidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” In State v. Saunders, the Utah Supreme Court stated that it is “fundamental in our law that a person may be convicted criminally only for his acts, not for his general character. That principle is violated if a conviction is based on an inference that conviction is justified because of the defendant’s criminal character or propensity to commit bad acts.” 1999 UT 59,¶ 15, 992 P.2d 951. The rulés against improper use of character evidence thus work “to ensure that a defendant is only convicted because he committed the charged offense and not because the jury is convinced of his cumulative bad behavior.” State v. Houskeeper, 2002 UT 118,¶ 24, 62 P.3d 444.

¶ 32 We agree with Atkin that the questioning was improper. In its earlier rulings, the trial court correctly noted the very real danger that exists in child pornography prosecutions, whereby evidence that the defendant has consumed adult pornography might impermissibly resonate with a jury that is tasked only with determining whether the defendant had possessed child pornography. Absent some specific evidence of the use or possession of child pornography, general questioning regarding adult pornography is clearly unwarranted in such a prosecution. Here, where there was no foundation of any kind regarding the contents of the “XXLteens.com” website, and where reference to the name of the website alone could reasonably have suggested to the minds of the jurors that the site contained images of child pornography, we hold that the trial court’s decision to allow the questioning of Atkin regarding the site was therefore improper.

¶ 33 The trial court justified its decision to allow the prosecution to question Atkin regarding “XXLteens.com” by concluding that Atkin had opened the door for the questioning. We disagree with this conclusion. In our view, this case is closely analogous to the situation presented to the Utah Supreme Court in State v. Saunders. See generally 1999 UT 59, 992 P.2d 951. In Satmders, the defendant was charged with sexually abusing his young daughter. See id. at ¶ 4. Though there was some evidence indicating that the abuse may have extended over a period of two years, the actual charges that were filed against the defendant only included allegations relating to incidents within a particular time frame. See id. During the prosecution’s case in chief, however, the prosecutor elicited testimony from the victim regarding instances of abuse that had occurred outside the time frame covered in the information. See id. at ¶ 6. On direct examination of the defendant, the defendant openly discussed those pre-information allegations, therein explaining that the alleged abuse was nothing more than him applying salve to treat his daughter’s rash. See id. The prosecutor challenged the veracity of Saunders’ explanation on cross-examination, and then again referred to the pre-information instances in the closing statement. See id. at ¶¶ 5-6. On appeal, the defendant argued that the references to the pre-information allegations of abuse were unlawful uses of character evidence. See id. at ¶ 8. The prosecution responded, however, by arguing that the defendant had “opened the door” to this evidence by testifying openly about the alleged instances in his own direct examination. See id. at ¶ 9.

¶ 34 The Utah Supreme Court unequivocally agreed with Saunders, holding that “it was not defendant who ‘opened the door’ to that evidence but that the State did so by adducing such evidence through several witnesses, beginning long before Saunders took the stand.” Id. at ¶ 21. The Court thus held that the State “effectively forced defendant to respond in his direct examination regarding his conduct in that period.” Id. at ¶ 24. Accordingly, “Saunders clearly was entitled to rebut the charges that he had abused B.C. before the period charged without waiving his right to attack” the admissibility of evidence regarding the pre-indictment incidents. Id.

¶ 35 Here, the prosecution’s case in chief against Atkin produced witnesses and evidence indicating that Atkin had pornography on his computer. Under Saunders, Atkin was clearly entitled to rebut those charges in his testimony without opening the door for any evidentiary improprieties. The prosecution’s efforts to use his affirmative rebuttal as a means of opening the door for further evidence was improper, and the trial court should have ruled that the questioning was impermissible.

¶ 36 However, our conclusion that the questioning was improper does not end the inquiry. A trial court’s ruling on a motion for a mistrial is only overturned on a showing of an abuse of discretion. See State v. Wach, 2001 UT 35,¶45, 24 P.3d 948. “ ‘ “Unless a review of the record shows that the court’s decision is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial, we will not find that the court’s decision was an abuse of discretion.” ’ ” State v. Madsen, 2002 UT App 345,¶ 12, 57 P.3d 1134 (quoting State v. Decorso, 1999 UT 57,¶ 38, 993 P.2d 837 (quoting State v. Robertson, 932 P.2d 1219, 1231 (Utah 1997))).

¶ 37 Here, the prosecution’s reference to the “XXLteens.com” website was not the only evidence presented regarding Atkin’s possession of child pornography. Instead, the prosecution presented two video clips that had been found on the upstairs computer showing images of explicit sexual behavior, and the prosecution further presented expert testimony indicating that the females in the video clips were minors. Atkin does not challenge the trial court’s decision to admit this evidence. Given the impact that the presentation of these video clips undeniably had on the jury, we cannot say that the effect of the isolated questioning regarding Atkin’s alleged visits to “XXLteens.com” was a substantial or even marginal factor in the jury’s decision to convict him on charges of possessing child pornography. This is particularly so here, where the prosecution agreed to abstain from presenting further evidence regarding that website to the jury in its questioning or in its closing statement. Accordingly, we hold that Atkin’s right to a fair trial was not prejudiced by the questioning, and that the trial court did not err in denying Atkin’s motion for a mistrial.

CONCLUSION

If 38 We therefore hold that the officers did not exceed the scope of the search warrant when they searched and seized items from the landing portion of Atkin’s apartment. We further hold that though the references by the prosecutor to “XXLteens.com” were improper, the cumulative effect of those isolated references does not warrant a mistrial.

¶ 39 Accordingly, we affirm.

¶ 40 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and WILLIAM A. THORNE JR., Judge.

      . Utah Code Ann. § 76-5-404.1(1) (Í.999) states, in relevant part, that a person is guilty of Sexual Abuse of a Child if:
      the actor touches the anus, buttocks,, or genitalia of any child, the breast of a female child younger than 14 years of age, or otherwise takes indecent liberties with a child ... with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person regardless of the sex of any participant.
      Under § 76-5-404.1(3), the offense is considered to be Aggravated Sexual Abuse of a Child if:
      (d) the accused used, showed, or displayed pornography ... during the course of the offense; ...

      (h) the offense was committed by a person who occupied a position of special trust in relation to the victim; "position of special trust” means that position occupied by a person in a position of authority, who, by reason of that position is able to exercise undue influence over the victim, and includes ... [a] natural parent....

      . Utah Code Ann. § 76-5a-3(l)(a) (1999) states that a person is guilty of Sexual Exploitation of a Minor if:
      he knowingly produces, distributes, possesses, or possesses with intent to distribute, material or a live performance depicting a nude or partially nude minor for the purpose of sexual arousal of any person....


text:
    2003 UT App 360
    BIO-THRUST, INC., a dissolved Utah corporation; and John Michael Coombs, a shareholder thereof, Petitioners and Appellants, v. DIVISION OF CORPORATIONS, a sub-agency of the Department of Commerce, an agency of the State of Utah; Kathy Berg, its director; and John and Jane Does I-XX, employees and former employees and agents of the Division of Corporations, Respondents and Appellees.
    No. 20020867-CA.
    Court of Appeals of Utah.
    Oct. 23, 2003.

      John Michael Coombs, Mabey & Coombs, • Salt Lake City, for Appellants.
    Mark L. Shurtleff and Alain C. Balmanno, Assistant Attorney General, Salt Lake City, for Appellees.
    Before JACKSON, P.J., BILLINGS, Associate Presiding Judge, and THORNE, J.
   OPINION

JACKSON, Presiding Judge:

¶ 1 Bio-Thrust, Inc. (Bio-Thrust) and John Michael Coombs (Coombs) appeal an order from the district court granting the Division of Corporations’s (the Division) motion to dismiss. In its ruling, the district court held that neither Bio-Thrust nor Coombs had standing to contest Bio-Thrust’s 1991 involuntary dissolution. We affirm.

BACKGROUND

¶ 2 Bio-Thrust was incorporated in 1981. In 1990, Bio-Thrust failed to file an annual report as required by Utah law. Based on this failure, the Division declared Bio-Thrust delinquent on August 1, 1990. According to the Division, it notified Bio-Thrust of the delinquency determination by letter. The Division also alleges that this letter informed Bio-Thrust that its corporate status would be suspended if the annual report was not filed within thirty days. Due to Bio-Thrust’s failure to respond to this letter or to file the required report, Bio-Thrust’s corporate status was suspended on September 1, 1990. According to the Division, a letter was then sent notifying Bio-Thrust that, pursuant to the terms of the Utah Code, its corporate status would be dissolved if it did not file the required report within 120 days. Bio-Thrust again failed to respond or to file the required report. Accordingly, on January 1, 1991, the Division dissolved Bio-Thrust’s corporate status. According to the Division, it notified Bio-Thrust of the dissolution by letter.

¶3 According to the terms of the Utah Code provisions in effect at the time of the dissolution, Bio-Thrust had one year from the date of dissolution in which it could seek reinstatement. See Utah Code Ann. § 16-10-88.2(5) (1991). Bio-Thrust took no action during that year to either file the required report or to appeal to the Division for reinstatement.

¶ 4 On June 29, 2001, a full ten years after its dissolution, Bio-Thrust petitioned the Division for a reinstatement of its corporate status. The Division denied this petition. Bio-Thrust then appealed the denial of its petition to the Third District Court. Bio-Thrust argued that the Division’s failure to keep copies of the notices that had been sent to Bio-Thrust in 1990 rendered the subsequent dissolution a nullity. Bio-Thrust further alleged that the dissolution statute was unconstitutional on its face and as applied. Bio-Thrust was joined as the named petitioner in the action by John Michael Coombs, a Bio-Thrust shareholder who had been appointed as its president several years after the dissolution.

¶ 5 In response, the Division filed a motion to dismiss, arguing that neither Bio-Thrust nor Coombs had standing to contest the decade-old dissolution order. The Division supported its contention that Bio-Thrust had actually been dissolved by reference to an internal computer record kept by the Division indicating that the required notices had been timely sent. The district court accepted the Division’s offer of proof regarding the dissolution, and accordingly granted the Division’s motion to dismiss the claims for a lack of standing.

¶ 6 Bio-Thrust and Coombs appeal, arguing (i) that the dissolution statute was unconstitutional on its face and as applied, and (ii) that the Division’s failure to keep copies of the notices of delinquency, suspension, and dissolution renders the Division’s subsequent efforts to enforce the dissolution a nullity.

ANALYSIS

¶ 7 A court’s determination that a party lacks standing is a legal determination that we review without deference. See Salt Lake City Corp. v. Property Tax Div., 1999 UT 41,¶ 9, 979 P.2d 346. Further, the issue of whether a party had standing is a “thz*esh-old” determination that must be addressed first. Id.

I. Bio-Thrust’s Standing

¶ 8 In Holman v. Callister, Duncan & Nebeker, we noted that, “[ujnder the common law, a corporation ceased to exist at dissolution.” 905 P.2d 895, 897 (Utah Ct.App.1995). “For that reason, a dissolved corporation was ‘incapable of maintaining an action; and all such actions pending at the time of dissolution abate, in the absence of a statute to the contrary.’ ” Id. at 898 (citation omitted) (emphasis added). In accordance with this well-established principle of law, the Utah Code provision that was in effect at the time of Bio-Thrust’s involuntary dissolution did allow dissolved corporations one limited exception to the general rule of legal incapacity. See Utah Code Ann. § 16-10-88.2(4) (1991) (“No corporation so dissolved may be revived under this chapter or Section 59-7-157, except as set forth in Subsection (5).’’ (Emphasis added.)). Under the terms of section 16-10-88.2(5), “[a]ny corporation which has been dissolved under this section may, ivithin one year from the date of dissolution, be reinstated upon application and payment of all past due taxes, penalties, and reinstatement fees.” (Emphasis added.)

¶ 9 According to the internal records kept by the Division, Bio-Thrust was dissolved on January 1, 1991. Thus, Bio-Thrust’s legal capacity to challenge its dissolution expired on January 1, 1992. Given that the present action was not filed until April 17, 2002, we hold that the trial court was correct in dismissing Bio-Thrust’s petition based on a lack of standing.

II. Coombs’s Standing

¶ 10 In Stocks v. United States Fidelity & Guaranty Co., we held that “ ‘even though a shareholder owns all, or practically all, of the stock in a corporation, such a fact does not authorize him to sue as an individual for a wrong done by a third party to the corporation.’ ” 2000 UT App 139,¶ 11, 3 P.3d 722 (quoting Norman v. Murray First Thrift & Loan Co., 596 P.2d 1028, 1031-32 (Utah 1979)). However, we also recognized a “narrow exception” to this rule, whereby an individual stockholder may sue a third party if the third party’s actions “ ‘damaged the shareholder as an individual rather than a shareholder.’ Id. (citation omitted) (emphasis in original). Such cases necessarily arise in situations where the alleged wrongdoer violates a duty that is “ ‘owed directly to the shareholder.’ ” Id. (citation omitted).

¶ 11 Here, Coombs’s arguments that he has individual standing to petition the court to overturn the involuntary dissolution order are unavailing. Coombs has not identified any harm that he has suffered that is not directly derived from his status as a shareholder. Instead, Coombs has simply identified the effects that Bio-Thrust’s dissolution has had on its shareholders, and has then attempted to characterize those harms as direct harms that he has suffered personally. Such a characterization, however, does not comport with the realities of corporate law.

¶ 12 In DLB Collection Trust v. Harris, we held that a shareholder’s losses, allegedly-suffered as a result of another shareholder’s mismanagement of corporate assets, were in fact corporate injuries that were not “distinct” to the individual shareholder. 893 P.2d 593, 598 (Utah Ct.App.1995). Thus, “it is the corporation that has suffered direct injury, and any damage resulting to the stockholder is merely indirect.” Id. at 597. Here, Coombs has not suffered any injury that was direct to his own person, property, or personal legal status, nor has he incurred a loss that would have been suffered irrespective of his status as a shareholder. As in DLB Collection Trust, Coombs simply complains of an injury that was direct to Bio-Thrust as a corporation, with any damage that impacted him as a stockholder merely occurring as an indirect byproduct of that corporate harm.

¶ 13 Thus, we do not think that the “narrow exception” that was recognized in Stocks, see 2000 UT App 139 at ¶ 11, 3 P.3d 722, can be read so broadly so as to encompass the losses incurred here by Coombs, and we accordingly hold that the district court was correct in ruling that Coombs lacks standing in the present action.

CONCLUSION

¶ 14 Because of our determination that the petitioners lack standing to pursue this action, we need not reach the merits of petitioners’ other claims. See Barnard v. Motor Vehicle Div., 905 P.2d 317, 322 (Utah Ct.App.1995) (holding that a petitioner’s failure to establish standing leaves the court with “no choice but to dismiss the appeal as being beyond our jurisdiction to entertain”).

¶ 15 Accordingly, we affirm.

¶ 16 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and WILLIAM A. THORNE JR., Judge.

      . Bio-Thrust further argues that the district court improperly relied upon the internal records kept by the Division in determining that a dissolution had actually occurred in January 1991. Bio-Thrust contends that the failure of the Division to keep copies of the notices that were sent to Bio-Thrust should prove fatal to the Division's efforts to enforce that dissolution now. As noted by the district court, however, there was no provision in the 1991 Utah Code requiring the Division to maintain copies of the notices that it sent to corporations regarding its dissolution orders. See generally Utah Code Ann. § 16-10-88.2 (1991). We further note that Bio-Thrust has not contested the Division's assertions that it failed to file the required annual report in 1990. Additionally, Bio-Thrust has not indicated that it has taken any steps in the ensuing decade to rectify this error. Given the statutory silence, and given Bio-Thrust's subsequent, continued failure to comply with the corporate reporting requirements, we decline to accept Bio-Thrust's argument that the Division’s failure to keep copies of the notices should render the dissolution order a nullity.

      . Coombs also argues that he has standing under rule 23.1 of the Utah Rules of Civil Procedure. We disagree. Rule 23.1 allows shareholders to file derivative actions only to enforce rights of the corporation that “may properly be asserted" by the corporation itself. As discussed above, Bio-Thrust failed to challenge the dissolution order within the one-year time frame provided for in the Utah Code. Thus, insofar as Bio-Thrust's actions have caused it to forego the right to challenge the dissolution order, Coombs's right to do so as a derivative action plaintiff has likewise expired.