author: CARL B. JONES, Judge:

text:
    2003 OK CIV APP 27
    VOLVO COMMERCIAL FINANCE LLC THE AMERICAS, successor in interest to Volvo Commercial Finance Inc. The Americas, formerly known as Volvo Truck Finance North America, Inc., Plaintiff/Appellant, v. Charles McCLELLAN, d/b/a B & C Auto, an individual; Harold Wiggins, an individual, deceased, and his known and unknown heirs, successors and assigns; Michael Wiggins, an individual, surviving son of Harold Wiggins; State of Oklahoma ex rel Oklahoma Tax Commission; Houdek Enterprises, Inc., a Texas corporation; and Firstar Equipment Finance Corporation, a Delaware corporation, Defendants/Appellees.
    Nos. 96,105, 96,610.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Oct. 23, 2002.

      John B. Heatly, Oklahoma City, OK, for Plaintiff/Appellant.
    Jason D. Leonard, Carlton Dimery, Oklahoma City, OK, for Defendant/Appellee, Charles McClellan.
    Douglas B. Allen, General Counsel, Alfred L. Bowman, Assistant General Counsel, Oklahoma City, OK, for Defendant/Appellee, Oklahoma Tax Commission.
    Max C. Tuepker, Shawnae E. Proctor, Oklahoma City, OK, for Defendant/Appellee, Houdek Enterprises, Inc.
    James Vogt, Oklahoma City, OK, for Defendant/Appellee, Firstar Equipment Finance Corporation.
   OPINION

CARL B. JONES, Judge:

{ 1 These appeals arise from a declaratory judgment and replevin action brought by Plaintiff, Volvo Commercial Finance LLC The Americas (VCF), relating to a non-judicial foreclosure of a storage lien against a 1998 Volvo Truck/Tractor (Case No. 96,105) and an order awarding prevailing party attorney fees against VCF (Case No. 96,610).

I. FACTS AND PROCEDURAL HISTORY

12 On August 5, 1998, Defendant Harold Wiggins, an independent truck driver, purchased a new 1998 Volvo diesel tractor (Truck) for $97,000.00 from a truck dealer in Texas. The Truck was purchased by Harold under the terms of a Credit Sales Contract, which was assigned by the dealer to VCF. An original Texas Certificate of Title was issued October 7, 1998, showing title in Harold's name and listing VCF as the first lienholder.

13 On December 2, 1998, Harold died of sudden cardiac arrest while operating the Truck in Texas. The Truck sustained approximately $2,500.00 in damages due to the accident caused by Harold's heart attack. On December 9, 1998, Harold's son, Defendant Michael Wiggins, obtained possession of the Truck from a wrecker service in Abilene, Texas, upon payment of towing and storage charges. Michael moved the Truck to his residence in Oklahoma City, which was located next door to his father's home.

{4 On December 21, 1998, Michael telephoned VCF, advised them of Harold's death and inquired about the payoff amount of Harold's loan. According to the record, Michael became very angry and irritated as a result of the conversation. On February 2, 1999, VCF sent a default notice to Harold. Because Michael collected and read Harold's mail, he became aware that VCF had begun the process of attempting to repossess the Truck. On February 16, 1999, VCF left a telephone message asking that Michael return the call

T5 At some time after February 16, 1999, Michael arranged to store the Truck at Defendant Charles McClellan's place of business in Oklahoma City. According to Michael, McClellan knew Harold owned the Truck and that he was deceased. Michael also claimed he and McClellan had an agreement that McClellan would store the Truck and attempt to collect storage charges from VCF. The agreement provided that Michael would be paid the first $1,000.00 collected from VCF and that the two would split any amounts collected above $1,000.00. The trial court specifically found that Michael arranged for storage of the Truck to prevent VCF from repossessing it. McClellan denied any deal with Michael.

16 McClelian never prepared any invoice for storage charges and he never attempted to contact Michael, Harold or VCF asking for payment of those charges. On May 25, 1999, McClellan commenced foreclosure proceedings pursuant to 42 0.8. Supp.1992 § 91. On that date, McClellan and/or his wife prepared and signed an Oklahoma Tax Commission form entitled "Notice of Sale." The Notice referred to the VIN number on the Truck and provided for the sale of the Truck on June 7, 1999, at 12:00 p.m. at McClellan's residence. The Notice also stated the sale was to be conducted to satisfy a lien on the Truck being claimed by McClellan, d/b/a B & C Auto, in the amount of $2,505.00 for storage charges from December 10, 1998, to May 25, 1999, at the rate of $15.00 per day. The trial court determined that $15.00 per day is a reasonable rate for the storage of a vehicle. However, the court found that McClellan stored the Truck for only 98 days rather than the 167 days elaimed by McClellan. Thus, the court held that McClellan's storage charges totaled only $1,470.00.

T7 Also on May 25, 1999, McClellan's wife posted the "Notice of Sale" form at three public places located within Oklahoma County. The Notice of Sale was mailed to Harold, the record owner of the Truck, at his Oklahoma City residence. Michael received the notice prior to June 3, 1999. The Notice of Sale was also sent by certified mail to VCF at its address listed on the Texas Certificate of Title. Although VCF argued the Notice was delivered to the wrong address and signed for by an unauthorized person, the trial court found that delivery of the Notice was made in accordance with VCF'"s regular and usual custom and practice for mail delivery. Therefore, the court held that VCF was properly notified of the pending foreclosure sale.

T 8 On June 7, 1999, at 12:00 p.m., no third-party bidders appeared at the sale. McCilel-lan thereafter claimed the Truck in satisfaction of his garageman's lien. On June 10, 1999, McClellan submitted the Notice of Sale and other sale documents to Defendant Oklahoma Tax Commission (OTC) and sought to obtain an Oklahoma Certificate of Title in his name. VCF contacted McClellan on June 14, 1999, and advised him of Harold's death. McClellan stated that he was in the process of obtaining title to the Truck. On June 30, 1999, the OTC issued an Oklahoma Certificate of Title showing McClellan as the owner of the Truck and listing no lienholder.

19 In July of 1999, Marvin Houdek, the owner of Defendant Houdek Enterprises, Inc., contacted McClellan after learning that the Truck was for sale. Houdek thereafter obtained the Truck's VIN number and a copy of the Title from McClellan, and learned that McClellan had obtained the Truck as a result of a foreclosed storage lien and that the prior owner had died. The Truck contained no log book or owner's manual, and had no license plates or safety inspection sticker. Upon returning to Texas, Houdek telephoned the OTC to verify that the Truck had a clear title and contacted the Volvo dealership indicated on the Truck to inquire whether there was a warranty on the Truck. Houdek also arranged for Defendant Firstar Equipment Finance Corporation to finance the purchase.

T 10 On July 20, 1999, McClellan sold the Truck for $72,000.00 under a lease/purchase agreement with Houdek as lessee and Firs-tar as owner and lessor. McClellan received $69,500.00 of the purchase price and Houdek received $2,500.00 to repair the Truck. Hou-dek took possession of the Truck and returned to Texas. The trial court found that at the time of the sale, neither Houdek nor Firstar had any personal knowledge of any claim by VCF or of the identity of the owner prior to McClellan. On July 21, 1999, Hou-dek submitted an application for a Texas Certificate of Title to the Texas Department of Transportation (TDOT). On August 7, 1999, TDOT issued a Texas Certificate of Title for the Truck showing Firstar as owner and Houdek as lessee.

T 11 VCF filed the instant lawsuit on July 27, 1999, against McClellan, Michael, the estate of Harold, the OTC and certain John Doe defendants. VCF later joined Houdek and Firstar in place of the John Doe defendants. In its petition, VCF asserted a claim for replevin, recovery of the sale proceeds, unjust enrichment/constructive trust as to the sale proceeds, and declaratory judgment regarding the Truck title and priority of liens. In an amended petition, VCF added a claim contending that the foreclosure and notice provisions of 42 O.S8. Supp.1992 § 91(A) and corresponding OTC Rules violated VCEF's state and federal due process rights.

{12 Following a non-jury trial held on February 12th through 15th, 2001, the trial court held: Michael is the sole living heir of Harold; Michael lawfully came into possession of the Truck upon Harold's death; McClellan lawfully came into possession of the Truck by virtue of Michael's request to store the Truck; McClellan stored the Truck from February 17, 1999, to May 25, 1999, during which time unpaid storage charges of $1,470.00 acerued; McClellan obtained a ga-rageman's lien upon the Truck under $ 91; McClellan complied with the requirements of § 91 in foreclosing his garageman's lien; VCF timely received the Notice of Sale and failed to diligently respond thereto; McClellan became the lawful owner of the Truck foreclosing any interest held by Harold, Michael and VCF; the OTC properly issued an Oklahoma Certificate of Title to McClellan showing no lienholder on the title; Section 91 is constitutional; Firstar and Houdek were bona fide purchasers for value of the Truck; Firstar is the legal owner-lessor of the Truck and Houdek is the legal lessee of the Truck, and they are entitled to possession of same; VCF failed to sustain its burden of proof on any of its claims; and McClellan is entitled to retain the proceeds of the sale of the Truck. By separate order, and after a hearing, the trial court awarded attorney fees and costs to McClellan ($39,718.34), Houdek ($37,116.10) and Firstar ($31,470.75). VCF appeals.

II. STANDARD OF REVIEW

113 The judgment presented for review is a compilation of both findings of ° facts and conclusions of law. When, as here, the case is tried to the court, its determination of facts are accorded the same force as those made by a well-instructed jury. If any competent evidence supports the trial court's findings of fact, the same will be affirmed. Whether a lien is perfected under applicable statutes-Li.e., whether the facts (onee established) demonstrate substantial compliance with applicable statutory requirements-is largely a question of law for the trial court to resolve. Issues of law are reviewed de novo gince an appellate court has plenary, independent and non-deferential authority to reexamine a trial court's legal rulings.

K & H Well Serv., Inc. v. Tcina, Inc., 2002 OK 62, ¶ 9, 51 P.3d 1219, 1223 (footnotes omitted). The issue of entitlement to an award of attorney fees also presents a question of law subject to the de novo standard of review. Elmore v. Doenges Bros. Ford, Inc., 2001 OK CIV APP 27, ¶ 6, 21 P.3d 65, 69.

III. SUMMARY OF HOLDING

T14 In accordance with the above standards and for the reasons set forth below, we conclude that the trial court erred in holding that (1) Michael became the lawful possessor of the Truck upon his father's death, (2) McClellan lawfully came into possession of the Truck, (8) McClellan had an enforceable lien on the truck, (4) McClellan lawfully foreclosed his lien and acquired title to the Truck, and (5) McClellan was entitled to an award of attorney fees. We affirm the trial court's ruling that Firstar and Houdek are the legal owner and lessee of the Truck, respectively, and that they are entitled to possession thereof. However, we remand the trial court's award of attorney fees to Firstar and Houdek for reconsideration consistent with this opinion.

IV. PRIOR TO THE PURCHASE OF THE TRUCK BY FIRSTAR AND HOUDEK, VOLVO HAD THE RIGHT TO POSSESS THE TRUCK

¶ 15 The trial court's rulings with respect to McClellan were predicated upon the court's determination that Michael became the lawful possessor of the Truck upon his father's death. The court based its decision on testimony indicating Harold died intestate leaving Michael as his sole surviving heir. We note, however, that no administration of Harold's estate was ever initiated. It is within the exclusive original jurisdiction of a district court acting in probate to ascer tain whether a decedent died testate or intestate and to determine the identity of beneficiaries/heirs and the part of the estate to which each is entitled. In re Estate of Estes, 1999 OK 59, ¶ 21, 983 P.2d 438, 444; Oberlander v. Eddington, 1964 OK 98, ¶ 15, 391 P.2d 889, 893; In re Reardon's Estate, 1950 OK 98, ¶ 9 219 P.2d 998, 1000-01; 58 O.S. 1991 §§ 1 and 682. In Wilson v. Kane, 1993 OK 65, 852 P.2d 717, the Oklahoma Supreme Court reiterated that "[plrobate is a special statutory proceeding ... 'which must be exercised in the cases and in the manner prescribed by statute ...}" Id. at 16 and n. 17, 852 P.2d at 721-2, quoting 58 O.S. § 1 (emphasis in original). The Wilson decision emphasized that "[al probate proceeding moves along a procedural track vastly different from that followed by a regular 'action' upon a claim." Id. at ¶ 6, 852 P.2d at 721. The Supreme Court has also held that the sole method for judicially determining the heirs of a deceased person is through a proceeding to administer the deceased person's estate. Pennington v. Woodner-McGaugh, 1915 OK 1033, ¶ 3, 153 P. 875, 876. See also Gassin v. McJunkin, 1935 OK 629, ¶ 8, 48 P.2d 320, 324-5. The trial court in the instant case was without authority to declare either that Harold died intestate or that Michael was Harold's sole heir. If Michael's heirship was unsettled, his right to possess the Truck could not be judicially determined.

¶ 16 Appellees cite Davis v. Morgan, 1939 OK 468, 95 P.2d 856, Seal v. Banes, 1934 OK 299, 35 P.2d 704, and DeWitt v. Cavender, 1994 OK CIV APP 93, 878 P.2d 1077, for the proposition that title to property vests immediately in the heirs upon the death of an intestate. Appellees argue that if title to the Truck vested immediately in Michael upon Harold's death, then Michael had the right to possess the Truck. However, Appellees fail to address that prior to distribution, the property of an intestate remains subject to the control of the district court and to the possession of the administrator appointed to administer the estate. Davis at ¶ 8, 95 P.2d at 857; Seal at ¶ 0, 35 P.2d at Syllabus 8. (Discussion of this proviso was unnecessary for the disposition of the issues in DeWitt) This rule of law is sue-cinetly set forth in 84 O.S.1991 § 212:

The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the district court, and to the possession of any administrator appointed by that court for the purpose of administration.

Accord Smith v. Citizens Nat'l Bank in Okmulgee, 1951 OK 136, ¶ 26, 232 P.2d 618, 623; In re Pryor's Estate, 1947 OK 48, ¶ 25, 181 P.2d 979, 984.

¶7 Also relevant to this issue is 58 O.S. 1991 § 290 and Litz v. Exchange Bank of Alva, 1905 OK 76, 83 P. 790. Section 290 provides:

The executor or administrator is entitled to the possession of all the real and personal estate of the decedent ... until the estate is settled or delivered over by order of the district court to the heirs or devi-sees....

Furthermore, the Court in Life held, "[TJhe right to the possession of personal property between the time of the death of the intestate and the granting of letters of administration is by operation of law suspended and held in abeyance." Id., 1905 OK 76 at ¶ 4, 88 P. at 792.

18 The foregoing authority demonstrates that generally an administrator is entitled to possess the assets of an estate until the estate is settled. However, no administrator was ever appointed here because administration of Harold's estate was never initiated. Typically, then, under such circumstances and pursuant to Lite, the right to possess the Truck would have, by operation of law, been suspended and held in abeyance between the time of Harold's death and the granting of letters of administration. The latter never transpired. Accordingly, Michael did not lawfully take possession of the truck and, therefore, could not have lawfully transferred possession of the same to MeClellan.

119 Moreover, we conclude that VCF was entitled to lawful possession of the Truck upon Harold's death. Oklahoma's Uniform Commercial Code, at 12A O.S.1991 § 9-503, provided that a secured party has the right to take possession of collateral upon default. (Section 9-508 has since been renumbered to 12A O.S.2001 § 1-9-609, but the substance of the provision remains the same). The Credit Sales Contract between Harold and VCF also states that VCF may take possession of the collateral in the event of default and it specifies that the death of the buyer constitutes an "Event of Default." Harold's death triggered the Contract's default provision and VCF was entitled to possession of the Truck.

V. MeCLELLAN HAD NO RIGHT TO FORECLOSE ANY LIEN HE HAD ON THE TRUCK

¶ 20 In Phoenix Ins. Co., Hartford, Conn. v. Diffie, 1954 OK 146, 270 P.2d 634, the plaintiff's automobile was stored at the direction of the defendant insurance company and was subsequently sold by the garageman to satisfy his storage charges. The insurance company thereafter sought a credit for the storage charges against the insurance proceeds due plaintiff. The Court held:

The automobile was not stored ... by plaintiff, the owner thereof, or by his agent or any person authorized by him. He was therefore not liable for storage charges. It was stored there by defendant without authority from plaintiff and it alone was therefore liable for such charges, and its storage there by defendant ... did not create a lien against it for such charges. Williamson v. Winningham, [1947 OK 231], 186 P.2d 644; Holland v. Whiteside, [1935 OK 72, 171 Okla. 397], 43 P.2d 57.

Phoenix Ins. Co. at ¶ 30, 270 P.2d at 639. See also 38 Am.Jur.2d Garages § 139 (generally, lien created only where vehicle storage authorized by owner or agent). In the present case, the facts demonstrate that Michael was not authorized to direct McClellan to store the Truck. Thus, Michael alone was liable for the storage charges and such storage did not create a lien against the Truck for those charges.

¶ 21 Assuming for the sake of argument that Michael did have authority to transfer the Truck to McClellan, we would find that McClellan had no power to foreclose his lien thereon. In Litz, the Court quoted with approval the following statement of law: "Between the death of the intestate and the granting of letters [of administration,] the legal title to the personal property of the intestate is suspended and vested in no one." Litz at ¶ 6, 83 P. at 792. The Lits ruling was further explained in Simons v. Brashears Transfer and Storage, 1959 OK 156, 344 P.2d 1107;

In Lits ... we held that a lienor's right to sell the property upon which he has a Tien was suspended during the interim between death of the owner and appointment of a personal representative.... A lienor has no title His power to transfer title exists only by reason of his contractual or statutory right to sell. If such right does not exist, or is suspended, then it follows that he cannot transfer title.

Simons at ¶ 7, 344 P.2d at 1110. In the present case, any right McClellan may have had to acquire or transfer title to the Truck was suspended because no personal representative was ever appointed to administer Harold's estate. The same would be true even if McClellan were deemed to have rightfully come into possession of the Truck through Michael. As the Simons Court made clear, the fact that possession is rightful does not enable a lienor to transfer title between the time of a decedent's death and the appointment of a personal representative. Id. at ¶ 9, 344 P.2d at 1110-11.

1] 22 Also instructive is Oil Well Supply Co. v. Cremin, 1930 OK 122, 287 P. 414, where a judgment debtor of one heir attempted to levy upon the property of another heir, said property having been assigned to the second heir in a probate partition proceeding. The Court held:

[A] judgment duly entered is a lien on the inherited interest of the judgment debtor, but it is a lien only on that interest and is not a lien upon the land itself and becomes a lien only upon the land distributed to the judgment debtor, at which time it relates back to the time of its entry on the judgment docket. If the land is never distributed to the judgment debtor, the lien can never attach.

Id. at ¶ 37, 287 P. at 419 (emphasis in original). Accord Smith, 1951 OK 136 at ¶ 24, 204 Okla. 586, 232 P.2d at 623. Applying Cremin to the facts of this case, McClellan's storage lien might fairly be said to constitute a lien on the inherited interest of Michael. If so, it would have become a lien upon the Truck only if the Truck had been distributed by the estate to Michael. Because the Truck was never distributed to Michael, however, the lien never attached. °

123 Independent of the above analysis, we also find any lien McClellan may have had on the Truck was forfeited by him for failing to comply with 47 O.S.1991 § 964. This section provides in relevant part: -

Whenever a vehicle that is subject to registration in this state has been stored, parked or left in a garage, trailer park, or any type of storage or parking lot for a period of more than thirty (80) days, the owner of the garage, trailer park or lot shall report the make, motor and serial number of the vehicle to the Department of Public Safety. Provided, these provisions shall not apply where arrangements have been made for continuous storage or parking by the owner of the motor vehicle so parked or stored, and where the owner of said motor vehicle so parked or stored is personally known to the owner or operator - of the garage, trailer park, storage or parking lot. Any person who fails to submit the report required under this act at the end of thirty (80) days shall forfeit all claims for storage of the vehicle.. ...

{24 Appellees argue, and the trial court found, that § 964 is inapplicable here because the Truck was not "subject to registration in this state" at the time of the foreclosure because it was registered in the State of Texas pursuant to the International Registration Plan (IRP). We disagree. Title 47 O.S. Supp.1997 § 1120 permits owners of vehicles engaged in interstate commerce to register their vehicles in other states. Vehicles so registered under the IRP are considered fully licensed in Oklahoma and are exempt from all further registration. However, after Harold died and his Truck was parked in Oklahoma City, the Truck ceased to be used in interstate commerce, a prerequisite for registration under § 1120. The Truck was therefore "subject to" registration in Oklahoma the same as any other vehicle in this state that is not used in interstate commerce. See 47 O.S. Supp.1998 § 1105(B) (the owner of every vehicle in this state is required to possess a certificate of title with the exception of "those vehicles registered pursuant to Section 1120 ..., previously titled in another state and engaged in interstate commerce ....") (emphasis added).

¶ 25 We also reject Appellees argument that § 964 is inapplicable because arrangements were made for continuous storage of the Truck by someone McClellan believed to be the owner. Whether McClellan actually knew who the owner of the Truck was is a matter of debate. MecClel-lan testified: (1) the subject of the Truck's ownership was not discussed, (2) he thought Michael owned the Truck, and (8) he believed Michael and Harold were the same person. In his deposition, however, McClellan stated that Michael told him the truck belonged to Harold. Notwithstanding, we conclude that § 964 requires personal knowledge of the record owner of the stored vehicle.

126 Prior to the enactment of the Motor Vehicle License and Registration Act, 47 O.S. Supp.1977 § 22 et seq. (now Oklahoma Vehicle License and Registration Act, 47 O.S.2001 § 1101 et seq.), "motor vehicle certificates of title in Oklahoma [were considered] documents of convenience rather than documents of ownership." In re Foster, 1980 OK 37, ¶ 9, 611 P.2d 232, 234. However, "Injow, under the Oklahoma Act, certificates of title are 'proof of ownership.!" Mitchell Coach Mfg. Co., Inc. v. Stephens, 19 F.Supp.2d. 1227, 1233 (N.D.Okla.1998), quoting 47 O.S. § 1103, which states in relevant part:

It is the intent of the Legislature that the owners of every vehicle in this state shall possess a certificate of title as proof - of ownership and that every vehicle shall be registered in the name of the owner or owners thereof.

¶ 27 Consistent with the legislative intent expressed in § 1103, we believe the term "owner" as used in $ 964 means the record owner. Here, Harold was the record owner of the Truck as evidenced by the Truck's Certificate of Title. For the exception in § 964 to apply, McClellan would have. - had to contract with Harold for storage of the Truck. Because this was not possible, | the exception in § 964 does not apply here and McClellan was obligated to comply with the statute's reporting requirement. Having failed to do so, McClellan forfeited his claim for storage charges. His garageman's lien was therefore void; his foreclosure of the ° Truck was a nullity; and he was not legally entitled to retain the proceeds of the sale,, Accordingly, the judgment in favor of ' MeClellan in Case No. 96,105 is reversed. The award of prevailing party attorney fees to McClellan in Case No. 96,610 is likewise reversed. See Schulte v. Apache Corp., 1995 OK 148, ¶ 34, 949 P.2d 291, 298.

VI. AS INNOCENT PURCHASERS, FIRSTAR AND HOUDEK HAVE A SUPERIOR RIGHT TO POSSESS THE TRUCK '

¶ 28 As between VCF and Appellees Firstar and Houdek, we find that Firstar and Houdek have a superior right to possession of the Truck. The trial court held that Firs-tar and Houdek were bona fide purchasers for value of the Truck, specifically finding that they had no notice of any claim by VCF and had no way of obtaining any such notice, and that they justifiably relied upon the 'Oklahoma Certificate of Title which showed McClellan to be the owner of the Truck and showed there were no liens on the Truck. We hold that such ruling is supported by competent evidence.

V'H29 Although we have determined that McClellan did not have the right to acquire title to the Truck-and therefore had no right to transfer title thereto-we hold that Firstar and Houdek now have lawful possession as against VCF. In Snethen v. Oklahoma State Union of the Farmers Educ. And Coop. Union of Am., 1983 OK 17, 664 P.2d 377, the Court held:

, It is a general rule of law that no one can confer or transfer a better title than that which he has, unless some principle of "estoppel should operate to bar an otherwise superior claim. Neither can a person be divested of his property without his consent. While a good-faith purchaser under a defective title cannot hold against the - true owner, he does have lawful possession against all the rest of the world. He is said to have a "qualified possessory right" ''in the property.

Id. at ¶ 11, 664 P.2d at 381 (footnotes omitted). As good-faith purchasers, Firstar and Houdek have lawful possession of the Truck against VCF.

T30 Our decision in this respect is bolstered by Central Nat'l Bank & Trust Co. of Enid v. Community Bank & Trust Co. of Enid, 1974 OK 141, 528 P.2d 710, which held:

""Where one of two innocent parties must suffer through the act or negligence of a , third party, the loss should fall upon the one who by his conduct created the cireum-stances which enabled the third party to perpetrate the wrong or cause the loss."

Id. at ¶ 9, 528 P.2d at 718, quoting Bankers Inv. Co. v. Humphrey, 1962 OK 51, 369 P.2d 608. Here, McClellan was able to obtain putative title to the Truck because VCF failed to defend its lien at foreclosure. The record contains competent evidence to support the trial court's ruling that the Notice of Sale was properly delivered to VCF in accordance with the company's usual practice for mail delivery. Had VCF acted on the Notice, Firstar and Houdek would not have been in the position to suffer a loss through McClellan's acts. Therefore, the loss of possession here must fall upon VCF.

VII. FIRSTAR IS THE LEGAL OWNER OF THE TRUCK

[ 31 While the question of rightful possession has been settled, the foregoing analysis leaves unresolved the issue of legal title to the Truck. The unique facts of this case appear to present an issue of first impression in this state. However, the Supreme Court of Virginia recently addressed a substantially similar problem in Toyota Motor Credit Corp. v. C.L. Hyman Auto Wholesale, Inc., 256 Va. 243, 506 S.E.2d 14 (1998), and we find its decision sound and persuasive. There, a vehicle owner applied to the Virginia Department of Motor Vehicles (DVM) for a duplicate certificate of title and fraudulently represented that Toyota's security interest had been released. The DVM thereafter issued a new title showing no lienholder and the debtor subsequently sold the car to a bona fide purchaser for value. Id. at 15. Recognizing the usual rule that a security interest must appear on the face of the title, the court held that where there are two innocent parties, the bona fide purchaser for value was entitled to take free of the unrecorded security interest. Id. at 16.

132 In reaching its decision, the Virginia Supreme Court reasoned that a purchaser for value must be able to rely on the certificate of title without resorting to outside investigation:

The motor vehicle titling statutes were enacted to protect the public by providing for the issuance of certificates of title as evidence of ownership of motor vehicles and to provide potential buyers and eredi-tors with a single place where information about the status of motor vehicles could be found. '
*to otk
[The titling statutes] specifically provide[ ] that a certificate of title showing a security interest "shall be adequate notice to the Commonwealth, creditors and purchasers that a security interest in the motor vehicle exists." We have recognized that the converse is also true.
[WJlhen a certificate of title is issued which fails to show a lien or encumbrance, it is notice to the world that the property is free from any lien or enceum-brance, and if transferred to a bona fide purchaser the latter would obtain a good title.
Maryland Credit [Fin. Corp. v. Franklin Credit Fin. Corp., 180 S.E. 408] at 409. To hold otherwise would eliminate the ability of potential buyers and lenders to rely on the information contained in certificates of title.
Inevitably, there will be occasions when the information regarding the status of liens contained in a certificate of title will be in error. If the erroneous information is a notation that no liens exist against the vehicle, the interest of the bona fide purchaser for value prevails over the interest of the creditor with a security interest in the motor vehicle. Id. This rule applies whether the error was the result of an innocent mistake or, as in this case, of fraudulent acts by the owner. A rule which allowed reliance on the absence of lien notations on a certificate of title if such absence resulted from an innocent mistake or clerical error but not if such absence resulted from fraud would negate any ability to rely on the certificate of title. Under such a rule, a potential purchaser or lender would always have to conduct an independent search to determine if, in fact, there are no liens against the vehicle, thus defeating the intent of the General Assembly in creating a single repository for recording liens against motor vehicles.

Id. at 15-16.

¶ 33 As was true in Virginia, the Oklahoma Legislature has created a single repository for recording liens against motor vehicles in this state. Based upon the facts that all vehicle owners in this state must possess a certificate of title, 47 O.S.2001 § 1103, and that all vehicle liens must be recorded on such certificates, 47 O.S.2001 § 1110, we similarly hold that potential purchasers and lenders must be able to rely on Oklahoma certificates of title to determine whether a vehicle is subject to an encumbrance. We therefore adopt the ruling of the Virginia Supreme Court and hold that when a certificate of title fails to show a lien or encumbrance, a bona fide purchaser of the vehicle obtains good title. Because Firstar was a bona fide purchaser here, it has legal title to the Truck. Accordingly, the trial court's judgment in favor of Firstar and Hou-dek in Case No. 96,105 is affirmed.

VIIL ATTORNEY FEES AWARDED FIRSTAR AND HOUDEK MUST BE RECONSIDERED

134 In issuing its judgment below, the trial court ruled that VCF failed to sustain its burden of proof on amy of its claims for relief, As this opinion illustrates, such is not the case. VCF clearly had a superior pos-sessory interest in the Truck prior to the time the Truck was sold to Firstar and Hou-dek. Further, although Firstar and Houdek currently have a possessory interest superior to VCF, we emphasize that all three are innocent parties. Because the trial court entered its attorney fee award while under the belief that VCF lost on all issues, we remand the fee award in Case No. 96,610 with respect to Firstar and Houdek with directions that the trial court reconsider the same in light of this opinion.

135 CASE NO. 96,105 AFFIRMED IN PART; REVERSED IN PART.

136 CASE NO. 96,610 REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.

ADAMS, J., sitting by designation, concurs in result; BUETTNER, J., concurs.

      . We recognize the rule set forth in Schultz v. Evans, 1951 OK 61, 228 P.2d 626, that "all matters affecting the title of the parties [to a quiet title action under 12 O.S. § 1141] may be litigated and determined, and the judgment rendered therein is final and conclusive as against the parties thereto and their privies." Id. at 113, 228 P.2d at 628. This rule of law presumably applies to a trial court's authority to determine heirs in a quiet title action when the facts of the case necessitate such. See id. at 11, 228 P.2d 626. We note, however, the present case does not involve title to real property under § 1141. Therefore, the above rule is inapplicable here.

      . VCF argues that the participation of the OTC in the lien foreclosure process constituted state action and that the OTC's procedures deprived VCF of due process of law. Specifically, VCF complains about the 10 day notice provision of 42 O.S. Supp.1992 § 91(A)(3) and the lack of notice to VCF of McClellan's purchase of the Truck at a so-called "private sale" on June 9, 1999. Initially, we note that VCF has failed to delineate the quantum of notice necessary in a § 91 foreclosure action to satisfy constitutional due process. , We also point out that McClellan did not conduct a private sale on June 9, 1999, but rather claimed the Truck at the foreclosure sale on June 7, 1999, and filled out the sale documents two days later. Notwithstanding, resolution of VCF's due process argument is unnecessary because we reverse the effected portion of this case-McClel-foreclosure-on other grounds.

      . The trial court specifically ruled McClellan was not required to mail his Notice of Sale to VCF's registered office or designated service agent in Oklahoma as listed with the Oklahoma Secretary of State. VCF contends such ruling was in error. We disagree. Title 42 O.S. Supp.1992 § 91(A), the statute under which McClellan claimed his lien, requires that a copy of the notice of foreclosure "shall be mailed to the owner and any other party claiming any interest in said property if 'known, at their lastknown post office address. . .." VCF's last-known post office address, as listed by VCF on the original Texas Certificate of Title, was its business address in North Carolina. By mailing the Notice to said address, McClellan did all that was required of him under Oklahoma law.


source: Caselaw Access Project

author: LARRY JOPLIN, Chief Judge.

license: Public Domain

text:
    2003 OK CIV APP 42
    Donald ROGERS, Petitioner, v. MULTIPLE INJURY TRUST FUND and the Workers' Compensation Court, Respondents.
    No. 97,680.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    April 18, 2003.

      Gus Farrar, Farrar & Farrar, P.C., Tulsa, OK, for Petitioner.
    Georgiana Peterson, Pray, Walker, Jack man, Williamson & Marlar, Tulsa, OK, for Respondent.
   Opinion by

LARRY JOPLIN, Chief Judge.

11 Petitioner Donald Rogers (Claimant) seeks review of the trial court's order denying him benefits for combined, materially increased permanent partial disability (PPD) from Respondent Multiple Injury Trust Fund (Fund) as barred by operation of 85 O.S. Supp.1999 § 172(A)(2)(b) (effective November 1, 1999). In this appeal, Claimant asserts the trial court erred as a matter of law in holding his claim untimely filed, and in so holding, violated his Constitutionally guaranteed rights to due process and equal protection of the laws, as well as the state constitutional proseriptions prohibiting impairment of vested rights and enactment of special laws.

2 Resolution of this case is controlled by a recent opinion of the Court of Civil Appeals, accorded precedential value and 'released for publication by order of the Supreme Court filed February 24, 2008. Loftis v. Multiple Injury Trust Fund, 2003 OK CIV APP 30, 67 P.3d 924. In Loftis, the Court of Civil Appeals held application of "Itlhe 1999 amendment to 85 O.S. Supp.1994 § 172, as applied to PPD actions filed after October 81, 1999, ... where the subsequent injury occurred on or before that date, is an unreasonable exercise of legislative authority affecting a vested right in violation of Art. 5, § 54." 2003 OK CIV APP 30, ¶ 17, 67 P.3d at 924. The Court of Civil Appeals consequently vacated the order denying claimant benefits against Fund, and remanded for further proceedings in accord with § 172 as it existed at the time of claimant's subsequent injury. 2003 OK CIV APP 30, ¶¶ 15-18, 67 P.3d at 924.

I3 This case presents the same basic facts as Loftis Claimant, a physically impaired person, sustained a subsequent injury prior to the effective date of amended § 172, but did not file his subsequent injury claim until after, and the Workers' Compensation Court denied Claimant benefits from Fund as barred by amended § 172. In this, the trial court erred. Loftis.

T4 The order of the Workers' Compensation Court is accordingly VACATED, and the cause REMANDED for further proceedings consistent with § 172 as it existed at the time of Claimant's subsequent injury in May 1999.

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


author: BENCH, Judge:

text:
    2003 UT App 85
    Martin J. KUHRE and Sydnie W. Kuhre, Plaintiffs and Appellants, v. Kenneth GOODFELLOW and Susan Goodfellow, Defendants and Appellees.
    No. 20010924-CA.
    Court of Appeals of Utah.
    March 27, 2003.

      Lincoln W. Hobbs and Kristen M. Johnson, Hobbs & Adondakis LC, Salt Lake City, for Appellants.
    Nathan B. Wilcox and Stephen P. Horvat, Anderson & Karrenberg, Salt Lake City, for Appellees.
    Before JACKSON, P.J., and BENCH and DAVIS, JJ.
   OPINION

BENCH, Judge:

{1 Plaintiffs appeal from the trial court's grant of a motion to dismiss their complaint. Plaintiffs also appeal the trial court's award of attorney fees.

BACKGROUND

12 Plaintiffs Martin and Sydnie Kubhre (the Kubhres) purchased a home from Defendants Kenneth and Susan Goodfellow (the Goodfellows). Following the purchase, the Kuhres allegedly discovered problems with the condition of the home. After further investigation, the Kuhres filed a complaint against the Goodfellows, the real estate agent, and the broker involved in the transaction. The claims against the real estate agent and broker were eventually settled or dismissed.

T3 After the Kubres filed an amended complaint (first amended complaint), the Go-odfellows filed a motion to dismiss. The trial court denied the Goodfellows' motion and granted the Kubres "leave to amend their Amended complaint one more time." The trial court also awarded the Goodfellows their attorney fees because their Motion to Dismiss "has merit [and] Plaintiffs' misrepresentation cause of action is not pled with specificity as required by Rule 9(b), [of the] Utah Rules of Civil Procedure."

T4 Thereafter, the Kuhres filed a second amended complaint. The second amended complaint listed the following causes of action: (1) breach of warranties; (2) breach of contract; (8) confidential relations; (4) negligent and/or intentional misrepresentation; (5) negligence; and (6) rescission. The Go-odfellows filed a motion to dismiss the second amended complaint. In response, the Kuh-res filed an opposition memorandum that was twenty-two pages long, along with an ex parte motion for leave to file an over-length memorandum. The ex parte motion was denied and the trial court's order stated, "submit brief of proper length." The Kubhres then submitted an opposition memorandum that was thirteen pages long, but failed to request leave to file an over-length memorandum. The Goodfellows moved to strike this memorandum. The trial court struck the Kuhres' opposition memorandum "for failure to conform to the ten page limitation set forth in Rule 4-501" and ordered that the second amended complaint be dismissed. The court ruled that "[the plaintiffs have failed to add additional substantive allegations in their Second Amended Complaint properly stating a claim against ... the Go-odfellows."

T5 On January 18, 1999, the trial court entered judgment dismissing with prejudice the Kubres' first four causes of action and certifying the judgment on those claims as final under rule 54(b) of the Utah Rules of Civil Procedure. On February 2, the Kuhres filed a petition for an interlocutory appeal pursuant to rule 5 of the Utah Rules of Appellate Procedure. On February 8, the Kubres filed a notice of appeal stating that they were appealing the judgment entered on January 13, 1999 (the 54(b) judgment). The supreme court denied the petition for interlocutory appeal pursuant to rule 5 on April 14, 1999, and dismissed the appeal of the 54(b) judgment on December 10, 2001, for failure to file a docketing statement. Following the dismissal of the remaining defendants in an order granting summary judgment dated October 18, 2001, the Kuhres filed this appeal on November 15, 2001.

ISSUES AND STANDARDS OF REVIEW

16 The Goodfellows challenge our jurisdiction over this appeal. "Whether appellate jurisdiction exists is a question of law ...." Pledger v. Gillespie, 1999 UT 54, ¶ 16, 982 P.2d 572.

T7 The Kuhres raise three questions for review. First, did the trial court err in dismissing, without prejudice, their first amended complaint? Second, did the trial court err in granting the Goodfellows' motion to dismiss the Kuhres' second amended complaint with prejudice? "In reviewing a ruling on a motion to dismiss, we '"accept the factual allegations in the complaint as true and draw all reasonable inferences from those facts in a light most favorable to [thel plaintiff(s]."'" Nebeker v. Utah State Tax Comm'n, 2001 UT 74, ¶ 2, 34 P.3d 180 (citations omitted).

T8 Finally, did the trial court err in awarding the Goodfellows their attorney fees based upon the trial court's "conclusion that the motion to dismiss [the first amended complaint] 'has merit,' despite the absence of a finding of bad faith"? "Whether attorney fees are recoverable ... is a question of law; which we review for correctness." Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998).

ANALYSIS

I. Jurisdiction

¶ 9 The Goodfellows dispute whether we have jurisdiction over this appeal, arguing that the Kuhres' appeal is untimely. The Goodfellows claim that all the "matters challenged in this appeal were resolved on January 13, 1999, in a judgment designated as final pursuant to Rule 54(b)." The Goodfel-lows argue that because the Kuhres failed to pursue their earlier rule 54(b) appeal, they are now precluded from bringing the same issues in this appeal.

¶ 10 "The initial question of whether an order is eligible for certification under rule 54(b) ... is a question of law." Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099, 1100 (Utah 1991). "Rule 54(b) of the civil rules permits the trial court to certify certain interlocutory orders and, by so doing, force the appellate court to entertain the appeal." Id.; see also Utah R. Civ. P. 54(b). In determining whether a trial court's rule 54(b) certification is proper, we " 'focus[ ] on the degree of factual overlap between the issue[s] certified for appeal and the issues remaining in the district court.' " Kennecott, 814 P.2d at 1103 (quoting Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 860 F.2d 1441, 1445 (7th Cir.1988)). "When this factual overlap is such that separate claims appear to be based on the same operative facts or on the same operative facts with minor variations, they are held not to constitute separate claims for rule 54(b) purposes." Id.; see also FMA Leasing Co. v. Citizens Bank, 823 P.2d 1065, 1066 (Utah 1992).

T 11 In the case before us, the 54(b) judgment dismissed the Kuhres' claims for breach of warranties, breach of contract, confidential relations, and negligent/intentional misrepresentation. These claims all relate to the Kuhres' purchase of the Goodfellows' home. The Goodfellows argue that the rule 54(b) certification was proper because the remaining claims of negligence and rescission require the Kuhres to prove facts unnecessary to the claims dismissed in the 54(b) Judgment. In light of the supreme court's decision in Weiser v. Union Pacific R.R. Co., 932 P.2d 596, 597-98 (Utah 1997), it is inappropriate to place an emphasis on a variation of specific facts needed to prove a claim, such as the Goodfellows do in this case, while ignoring the factual overlap of the overriding operative facts. See also Kennecott, 814 P.2d at 1103.

112 In the docketing statement filed in this appeal, the Kubhres stated that "[ble-cause the [rule 54(b)] appeal ... was taken from an order rendered prior to resolution of all issues in the case between all parties, the Kuhres will file a motion to dismiss that appeal." Four days later, the supreme court dismissed sua sponte the rule 54(b) appeal for failure to file a docketing statement. In light of this dismissal, the factual overlap of the dismissed and remaining claims, and the "principle that interlocutory appeals should be avoided because they present appellate courts with multiple appeals involving narrow issues taken out of ... context[, which] slow down the final determination of ... matter(s]," we have jurisdiction over this appeal. Kennecott, 814 P.2d at 1101.

II. The First Amended Complaint

113 The Kubres first argue that "the trial court erred in dismissing, without prejudice, ... [their first] amended complaint." We disagree. The trial court dismissed the first amended complaint "without prejudice" and allowed the Kubhres to file a second amended complaint. By filing their second amended complaint, the Kuhres waived the right to challenge the dismissal of the first amended complaint because an "amended pleading supercedes the original pleading, and the original pleading performs no function." Campbell, Maack & Sessions v. Debry, 2001 UT App 397, ¶ 17 n. 4, 38 P.3d 984; see also Abrams v. Watchtower Bible & Tract Soc., 306 Ill.App.3d 1006, 240 Ill.Dec. 111, 715 N.E.2d 798, 804 (1999) (stating that "[a] party who files an amended complaint waives any objection to the ... court's ruling on the former complaint").

III. The Second Amended Complaint

{ 14 The Kuhres next argue that the trial court erred in dismissing their second amended complaint with prejudice. The Kuhres claim that the "second amended complaint clearly met the pleading requirements."

15 In granting the Goodfellows' Motion to Dismiss the second amended complaint, the trial court concluded that the Kubres "failed to add additional substantive allegations properly stating a claim against the Goodfellows in the restated first, second, third, and fourth causes of action ... and they are, therefore, dismissed."[Flor purposes of reviewing the dismissal of plaintiffs' amended complaint, we accept as true the factual allegations in plaintiffs amended complaint, and we analyze whether a cognizable claim for relief has been stated." Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 39, 54 P.3d 1054.

A. Breach of Warranties and Breach of Contract

{16 The Kuhresg' claim that their "second amended complaint clearly met the pleading requirements." The Kuhres, however, fail to set forth the pleading requirements for either a breach of warranties or breach of contract claim and fail to state how their pleadings in the second amended complaint adequately met these requirements. Accordingly, we decline to address whether the trial court erred in dismissing these claims. See State v. Bishop, 753 P.2d 439, 450 (Utah 1988) (stating that appellate courts are " 'not simply a depository in which the appealing party may dump the burden of argument and research'") (quoting Williamson v. Opsahl, 92 Ill.App.3d 1087, 48 Ill.Dec. 510, 416 N.E.2d 783, 784 (1981)), overruled on other grounds by State v. Menzies, 889 P.2d 393 (Utah 1994); see also Associated Gen. Contractors v. Board of Oil, Gas and Mining, 2001 UT 112, ¶ 37 n. 8, 38 P.3d 291 (listing twenty-two cases where a party inadequately briefed an argument).

B. Confidential Relations

T17 The Kubhres next argue that their "confidential relations claim was improperly dismissed." The Kubres cite to Webster v. Lehmer, 742 P.2d 1203 (Utah 1987), as support for their argument that a confidential relationship existed in this case and that the "similar facts in this case mandate that the confidential relationship issue be determined by a jury." In Webster, the vendor sought to rescind a real estate contract with a purchaser because of undue influence. See id. at 1203-04. The supreme court found "[almple evidence ... to sustain the finding of the trial court that a confidential relationship existed." Id. at 1207. The court then went on to conclude that "a presumption of undue influence was established" that the purchaser failed to overcome, therefore, the transaction was rescinded because it was unfair to the seller. Id.

¶ 18 "'A confidential relationship arises when one party, having gained the trust and confidence of another, exercises extraordinary influence over the other party'" Id. at 1206 (quoting Von Hake v. Thomas, 705 P.2d 766, 769 (Utah 1985)). This doctrine " 'rests upon the principle of inequality between the parties'" Id. (quoting Bradbury v. Rasmussen, 16 Utah 2d 378, 383, 401 P.2d 710, 713 (1965)). " 'Mere confidence [, however,] in one person by another is not sufficient alone to constitute such a relationship.'" Id. (quoting Bradbury, 16 Utah 2d at 383, 401 P.2d at 713). Furthermore, "[ulnder Utah law, the general rule is no fiduciary obligations exist between a buyer and seller of any property." Dugan v Jones, 615 P.2d 1239, 1248 (Utah 1980); see also Cole v. Parker, 5 Utah 2d 263, 268, 300 P.2d 623, 626 (1956) (stating that "[except under special cireumstances, no fiduciary obligations exist between a buyer and seller of | any property").

T19 The Kuhres alleged, inter alia, the following in their second amended confidential relations claim: (1) "The Goodfellow Defendants ..., by virtue of their express and implied commitments to the plaintiffs, and by virtue of their conduct in repeatedly representing the fact that they were looking out for the Kuhres, occupied positions of trust and assumed confidential relationships with the plaintiffs"; (2) "These defendants also sought to and did obtain the trust and confidence of the Kuhres" and then "exercise[d] undue influence over the Kubres"; (8) The Goodfellows, "managed through their repeated assurances and stated commitments to the Kuhres, to convince the Kuhres that [they] could and should be trusted"; (4) The Goodfellows "failed to disclose ... defects and deficiencies known or which should have been known by them ... in breach of their fiduciary duties"; and (5) "Defendant Adam Nash [who was subsequently dismissed from the proceedings] [owed] additional duties to the Kubres as a result of his pre-existing relationship with Martin Kuhre and the trust engendered thereby."

1 20 The facts alleged by the Kuhres, even when assumed to be true, do not rise to the level of a confidential relationship and are not similar to those found in Webster. In Webster, the supreme court found a confidential relationship because of the "attorney client indicia" that existed between the purchaser and seller. Webster, 742 P.2d at 1207. The purchaser had counseled the seller and his wife at least twice "in the capacity of an attorney." Id. The purchaser used her "expertise as an attorney" and the trust given her by the seller, to her advantage by not disclosing the true status of the property she was seeking to purchase. Id. The purchaser even included attorney fees for drafting the sale agreement "as part of the consideration paid for the property." Id. In the case before us, no per se confidential relationship like the attorney-client relationship existed between the Goodfellows and the Kuhres. Nor do the pleadings indicate any "special circumstances," Cole, 5 Utah 2d at 268, 300 P.2d at 626, so as to overcome the "general rule [that] no fiduciary obligations exist between a buyer and seller of any property." Dugan, 615 P.2d at 1248.

Finally, the Kubhres argument that the trial court "should not be allowed to make fact-intensive determinations as to whether or not a confidential relationship existed" is unavailing. In the instant case, the Kuhbres' amended pleadings conclude that a confidential relationship existed, and that the Goodfellows violated this relationship, without reciting enough facts to create such a relationship. "[Mjere conclusory allegations in a pleading, unsupported by a recitation of relevant surrounding facts, are insufficient to preclude dismissal...." Chapman v. Primary Children's Hosp., 784 P.2d 1181, 1186 (Utah 1989). Accordingly, we conclude that the trial court did not err in dismissing the Kuhres' confidential relations claim.

C. Negligent/Intentional Misrepresentation

¶ 22 "[In order to prevail on a claim of fraud [or misrepresentation], all the elements of fraud must be established by clear and convincing evidence." Secor v. Knight, 716 P.2d 790, 794 (Utah 1986). These elements include:

"(1) a representation; (2) concerning a presently existing material fact; (8) which was false; (4) which the representer either (a) knew to be false, or (b) made recklessly, knowing that he had insufficient knowledge on which to base such representation; (5) for the purpose of inducing the other party to act upon it; (6) that the other party, acting reasonably and in ignorance of its falsity; (7) did in fact rely upon it; (8) and was thereby induced to act; (9) to his injury and damage."

Id. (quoting Dugan, 615 P.2d at 1246). For a fraud claim to be properly brought, "the cireumstances constituting fraud or mistake shall be stated with particularity." Utah R. Civ. P. 9(b).

23 The Kuhres' amended complaint alleges, inter alia, the following: (1) Mr. Goodfel-low told the Kuhres that he had seen an engineer's report indicating that the home was in "perfect condition"; (2) Mr. Goodfel-low never saw such a report and his statement that he did was at least a reckless misrepresentation; (3) Mr. Goodfellow told: the Kubres that "he had received and reviewed a property inspection report in connection with the previous offer on the home, and that he would provide a copy to the plaintiffs" to save them money; (4) Mr. Go-odfellow never did provide an inspection report; (5) but for the Goodfellows' representations, the Kubres would have obtained an independent professional inspection of the property; (6) Mr. Goodfellow told the Kuhres that the previous potential buyer "had withdrawn from the sale based upon her ... relocation to another country"; (7) the previous potential buyer, however, withdrew because of concerns with the home; (8) due to Mr. Goodfellow's representations regarding the previous buyer the Kuhres were unable to contact this individual; (9) Mr. Goodfellow stated that the home had no leaks; (10) following closing, the Kubres obtained an inspection report indicating water damage that "must have [been] known" by the Good-fellows before closing; (11) upon inspection of the home by experts following closing, other significant problems were discovered including settling, cracks, and soil problems; (12) these problems were undiscoverable by a reasonable inspection by the Kuhres at or before the time of purchase; (13) the Good-fellows knew or should have known about these defects in the home; (14) the Kubres relied on the Goodfellows' representations about the home; and (15) the representations made by the Goodfellows were material to the Kubhres' purchase of the home.

T 24 The Goodfellows correctly state that a fraud allegation made on information and belief is adequate under rule 9(b), "as long as it includes the facts upon which the belief is based." Arena Land & Inv. Co. v. Petty, 906 F.Supp. 1470, 1476 (D.Utah 1994). In the case before us, the Kuhres include sufficient facts upon which they base their belief. For example, the Kuhres allege a specific conversation with Mr. Goodfellow wherein he stated that he had reviewed an engineer's report about the home and that the "home [was] in perfect condition except for an upper deck railing that has been repaired." They also specifically allege statements made by the Goodfellows regarding false reasons why a previous potential buyer withdrew from purchasing the home.

25 After viewing " 'the factual allegations . as true and consider[ing] them, and all reasonable inferences to be drawn from them, in the light most favorable to'" the Kubhres, we conclude that the Kuhres have presented a cognizable claim for relief. Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 38, 54 P.3d 1054 (citation omitted). The trial court, therefore, erred in dismissing the Kubres' Negligent/Intentional Misrepresentation claim.

IV. Attorney Fees

¶ 26 The Kubres argue that the trial court erred in awarding attorney fees that the Goodfellows incurred in defending the first amended complaint "based only upon the [trial] court's conclusion that the motion to dismiss 'has merit."" The trial court's decision is sustainable under Lake Creek Irrigation Co. v. Clyde, 22 Utah 2d 222, 451 P.2d 375 (1969). In Lake Creek, the supreme court concluded that the trial court did not abuse its discretion in awarding attorney fees "as a condition to the granting" of a motion to dismiss without prejudice. Id. at 226, 451 P.2d at 378. In the instant case, the trial court concluded that the Goodfellows' motion to dismiss "has merit," but instead of dismissing with prejudice, the court allowed the Kuhres to amend their complaint. Accordingly, the trial court did not err in awarding the Goodfellows' their attorney fees when it allowed the Kuhres to amend their complaint because "'[al trial judge is accorded broad discretion in determining how a [case]. shall proceed in his or her courtroom.'" Hartford Leasing Corp. v. State, 888 P.2d 694, 702 (Utah Ct.App.1994) (alterations in original) (citation omitted).

CONCLUSION

127 We conclude that the trial court did not err in dismissing the Kuhbres' first amended complaint and the first three causes of action in their second amended complaint, or in awarding the Goodfellows their attorney fees. We conclude, however, that the trial court did err in dismissing the Kuhres Negligent/Intentional Misrepresentation cause of action. Accordingly, we affirm in part and reverse in part. The parties are to bear their own costs on appeal.

128 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JAMES Z. DAVIS, Judge.

      . We note that the trial court failed to enter adequate findings supporting its conclusion that the order was final and certifiable under rule 54(b). See Bennion v. Pennzoil Co., 826 P.2d 137, 139 (Utah 1992) ('In order to facilitate this court's review of judgments certified as final under rule 54(b), trial courts should ... enter findings supporting the conclusion that such orders are final. The findings should explain the lack of factual overlap between the certified and remaining claims and thus satisfy the Kennecott criterion for certification to be proper.").

      . We note in passing that under rule 52 of the Utah Rules of Civil Procedure a court "shall ... issue a brief written statement of the ground for its decision on all motions granted under Rule 12(b) ... when the motion is based on more than one ground." Utah R. Civ. P. 52(a). The Good-fellows' Motion to Dismiss cites to both rule 12(b) and rule 9(b) as reasons for the trial court to dismiss the Kubres' complaint The trial court should therefore have been clearer as to the ground for its ruling.


author: BILLINGS, Associate Presiding Judge:

text:
    2003 UT App 107
    STATE of Utah, Plaintiff and Appellee, v. Somnuk CHANSAMONE, Defendant and Appellant.
    No. 20020235-CA.
    Court of Appeals of Utah.
    April 10, 2003.

      Alisha Giles and Aric Cramer, Cramer Cramer & Adair LLC, Bountiful, for Appellant.
    Mark L. Shurtleff, Attorney Generals Office and Marian Decker, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BILLINGS, ORME, and THORNE.
   OPINION

BILLINGS, Associate Presiding Judge:

T1 Somnuk Chansamone appeals the trial court's order denying his motion to suppress evidence seized during a warrantless search. We affirm.

BACKGROUND

T2 On the evening of October 12, 2001, Rex Stacey was working as a security guard (or "bouncer") at Bogey's, a night club in Clearfield, Utah. Stacey became suspicious of Chansamone after watching him go in and out of the bathroom "three or four times in an hour." After following Chansamone into the bathroom, Stacey saw Chansamone and another man standing shoulder to shoulder in the doorway of the bathroom's only stall. Both men faced Stacey, who was about five or six feet away. Stacey observed Chansa-mone holding "a baggie with some white stuff in it," with both men looking down at the baggie.

T3 Knowing police were in the building, Stacey kept both men in the bathroom and radioed downstairs, asking another bouncer to send the police. Downstairs, the other bouncer informed Officer Jim Cortwright of the possibility of drugs upstairs in the bathroom. When Officer Cortwright arrived upstairs, he found Chansamone and the other man inside the bathroom, with Stacey and another bouncer just inside the door. Stacey pointed out Chansamone and told Officer Cortwright that Stacey had shortly before witnessed a baggie with white powder in Chansamone's hand that Stacey believed to be drugs.

T4 Officer Cortwright then entered the bathroom and saw Chansamone kneeling in front of the toilet, apparently vomiting. After watching Chansamone for fifteen to twenty seconds, Officer Cortwright determined Chansamone was faking, as nothing was coming out of his mouth and his motions appeared false. When Officer Cortwright asked Chansamone if he was okay, Chansa-mone kept reaching for his right pants pocket and making sounds as if he were sick Concerned about Chansamone's repeated motions toward his right pants pocket, Officer Cortwright had Chansamone stand up. Officer Cortwright then turned Chansamone to face the wall and asked him to put his hands on the wall. Instead of complying, Chansamone reached down again, with his right hand, toward his right pants pocket. Officer Cortwright grabbed Chansamone's right hand and again told him to put it up on the wall, and Chansamone complied.

T5 Next, Officer Cortwright felt the outside of Chansamone's right pants pocket, and after "feelling] something inside," searched the pocket. Officer Cortwright pulled out a "small plastic baggie with a white powdery substance inside" that later tested positive for cocaine. After finding the baggie, Officer Cortwright placed Chansamone under arrest.

' 6 Prior to October 12, 2001, Officer Cort-wright and Stacey had interacted at Bogey's every Thursday and Saturday evening for the previous eight to nine months. During that time, Officer Cortwright made at least one arrest based on information from Stacey. Officer Cortwright considered Stacey to be a credible individual. Additionally, Stacey had observed controlled substances approximately six times in the previous six years.

17 Chansamone moved to suppress the cocaine, and after a hearing on December 26, 2001, the trial court denied Chansamone's motion. Thereafter, Chansamone successful ly petitioned this court for interlocutory review.

ISSUE AND STANDARD OF REVIEW

T8 Chansamone argues the trial court erred in denying his motion to suppress. We review the trial court's legal con-elusions on a motion to suppress for correctness, "with a measure of discretion given to the trial judge's application of the legal standard to the facts." Brigham City v. Stuart, 2002 UT App 317, ¶ 5, 57 P.3d 1111 (quotations and citation omitted).

ANALYSIS

¶ 9 Chansamone claims Officer Cortwright's warrantless search did not fall within a recognized exeeption to the Fourth Amendment's warrant requirement. The Fourth Amendment to the United States Constitution provides that "[the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. "As a result, we generally consider searches conducted without the benefit of a properly issued warrant to be unreasonable." State v. Valenzuela, 2001 UT App 332, ¶ 9, 37 P.3d 260. However, exceptions to this rule include where an officer conducts a search incident to arrest. See, e.g., State v. Gallegos, 967 P.2d 973, 978-79 (Utah Ct.App.1998).

¶ 10 We conclude Officer Cortwright's search was a valid search incident to arrest. Although the trial court's findings focus more on exigent circumstances as a basis for excusing the warrant requirement in this case, the search incident to arrest conclusion is more readily supported by the record and fully consistent with the trial court's ruling.

¶ 11 A search of an arrestee's person is valid without a warrant, despite the fact that it shortly precedes the arrest, "so long as the arrest and the search are substantially contemporaneous and probable cause to effect the arrest exists independent of the evidence seized in the search." State v. Banks, 720 P.2d 1380, 1383-84 (Utah 1986). "[Plrobable cause justifying an arrest" requires " 'facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense."" State v. Trane, 2002 UT 97, -¶ 27, 57 P.3d 1052 (quoting Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 LEd.2d 343 (1979). "Here, because the State predicates its probable cause argument upon information received from an informant, we must examine the totality of the circumstances to determine whether the informant's tip, together with police observations, provided probable cause to arrest [Chansamonel." Valenzuela, 2001 UT App 332 at ¶ 11, 37 P.3d 260 (quotations and citations omitted). "Factors to consider ... include an informant's veracity, reliability[,] and basis of knowledge." State v. Purser, 828 P.2d 515, 517 (Utah Ct.App.1992).

112 "[Blecause citizen informers, unlike police informers, volunteer information out of concern for the community and not for personal benefit," we presume the reliability and veracity of citizen informers. Kaysville City v. Mulcahy, 943 P.2d 231, 235 (Utah Ct.App.1997) (quotations, citations, and footnote omitted). A citizen informant is "an average citizen who is in a position to supply information by virtue of having been a crime victim or witness." State v. White, 851 P.2d 1195, 1199 (Utah Ct.App.1993) (quotations and citations omitted). Here, Stacey gained and reported his information in the course of performing his regular job, and there is no indication Stacey received anything in return for the information. Thus, we presume Stacey's reliability and veracity as a citizen informant.

113 Stacey's reliability and veracity are further bolstered because officer Cortwright knew Stacey's identity, see State v. Deluna, 2001 UT App 401, ¶ 15, 40 P.3d 1136, and Stacey "had a history of giving reliable information to [Officer Cortwright]," having previously helped effectuate at least one drug arrest. State v. Bailey, 675 P.2d 1203, 1206 (Utah 1984). Also, Stacey's "basis of knowledge" is strong because he based his information on "personal observations" of Chansa-mone, and because of his past experience witnessing illegal drugs. Purser, 828 P.2d at 517.

T14 Because the reliability of the information is strong, less corroboration of the details of the tip is necessary. See Deluna, 2001 UT App 401 at ¶ 21, 40 P.3d 1136. Nevertheless, the detail of Stacey's information and Officer Cortwright's corroboration both support our probable cause determination. Stacey pointed out Chansamone to Officer Cortwright and informed him that Chansamone was in possession of a baggie with white powder in it that Stacey saw and believed to be drugs. Although he did not see the cocaine prior to searching Chansa-mone, Officer Cortwright observed Chansa-mone kneeling in front of the toilet, faking vomiting. Officer Cortwright also saw Chan-samone repeatedly reach for his right pants pocket, and Chansamone initially refused to comply with the officer's request to keep both hands on the wall, instead reaching again for his right pants pocket. Under these cireumstances, it was reasonable for Officer Cortwright to believe Chansamone had contraband in his right pants pocket and thus reasonable for the officer to arrest Chansamone for possession of drugs.

15 Looking to the totality of the cireum-stances, Officer Cortwright had probable cause to arrest Chansamone for possession of a controlled substance prior to the search. The informant's veracity, reliability, and basis of knowledge are all strong, and the officer's observations of Chansamone were consistent with Stacey's information.

$16 In addition, we readily conclude the arrest and search were "substantially contemporaneous." Banks, 720 P.2d at 1384. To qualify, the search "cannot be remote in time or place from the arrest." (Gallegos, 967 P.2d at 978 (quotations and citations omitted). Officer Cortwright arrested Chansa-mone in the same location as the search. We need not define how much time is too remote, for Officer Cortwright conducted the search immediately before making the arrest. See State v. Anfield, 313 Or. 554, 836 P.2d 1337, 1341 (1992) ("The fact that the search preceded the formal arrest by a few moments [does] not keep the search from being incident to the arrest, so long as there was probable cause for the arrest and the initial search was related to the reason for the arrest."). Therefore, we conclude the search was incident to arrest and valid.

CONCLUSION

T17 Because the search was valid as a search incident to arrest, we affirm the trial court's denial of Chansamone's motion to suppress.

18 WE CONCUR: GREGORY K. ORME and WILLIAM A. THORNE JR., Judges.

      . We state the facts in a light most favorable to the trial court's ruling denying Chansamone's motion to suppress. See, e.g., State v. Tetmyer, 947 P.2d 1157, 1158 (Utah Ct.App.1997).

      . Officer Cortwright testified, "I was asking if [Chansamone] was okay. And he kept reaching for his [right] pants pocket during the time I was talking to him." ""[Elach time I'd ask him if he was okay he would almost regurgitate ... and he did that like three or four times, maybe even more."

      . The trial court did not specifically find the search was incident to arrest, but " '[iJt is well settled that we may affirm a judgment of a lower court if it is sustainable on any legal ground or theory apparent on the record."" State v. Comer, 2002 UT App 219, ¶ 21 n. 8, 51 P.3d 55 (quoting State v. Finlayson, 2000 UT 10, ¶ 31, 994 P.2d 1243).

      . In contrast, "[a] police informant is one who gains information through involvement in criminal activity or who is motivated ... by pecuniary gain." Kaysville City v. Mulcahy, 943 P.2d 231, 235 n. 2 (Utah Ct.App.1997) (quotations and citation omitted) (omission in original).

      . Although the trial court did not explicitly find Officer Cortwright had "probable cause," this conclusion is "implicit in the [trial] court's findings of fact and consistent with its suppression order." State v. Lopez, 873 P.2d 1127, 1131 (Utah 1994).