author: OPALA, V.C.J.

text:
    2003 OK 43
    Robin MUSTAIN, Plaintiff/Appellant, v. GRAND RIVER DAM AUTHORITY and David Harris Grandin, Defendant/Appellees.
    No. 96,056.
    Supreme Court of Oklahoma.
    April 22, 2003.
    As Corrected April 23, 2003.
    As Corrected May 7, 2003.

      Robert Bell, Norman, and James T. Thompson, Edleman & Thompson, Kansas City, MO, for appellant.
    Robert A. Franden, Jody R. Nathan, Feld-man, Franden, Woodard Farris & Bou-dreaux, Tulsa, and Allen B. Pease, General Counsel, Grand River Dam Authority, Vinita, for appellees.

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

   OPALA, V.C.J.

T1 The certiorari quest presses for our decision two questions: (1) Does the Grand River Dam Authority's collection of commercial-and private-dock permit fees and miscellaneous rents constitute "commercial activity" which would except it from the immunity otherwise extended by the Recreational Land Use Act? (2) Does the Governmental Tort Claims Act's protection extend to the Grand River Dam Authority? We answer the first question in the negative and the second in the affirmative.

I.

ANATOMY OF THE LITIGATION

T2 Robin Mustain (plaintiff/appellant) sustained severe bodily injuries when the personal water craft (water eraft ) on which she was a passenger struck a support structure of an abandoned railroad bridge situated in the main channel of Grand Lake. The accident occurred at approximately 8:45 p.m. on July 12, 1998. Mustain was one of three individuals aboard the craft operated by David Grandin. According to witnesses, Grandin was piloting the water craft, weaving it back and forth between the support columns of an abandoned railroad bridge at dusk, when he struck a concrete cross-bar which spanned the distance between two vertical support structures. The cross-bar stood approximately three-and-a-half feet above the water. As a result of the accident the other passenger was killed. Mustain and Grandin sustained serious injuries.

13 The bridge at issue in today's controversy is over ninety-five years old. It was left uncompleted when a dam was built to impound the waters of the Grand River to create a source for producing hydroelectric power. The bridge and portions of the support structure (including the cross bar which was struck) were visible above the water line. The structure bore no markings or warnings. Mustain produced an affidavit from a maritime safety expert which states the bridge structure constitutes a navigational hazard and should have been marked and lighted in accordance with federal regulations. She also relied on evidentiary material to show that the Authority generated miscellaneous rent income attributable to its operation of the lake and permit fees for commercial and private docks on the lake. Mustain does not claim nor did she produce probative material to show that she or Grandin were charged a fee for using the lake or that the Authority charges user fees. The Authority contends it is prohibited from charging such fees.

{4 Mustain seeks recovery from Grandin, operator of the water craft, and from the Grand River Dam Authority (Authority), who owns and operates the lake. She bases her first theory of recovery on what we will refer to as the "commercial-activity exception" to the immunity otherwise afforded the Authority by the Recreational Land Use Act (RLUA). Her petition alleges the Authority, despite having actual knowledge of the dangers posed by the bridge and notice of defects associated with the structure, consciously chose to disregard these dangers and refused to take steps to rectify the alleged dangerous condition or provide warnings of the danger. These actions, she asserts, constitute "deliberate, willful or malicious" conduct as this phrase is used in § 18301-315(E) and operate to strip the Authority of the protection otherwise afforded by the RLUA.

T5 The Authority moved to dismiss the action claiming (1) the suit is time-barred by the statute of repose, (2) the Authority's collection of commercial- and private-dock permit fees and miscellaneous rents does not constitute "commercial activity" within the meaning of the RLUA and hence it is not stripped of its immunity shield, and (8) the Authority's conduct does not rise to the level of deliberate, willful, or malicious and hence its actions do not deprive it of the RLUA's protection; but even if they did, the provisions of the Governmental Tort Claims Act (GTCA) apply here to exempt it from civil liability.

T6 The trial court sustained the Authority's motion to dismiss. It ruled (1) the statute of repose operates to bar Mustain's claim, and (2) the Authority's profit-related activities are unrelated to the bridge and hence not the type of commercial endeavor that deprives the Authority of the RLUA-conferred immunity. Mustain appealed.

T7 Treating the nisi prius order as summary adjudication, the Court of Civil Appeals (COCA) affirmed the trial court's disposition. COCA agreed with the trial court's ruling that the Authority's profit-related activities, demonstrated by the evidentiary materials, do not operate to bring the Authority within the statute's commercial-activity exception. With regard to Mustain's other theory of liability-that the Authority's actions amounted to deliberate, willful or malicious conduct and hence lie outside the protections afforded by the RLUA-COCA noted the legislature had declared the Authority to function as a state agency and held that it falls under the protection of the GTCA. Any liability the Authority may bear under the other theory is barred by the GTCA.

IL

STANDARD OF REVIEW FOR SUMMARY PROCESS

18 We agree with COCA that the trial court's disposition stood effected by summary process. Summary process is a procedural pretrial device for the prompt and efficient disposition of an action sans forensic combat. It is available where the moving party shows there is no substantial controversy over applicable facts that are material to its defense and any inference which may be reasonably drawn from undisputed facts tendered must be construed in the moving party's favor. Once the moving party has made the required showing, the adverse party must then assume the burden of demonstrating the existence of a material fact that would justify a trial. Summary relief issues stand before us for de novo review.

HL

A.

THE RULE IN HUGHEY-THAT COMMERCIAL ACTIVITY UNRELATED TO LAND/WATER USE BY INVITED GUESTS IS NOT A BAR TO § 1301-315 IMMUNITY-APPLIES TO TODAY'S CONTROVERSY.

T9 Mustain's certiorari challenges COCA's holding that the Authority's commercial activities here in question are not of the type that bring it within the RLUA's commercial-activity exception and stand outside the immunity protection otherwise afforded by that Act. She contends that its activities-the collection of dock-permit fees and miscellaneous rents-are to be likened to those present in Boyd v. U.S. ex rel. U.S. Army Corps of Engineers where we determined the Corps was engaged in commercial activity that served to exempt it from the Act's liability provisions. The Authority contends that our later decision in Hughey v. Grand River Dam Authority controls today's controverSy.

T10 Boyd is distinguishable from this cause. Boyd's widow brought an action under the Federal Tort Claims Act against the U.S. Army Corps of Engineers (Corps) after her husband was hit by a motor boat while swimming in a lake under its supervision. The question certified to us there was whether our recreational-use statute applied to afford immunity to the United States? Boyd dealt with a federal agency whose statutorily authorized powers encourage its operation of public parks and recreational facilities, including the assessment of fees for the use of developed recreation sites and facilities. The Corps charged fees for lake activities and, in addition to exacting a flat rental rate for various concessions, obligated some commercial lessees to consign (to the Corps) an additional graduated rent based on a percentage of its income from sales and services. We held that under these facts the Corps was precluded from invoking the immunity provisions of the RL UA.

{11 The Authority contends the facts and legal issues in today's controversy more closely parallel those that spawned the litigation in Hughey. There two boaters drowned after their motor boat collided at night with the bridge in contest here, and the decedents' representatives sought to recover from the Authority. Our pronouncement in Hu-ghey was twofold. We first held that the Authority, whether viewed as a private entity or as an instrumentality of the State, could take advantage of the immunity from premises liability provided by the RLUA. Second, although we determined that neither of the Act's two immunity exeeptions applied under the facts demonstrated in the record, Hu-ghey established that "the type of commercial activity that takes a landowner out of the purview of $ 1301-315 immunity must be conmected with the inwitees' recreational use of the lands or waters." Commercial activity unrelated to land/water use by invited guests is not a bar to immunity. The for-profit activity at the center of the controversy in Hughey-the Authority's generation of electricity-was held to have had no "profit-related nexus to the admitted public's presence wpon the premises or with its free wse of the locus delicti."

112 Our review of Boyd and Hughey reveals the cases address two different governmental entities, operating under two different legislative frameworks, only one of which had a direct financial interest in the income generated by its lessees. Mustain's attempt to rely on Boyd is unavailing. Today's controversy deals neither with the Authority's direct commercial interest in a percentage of its lessees' profits ror with lake-user fees as in Boyd. We must hence rely here on the distinguishing feature of Hughey as outcome-determinative for today's answer to the question before us.

B.

The Authority's Assessment of Dock-Permit Fees and Miscellaneous Rents Does Not Constitute Commercial Activity Within the Meaning of the RLUA Immunity Exception.

$13 Having settled that our pronouncement in Hughey governs Mustain's first theory of recovery, we turn to Mus-tain's assertion that the Authority's commercial activities take it out of the immunity otherwise extended by the RLUA. Applying the test developed in Hughey, the question here is whether the Authority's collection of dock-permit fees and miscellaneous rents creates a profit-related nexus to the admitted public's presence upon the premises or with its free recreational use of the locus delicti?

14 The terms of the RLUA do not prohibit the Authority from engaging in commercial or other for-profit activity. Section 1301-315(C) operates to remove from the Authority its immunity protection only when its for-profit activities are connected to (1) the admitted public's presence upon the premises or (2) its free use of the locus delicti. We must examine today's evidentia-ry materials to see if an impermissible nexus exists.

115 The collection of dock-permit fees is not, as plaintiff asserts, directly connected and inextricably intertwined with one's recreational use of the park or lake. Dock permit fees are issued against, and paid solely by, dock owners, not by the admitted public. Certainly those who use the park area for non-lake recreational activities are not impacted by the Authority's collection of dock fees. Even those who use the lake for recreational purposes have no inevitable connection to the docks or dock permit fees. It is entirely possible-and even likely-for a boater to launch a craft onto the water and enjoy the use of the lake without utilizing either a public or private dock. The Authority's assessment of commercial- and private-dock permit fees is neither based upon nor connected to the public's admission to the lake or park premises.

116 That the public's recreational use of the district's land or lakes is to be free to the public is expressed plainly and repeatedly by the terms of enabling legislation. The text of 82 0.9.1991 § 875(A) begins with this proposition and states "[t]he district shall not prevent free public use of its lands and lakes for recreation purposes ...". Section 875(B) maintains this theme and provides "no charge shall ever be made to the public for right to engage in hunting, fishing, boating or swimming in said lakes, ... except that the Authority may prescribe an anmual fee for the issuance or renewal of a permit for a private amchorage, wharf, dock or boathouse." The Authority's statutory text requires that the public's recreational use of the water and land be without charge and, in the same sentence, authorizes it to collect permit fees for docks open for the public's use. Further text of the enabling act reveals that § 875(C) permits commercial establishments to keep for hire or operation various recreational water devices on lake waters once permits have been obtained. When drafting the Authority's enabling legislation, the legislature plainly did not view the right to exact permit fees from private or commercial enterprises to comprise an indirect fee to lake users or otherwise interfere with the public's free use of the lake. Neither do we.

17 We can perceive of no commercial or other for-profit nexus to arise between the Authority's statutorily-authorized collection of dock-permit fees and the admitted public's access to, or its free use of, the lake premises. The Authority is a not-for-profit agency whose statutory authorization permits the collection of permit fees for the operation and equipping of the Authority's Lake Patrol. Mustain has presented no evidentiary material to indicate the Authority receives a percentage of revenues from any dock owner which would ereate a profit-related nexus to the public's use of the lake. This distinguishes this case from Boyd. We hence hold the Authority's exaction of dock-permit fees from owners does not amount to a commercial or other for-profit endeavor contemplated by the terms of § 1801-815(C).

IV.

BECAUSE THE AUTHORITY IS GOVERNED BY THE TERMS OF THE GTCA, MUSTAIN'S THEORY OF RECOVERY-THAT THE AUTHORLTY'S ACTIONS WERE DELIBERATE, WILLFUL OR MALICIOUS-DOES NOT BRING IT WITHIN THE PURVIEW OF LIABILITY IMPOSABLE UNDER THE ACT, EVEN IF IT IS CORRECT.

118 Mustain's other argument on cer-tiorari challenges COCA's holding that the Authority's liability (on her other theory of recovery)-that her evidentiary materials present a question of fact as to whether the Authority's failure properly to mark the bridge and warn lake users of its danger was so reckless as to constitute deliberate, willful, or malicious conduct-need not be addressed because it is controlled by the terms of the GTCA. She contends this theory of her claim against the Authority is not subject to the GTCA. This is so because 82 O.8.1991 § 862(l) adds to the list of powers granted to the Authority the right "to sue and be sued in ... tort." The quoted language, she urges, stands as a waiver of sovereign immunity. In her view, because the provision in question predates the GTCA's enactment, and because the legislature has not repealed that language, § 862(F) operates to control her claim.

1 19 The common-law doctrine of sovereign immunity was abrogated in 1983 by this court's pronouncement in Vanderpool v. State. There we held that in the absence of a statute conferring immunity, the state, its political subdivisions and employees acting within the seope of their employment would stand liable in tort in the same manner as a private individual or corporation. The legislature promptly responded by adopting the GTCA, which codified its version of sovereign immunity for the state, its political subdivisions, and for all their employees acting within the seope of employment. Governmental immunity of the state and its political subdivisions is waived "only to the extent and in the manner provided" in the Act.

20 Central to Mustain's argument is the question whether the Authority is a state entity governed by the terms of the GTCA. While our holding in Hughey did not call for a resolution of this first-impression question, we address it today. A review of the relevant statutes and case law leads us to the conclusion that the Authority is indeed covered by that act's provisions. Section 152 of the GTCA defines what instrumentalities are to be included within the term "State." Among those listed is an "agency." The legislature has declared the Authority to be "a governmental agency of the State of Oklahoma," and we, as well, have recognized the Authority's status as an agency of state government. We hence hold the Authority is a governmental entity intended to be encompassed within the protective cloak of the GTCA.

121 Having decided that the GTCA applies to the Authority, we now examine Mus-tain's theory to see if it falls under the Act's purview. The GTCA makes a distinction between a government employee acting within the scope of employment and one who does not. Section 153(A) of the GTCA rules out the State's liability "for any act or omission of an employee acting outside the scope of his employment." An employee whose acts are malicious, willful, wanton and in bad faith is not acting in the seope of his employment. As an artificial legal entity, the Authority can act solely through its employees. If Mustain's characterization of the actions by the Authority's employees in this case is correct and sustainable by proof, those actions by the agents must be considered as falling outside the seope of their employment. Because Mustain's claims against the Authority are governed by the GTCA, she cannot recover against the Authority for injuries occasioned by deliberate, willful or malicious conduct of its employees.

122 We turn to Mustain's final assertion-that her claim against the Authority is nevertheless not subject to the GTCA because the provisions of 82 0.S.1991 $ 862(F) authorize tort actions against the Authority. We note first that the "sue and be sued" phrase on which plaintiff relies was enacted at a time when the common-law doctrine of sovereign immunity was in force. We have held that this language does not preclude the government's immunity but is confined in meaning to suits that are cognizable at law. It neither confers on plaintiff a greater right to bring an action than otherwise available nor operates to extend anyone's legal liability.

123 Mustain maintains legislative intent is unclear concerning which statutory provision controls her claim because the legislature, at the time it enacted the GTCA, did not repeal its earlier provisions that authorized tort suits against the Authority. Generally, statutes addressing the same subject matter are to be construed in a manner which reconciles differing provisions and imparts to each of them an intelligent effect. Legislative repeals may not be implied. It will not be presumed that the legislature, in the enactment of a subsequent statute, intended to repeal an earlier one, unless it has done so in express terms. Our application of eanons of statutory construction is in this instance unnecessary. This is so because the legislature's intent that the GTCA supersede § 862(F) can be readily ascertained from the plain language of the former.

124 The legislature could not have been clearer in expressing its intent that the GTCA form the sole, comprehensive plan for compensating those injured in their person or property by tortious acts of the state, a political subdivision, or of their employees. Section 153 of the Act expressly provides that liability "shall be exclusive and in place of all other liability of the state, a political subdivision or employee at common law or otherwise." Its Section 170 mandates "Ithis act is exclusive and supersedes all home rule charter provisions and special laws on the same subject heretofore, and all acts or parts of acts in conflict herewith are repealed." COCA correctly noted that whatever liability the Authority may have borne before the GTCA was enacted, its present legal accountability is controlled by that Act.

v.

SUMMARY

25 The injuries sustained by plaintiff in today's controversy are indeed tragic, but the burden for bearing loss does not fall upon the Grand River Dam Authority. Neither of the Recreational Land Use Act's two exceptions to immunity operates here to remove the Authority from the Act's purview of liability protection. The commercial-activity exception is not triggered by the Authority's collection of commercial, and private-dock permit fees. No "profit-related nexus" exists between the Authority's dock permit-fee assessments and the public's presence upon, or free access to, lake or park premises. Plaintiff's reliance on the Act's other claimed exception-that of bearing liability for deliberate, willful or malicious actions of Authority employees-is likewise of no avail. The Authority is a state agency. Because it falls under the aegis of the Governmental Tort Claims Act, it bears no liability for the willful conduct of its officials.

126 On certiorari previously granted upon Mustain's petition, the Court of Civil Appeals' opinion is vacated and the nisi prius order, insofar as consistent with today's pronouncement, is affirmed.

1 27 WATT, C.J., V.C.J., HODGES, LAVENDER, HARGRAVE, BOUDREAU and WINCHESTER, JJ., concur.

1 28 KAUGER and SUMMERS, JJ., concur in part and dissent in part.

      . Personal water crafts are commonly called "jet skis."

      . The Authority cites to the pertinent terms of enabling legislation, 82 O.S.1991 § 875(B), which provide "no charge shall ever be made to the public right to engage in hunting, fishing, boating or swimming in said lakes." (textual abbreviation supplied)

      . Today's certiorari deals only with Mustain's claims against the Authority. Appellant also challenged on appeal the district court's ruling denying her request for additional time for discovery. COCA's opinion addressed this issue when it affirmed the nisi prius decision. Neither party raised it again on certiorari. An issue tendered and decided on appeal but not repressed by petition or counter-petition for certio-rari stands abandoned. See the provisions of Rule 1.180(b), Supreme Court Rules, 12 O.S. 2001, Ch. 15, app.1. Hough v. Leonard, 1993 OK 112, ¶¶ 15-17, 867 P.2d 438, 445-56.

      . The purpose of the Recreational Land Use Act, as stated in 2 O.$.1991 § 1301-315(A), is to "encourage landowners and lessees to make available land, water areas, park areas and lake reservations for outdoor recreational purposes by limiting their liability to persons going upon ... these lands." (textual alteration supplied) The Act provides for two exceptions to its immunity provisions. The first is found in § 1301-315(C). It states:
      C. This section shall not apply if there is any charge made or usually made by entering or using such park area, or any part thereof, or if any commercial or other activity for profit is conducted on such park area, or any part thereof.

      . The second immunity exception expressed in 2 0.$.1991 § 1301-315(E) provides:
      This act does not relieve any person of liability which would otherwise exist for want of ordinary care or for deliberate, willful or malicious injury to persons or property. The provisions hereof shall not be deemed to create or increase the liability of any person.
      If "reckless indifference" to the rights of others is meant, gross negligence is deemed to be equivalent to a willful tort. Absent an explanation we must assume plaintiff meant "reckless indifference" as synonymous with past wrongdoing. Wootan v. Shaw, 1951 OK 307, ¶ 10, 237 P.2d 442, 447, 205 Okl. 283; Graham v. Keuchel, 1993 OK 6, ¶ 52, 847 P.2d 342, 361-62. See part IV, infra, where we discuss the impact of willful negligence.

      . The relevant provisions of the invoked statute of repose, 12 0.$.1991 § 109, state:
      No action in tort to recover damages
      (i) for any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property,
      (ii) for injury to property, real or personal, arising out of any such deficiency, or
      (iii) for injury to the person or for wrongful death arising out
      of any such deficiency, shall be brought against any person owning, leasing, or in possession of such an improvement or performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement more than ten (10) years after the substantial completion of such an improvement.

      . For the text of § 1301-315(E) see supra note 6.

      . The Authority invoked the terms of the Governmental Tort Claims Act, 51 O.S$.1991 § 151 et seq., which provide in pertinent part:
      ''The state or political subdivision shall not be lable if a loss or claim results from:

      9. Entry upon any property where that entry is expressly or impliedly authorized by law; 10. Natural conditions of the property of the state ... [or] deh ae ar ake tk
      13. Inspection powers or functions, including failure to make an inspection, review or approval, or making an inadequate or negligent inspection, review or approval of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety, or fails to conform to a recognized standard ..." (textual alteration supplied)

      . The trial court ultimately sustained a motion to dismiss filed by the Authority and entered judgment in its favor on Mustain's claim, making the rulings required by 12 0.$.2001 § 994(B) for an appealable disposition.

      . Although COCA's' affirmance of the nisi prius order was based on the two reasons stated, its opinion also addressed plaintiff's contention that an alternative statutory analysis of the RLUA indicates the Act does not apply to the Authority. The court observed that Hughey, infra note 17, established the RLUA governs the Authority and applies to collisions with this bridge structure.

      . Myers v. Missouri Pacific Railroad Co., 2002 OK 60, ¶ 9, 52 P.3d 1014, 1018.

      . Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455-56.

      . Russell v. Bd. of County Comm'rs, 1997 OK 80, ¶ 7, 952 P.2d 492, 497.

      . De novo review is utterly nondeferential. It ascribes no weight to a lower tribunal's findings. Myers, supra note 12 at 19 at 1018. Mahan v. NTC of America, 1992 OK 8, ¶ 2, 832 P.2d 805, 808 (overruled on other grounds) (Opala, C.J. concurring).

      . Boyd v. U.S. ex rel. U.S. Army Corps of Engineers, 1992 OK 51, 830 P.2d 577.

      . Hughey v. Grand River Dam Authority, 1995 OK 56, 897 P.2d 1138.

      . The terms of 16 U.S.C.A. § 460d authorize the Chief of Engineers to construct, maintain, and operate public park and recreational facilities at water resource development projects under control of the Department of the Army.

      . The terms of 16 U.S.C.A. § 460d-3 authorize the establishment and collection of fees from the use of developed recreation sites and facilities.

      . Our holding in Boyd, supra note 16 at 12 at 578, is consistent with those in other jurisdictions where a governmental entity's agreement with a concessioner requires it to pay a fixed percentage of all revenues from operations. In Ducey v. United States, 713 F.2d 504 (1983), the Ninth Circuit differentiated the entrepreneur-type landowner, whose land is open for business reasons, from the landowner whom the statute encourages to open land on a gratuitous basis by the promise of immunity. Ducey at 511 n.8; See also, Goodman v. Juniper Springs Canoe Rentals & Recreation, Inc., 983 F.Supp. 1384, 1387 (1997).

      . Hughey, supra note 17 at ¶ 6 at 1143.

      . Hughey, supra note 17 at ¶ 6 at 1143.

      . Hughey, supra note 17 at ¶ 6 at 1143.

      . Because Hughey settled RLUA's applicability to the Authority's lake-operation activities, we need not address at lerigth plaintiff's contention that a textual analysis of § 1301-315 provisions removes her claim from the Act's ambit of authority. She asserts that Grand Lake is neither a "park area" nor a "water area leased to the state" as meant by the terms of the Act. This contention, she asserts, is supported by subsequent legislative modification of the text. Suffice it to say that, regardless of Mustain's arguments, Hughey settled the issue, and the RLUA applies to the Authority and to collisions with this very bridge structure.

      . For the terms of § 1301-315(C) see supra note 5.

      . The pertinent provisions of 82 O.$.1991 § 875(B) state:
      "All existing public rights-of-way to the areas to be flooded by the impounded waters shall remain open as a way of free public passage to and from the lakes created, and no charge shall ever be made for right to engage in hunting, fishing, boating or swimming in said lakes, and no charges shall ever be made for a permit to operate or use or for the inspection of boats and equipment, except that the Authority may prescribe an annual fee for the issuance or renewal or a permit for a private anchorage, wharf, dock or boathouse. Such fee shall be used to defray the expenses of operating and equipping the Authority's Lake Patrol. The public shall have free use of and access to the waters of the lakes for private use, and shall have the right to anchorage wharf, dock, boat-dock, houseboat and landing privileges free of charge when used for private boating, but such anchorage, wharf, dock, boatdock, houseboat and landing privileges shall only be allowed after a permit therefore has been issued." * * * (emphasis supplied)

      . The relevant terms of 82 § 875(C) provide:
      ''The district shall prescribe, in the interest of public safety, suitable rules and regulations governing the keeping for hire or operation of a boat or boats, surfboards, aquaplanes, sea-skis or similar devices for pecuniary profit or gain on the waters of the lakes. The keeping for hire or operation of a boat or boats ... for pecuniary profit or gain, on the waters of the lake, shall only be allowed after a permit therefor has been issued by the district." (textual alteration supplied)

      . Sheldon v. Grand River Dam Authority, 1938 OK 76, ¶ 19, 76 P.2d 355, 361, 182 Ok. 24.

      . For the terms of 82 O.$.1991 § 875(B) see supra note 26.

      . Mustain's assertion that the Authority's revenues exceed their expenditures for the Authority's Lake Patrol is immaterial to the issue of whether there is a profit-related link between the public's presence upon, or free access to, the recreational district and the collection of dock-permit fees.
      Plaintiff's evidentiary materials also indicate a smaller amount of funds is collected by the Authority and itemized as "Miscellaneous Rents." Because plaintiff offers no other information about these funds-from whom they are collect ed or for what purpose-we are unable to determine that there is a commercial link between them and the public's presence on the lake or park area premises which, bars the Authority's claim to immunity under § 1301-315(C).

      . The court notes the after-enacted amendments of 2 0.$.1991 § 1301-315 which do not affect this cause. These provisions are found in 2 0.$.2001 § 16-71. Section 16-71(C) provides:
      ''This section shall not apply if there is any charge made or usually made for entering or using any part of the land or area, or if any commercial or other activity for profit directly related to the use is conducted on any part of the land or area. As used in this subsection, the term "charge" shall mean the admission price or fee asked in return for invitation or permission to enter or go upon the land or area. As used in this subsection, the term "charge" shall not include a license or permit fee imposed by a governmental entity for the purpose of regulating the use of land, a water or park area, or lake reservation and shall not include hunting, fishing, boating, and other license and permit fees." (textual alteration supplied)
      Because the liability issue is decided in favor of the Authority, we need not make mention of its § 109 repose-based defense. For the terms of 12 0.$.1991 § 109 see supra note 7.

      . The text of 82 O.S. Supp.1998 § 862 adds to the Authority's powers, rights and Privileges. § 862(I) provides:
      ''The district shall have and is hereby authorized to exercise the following powers, rights and privileges:
      () To sue and be sued in its corporate name in contracts, reverse condemnation, fort, equity, mandamus and similar actions ..." (textual emphasis supplied)

      . Supra note 32.

      . Vanderpool v. State of Oklahoma ex rel. Oklahoma Historical Society, 1983 OK 82, ¶ 19, 672 P.2d 1153, 1156-57 (vitalized by the enactment of the Governmental Tort Claims Act, 51 0.8. Supp.1984 et seq.).

      . Supra note 34.

      . The text of 51 0.$.1991 § 152.1(A) provides:
      The State of Oklahoma does hereby adopt the doctrine of sovereign immunity. The state, its political subdivisions, and all of their employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts.

      . The text of 51 0.$.1991-152.1(B) states:
      ''The state, only to the extent and in the manner provided in this act, waives it immunity and that of its political subdivisions." * * * (textual alteration supplied)

      . The GTCA's definitional provisions include the term "State." The terms of 51 O.S. Supp. 1994 § 152(10) provide:
      "State" means the State of Oklahoma or any office, department, agency, authority, commission, board, institution, hospital, college, university, public trust created pursuant to Title 60 of the Oklahoma Statutes of which the State of Oklahoma is the beneficiary, or other instrumentality thereof ..." (emphasis supplied)

      . The terms of 82 0.$.1991 § 861 state:
      * * * "[The Grand River Dam Authority] shall be, and is hereby declared to be, a governmental agency of the State of Oklahoma ... with powers of government ..." * * * (textual alteration supplied)

      . Sheldon v. Grand River Dam Authority, supra note 28 at ¶ 19 at 361; Westinghouse Electric Corp. v. Grand River Dam Authority, 1986 OK 20, ¶ 14, 720 P.2d 713, 716.

      . The relevant text of 51 0.S.1991 § 153(A) provides:
      ''The state or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment ..." * * * (textual alteration supplied)

      . Martin v. Johnson, 1998 OK 127, ¶ 28, 975 P.2d 889, 895; Carswell v. Oklahoma State University, 1999 OK 102, 120, 995 P.2d 1118, 1123; Nail v. City of Henryetta, 1996 OK 12, ¶ 7, 911 P.2d 914, 916.

      . Henry v. Oklahoma Turnpike Authority, 1970 OK 232, ¶ 13, 478 P.2d 898, 901.

      . The Latin phrase "in pari materia" means "upon the same matter." This canon of construction allows statutes that are in pari materia to be construed together, so that inconsistencies in one may be resolved by examining another statute on the same subject matter. Brack's Law Dictionary 794 (7th ed.1999). Culbertson v. McCann, 1983 OK 57, ¶ 14, 664 P.2d 388, 391(citing DeGraffenreid v. Iowa Land and Trust Co., 95 P. 624, 639, 20 Okl. 687 (1908)).

      . Beavin v. State ex rel. Dept. of Public Safety, 1983 OK 34, ¶ 15, 662 P.2d 299, 302; (citing Abbott v. Board of Trustees of Oscar Rose J. College, 1978 OK 129, 586 P.2d 1098 (1978)).

      . Beavin, supra note 45 at ¶ 15 at 302.

      . The terms of 51 0.$.1991 § 153(B) are:
      The liability of the state or political subdivision under this act shall be exclusive and in place of all other liability of the state, a political subdivision or employee at common law or otherwise.


source: Caselaw Access Project

author: BUETTNER, J.

license: Public Domain

text:
    2003 OK CIV APP 39
    BIG FOUR FOUNDRIES CORP., Petitioner, v. Marcia DAVIS, Administrator, and the Workers' Compensation Court, Respondents.
    No. 98,129.
    Court of Civil Appeals of Oklahoma, Division No. 8.
    March 28, 2003.

      David P. Reid, Kelly M. Greenough, Per-rine, McGivern, Redemann, Reid, Berry & Taylor, Tulsa, for Petitioner.
    Virginia J. Goreson, Staff Attorney, Workers' Compensation Court, Oklahoma City, for Respondents.
   BUETTNER, J.

{1 The Administrator of the Workers' Compensation Court denied Big Four Foundries Corp.'s application for Own Risk Permit and revoked its own risk status for financial reasons. Big Four Foundries claims the order did not contain findings of fact or conclusions of law sufficient to allow for review and that, despite the three previous years' losses, it had consistently paid its benefits. We do not find the Administrator's order clearly erroneous in view of the competent evidence and therefore sustain.

T2 On March 1, 2002, the Workers' Compensation Court sent a certified letter to Big Four Foundries lawyer stating the Big Four Foundries had failed to show financial ability to pay compensation to its employees pursuant to the Workers' Compensation Act, 85 0.8.2001 § 1 et seq. The letter gave Big Four Foundries ten days to request a hearing to show cause why the own risk application should not be denied. Big Four Foundries did not reply to this letter and did not request a hearing to present evidence to show cause why the order of denial should not be entered.

13 Subsequently, the Administrator filed the order denying the application for own risk. The order states:

On March 1, 2002, a letter notifying Big Four Foundries Corp. that their own risk permit application for the period 2/1/2002 through 1/31/2008 would be denied for financial reasons was mailed to David Reid of Rhodes, Hieronymus, Jones, Tucker and Gable. Big Four Foundries Corp. or their representatives, were given 10 days to request a hearing before the Court Administrator to show cause why their application should not be denied. No response to the letter was received. Therefore, Big Four Foundries Corp.'s own risk permit application for the period 2/1/2002 through 1/31/2008 is denied, and the company's current own risk status is hereby revoked. The denial/revocation will become effective thirty (30) days from the date this order is filed. Big Four Foundries Corp. shall have ten (10) days from the date of this order to file an appeal to the Workers' Compensation Court En Bane.

T4 Big Four Foundries appealed to a three-judge panel of the Workers' Compensation Court contending that it was financially solvent, not delinquent on its orders, and not in default on any own risk obligations. It submitted fifty-three documentary exhibits with its request for review. For these reasons, Big Four Foundries claimed that the Administrator's order was against the clear weight of the evidence and contrary to law. The three-judge panel unanimously affirmed the order of the Administrator denying the application for own risk.

T5 The Administrator is authorized to determine whether an employer is financially capable of paying compensation to its employees (self-insurance). 85 0.8. Supp.1994 § 61. The Administrator's order may be appealed to a three-judge panel of the Workers' Compensation Court. Workers' Compensation Court Handbook, Rules of the Administrator, Rule 2, "Own Risk Employers." The three-judge panel employed the standard of review it would use from an order of the Workers' Compensation Court, ie., "not against the clear weight of evidence nor contrary to law."

T6 We have found no statutory standard of review of an administrator's order. Normally, the Workers' Compensation Court's function is to resolve a dispute between parties not associated with the court. The standard of review of a three-judge panel is whether the Order is against the clear weight of the evidence or is contrary to law. On appeal to this Court, the standard of review is whether the Order is supported by any competent evidence. An administrator's order, however, rests upon fact finding and discretion. A party who, if unhappy with the decision, may request a hearing and then may appeal the order to a three-judge panel. On appeal, the administrator is a party. The administrator's order is analogous to a final agency order. In those cases, deference is owed to the expertise of the agency or administrator to the questions before it. Under these cireumstances, we feel it is more appropriate to look to the standards of review found in the Oklahoma Administrative Procedures Act, 75 0.8. Supp.1997 § 250 et. seq., for guidance.

17 Title 75 0.8.2001 § 322 states that an agency order should be affirmed unless the substantial rights of the petitioner which have been prejudiced because the findings, inferences or conclusions, are "clearly erroneous in view of the reliable, material, probative and substantial competent evidence ... including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact...."

T8 Although Big Four Foundries failed to avail itself of its first opportunity for review, ie., by requesting a hearing to provide additional evidence to the Administrator, it nonetheless, on appeal to the three-judge panel and to this court, claimed that the evidence of its solvency and financial worthiness for own risk status, weighed mightily in its favor. The evidence in the record, however, supports the Administrator's findings of fact and her decision. The conclusions the Administrator presented to Big Four Foundries in her March 1, 2002 letter were not rebutted by Big Four Foundries. The only new evidence presented on appeal (which should have been presented to the Administrator) was a letter dated February 25, 2002 from McLaughlin Merchant Partnership to Big Four Foundries lawyer, concerning negotiations to lease or sell one of its divisions, but also stating it was unable to increase any bonds it has or provide any additional financial security. It also presented a certificate of excess insurance effective February 1, 2002 and expiring February 1, 2008 in the statutory amounts of $1,000,000 workers' compensation coverage and $3,000,000 employer's liability. Finally, it submitted a loss run summary as of January 31, 2002. All the other evidence was either part of the record or predated the opportunity for hearing. Because the order is not clearly erroneous based on the substantial evidence, we affirm the order denying the application for own risk.

19 Big Four Foundries also claims error because the Administrator did not state the basis for the decision and the standargis used. We disagree. The order plainly refers to the March 1 letter which was quite specific. Had Big Four Foundries requested the show cause hearing, it certainly could have, at that time, asked for specific findings and questioned the standards. However, the standards for own risk are statutory, as we must presume Big Four Foundries knew because of its citation to the applicable law, 85 O.S. Supp.1994 $ 61. We hold that the order was sufficiently specific to provide meaningful review and that Big Four Foundries has little to complain of because it failed to ask for any findings of fact or conclusions of law.

T10 For the reasons stated, we SUSTAIN the order of the Administrator of the Workers' Compensation Court, which was unanimously affirmed by a three-judge appellate panel of the Workers' Compensation Court.

ADAMS, P.J., and HANSEN, J., sitting by designation, concur.

      . Dear Mr. Reid:
      The Administrator of the Workers' Compensation Court has completed her review of Big Four Foundries Corp.'s application to carry its own risk for the period 2/1/2002 to 1/31/2003 and financial statements of loss for the calendar years 2000, 1999 and 1998. This letter will serve as notice that Big Four Foundries Corp.'s application will be denied for the following reasons:
      ® Net loss incurred of ($ 79,296) for the three month period ended 3/31/01
      ® Net loss incurred of ($778,720) for the ten month period ended 10/31/01
      e Net loss incurred of ($795,988) for the year ended 12/31/00
      e Net loss incurred of ($278,223) for the year ended 12/31/99
      ® Net loss incurred of ($246,336) for the year ended 12/31/98
      Big Four Foundries Corp. has failed to demonstrate its financial ability to pay or cause to be paid compensation to employees as required under the Worker's (sic) Compensation Act, Title 85 O.S. § 1 et seq.
      Big Four Foundries Corp. has ten days from the date of this notice to request a Show Cause Hearing before the Administrator of the Workers' Compensation Court to allow Big Four Foundries Corp. an opportunity to show cause why the own risk application should not be denied. Any request for a hearing shall be in writing and set forth the reasons for the request, including a description of all information which Big Four Foundries Corp. wants the Administrator to consider, and the relief requested. If Big Four Foundries Corp. fails to request a hearing within the ten day period, an Order denying the own risk permit application will be issued by the Court Administrator. If a hearing is requested, a written order either approving or denying the application shall be issued by the Administrator subsequent to the hearing. Any Order denying the own risk application shall become effective 30 days after the Order is issued.

      . 75 0.$.2001 § 322:(1) In any proceeding for the review of any agency order, the Supreme Court or the district or superior court, as the case may be, in the exercise of proper judicial discretion or authority, may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decision, are:
      (a) in violation of constitutional provisions; or
      (b) in excess of the statutory authority or jurisdiction of the agency; or
      (c) made upon unlawful procedure; or
      (d) affected by otker error of law; or
      (e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in Section 10 of this act, including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or
      (f) arbitrary or capricious; or
      (g) because findings of fact, upon issues essential to the decision were not made although requested.
      2. The reviewing court, also in the exercise of proper judicial discretion or authority, may remand the case to the agency for the taking and consideration of further evidence, if it is deemed essential to a proper disposition of the issue.
      3. The reviewing court shall affirm the order and decision of the agency, if it is found to be valid and the proceedings are free from prejudicial error.


author: ORME, Judge: THORNE, Judge

text:
    2003 UT App 46
    Leopoldina OSEGUERA, Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE, Defendant and Appellee.
    No. 20010099-CA.
    Court of Appeals of Utah.
    Feb. 21, 2003.
    Loren M. Lambert, Arrow Legal Solutions, Midvale, for Appellant.
    Gary D. Josephson, Petersen & Hansen, Salt Lake City, for Appellee.
    Before JACKSON, P.J., ORME and THORNE, Jr., JJ.
   OPINION

ORME, Judge:

1 Leopoldina Oseguera appeals the trial court's denial of her motion under rule 60(b)(6) of the Utah Rules of Civil Procedure for relief from a judgment improperly entered against her. Because the trial court should have set aside the judgment when its mistake was called to its attention, we reverse.

BACKGROUND

12 The facts determinative of this appeal are not in dispute. Oseguera was involved in a car accident for which she was not at fault. The responsible party's insurance company paid Oseguera $65,600. Oseguera then initiated a claim with her own insurance company, Farmers Insurance Exchange, under her underinsured motorist coverage. Oseguera and Farmers could not agree on the amount Farmers owed Oseguera, so they submitted the dispute to arbitration as required in their contract.

T3 After the arbitrator returned his findings of fact and arbitration award, Oseguera filed a complaint to partially vacate the arbitration award, and Farmers filed an answer. Oseguera then filed a motion for summary judgment, and Farmers responded by filing a motion under rule 56(F) of the Utah Rules of Civil Procedure, the thrust of which was that the court should not rule on Oseguera's summary judgment motion until the arbitrator's deposition had been taken.

T4 On February 29, 2000, without oral argument or notification to the parties, and without any request to submit Oseguera's summary judgment motion for decision pursuant to rule 4-501(1)(D) of the Utah Code of Judicial Administration, the trial court entered judgment denying Oseguera's motion to partially vacate the arbitration award, summarily affirming the arbitration award, and denying Farmers's rule 56(f) motion. The court's sua sponte entry of judgment precluded the usual circulation among the parties of a proposed judgment and the opportunity to object prior to its entry. See Utah Code Jud. Admin. R4-504(1), (@). The court's sua sponte entry of judgment also precluded notice of entry of the judgment from being given in the usual course. See Utah R. Civ. P. 58A(d). And the court did not independently notify the parties of its intended consideration of the pending motions or of its entry of the February 29, 2000, judgment. Rather, on May 2, 2000, the trial court set a scheduling conference and oral argument for June 2, 2000.

15 On June 2, 2000, when she appeared for the scheduling conference and oral argument noticed up by the court, Oseguera learned for the first time of the judgment entered against her months before. On June 29, 2000, she filed a notice of appeal from the February 29 judgment to the Utah Supreme Court, and the Supreme Court summarily dismissed that appeal as untimely, it having been filed more than thirty days following entry of the judgment. See Utah R.App. P. 4(a).

1 6 Oseguera then filed with the trial court a motion, under rule 60(b)(6) of the Utah Rules of Civil Procedure, for relief from the February 29 judgment. Without having received a response from Farmers to Osegu-era's rule 60(b) motion or a notice to submit the motion for decision, the trial court denied Oseguera's rule 60(b) motion without oral argument. Oseguera appealed to the Utah Supreme Court, and the Supreme Court transferred that appeal to this court. See Utah Code Ann. § 78-2-2(4) (1996).

ISSUE AND STANDARD OF REVIEW

7 Oseguera asks this court to reverse the trial court's denial of her rule 60(b) motion. "'A trial court has discretion in determining whether a movant has shown [rule 60(b) grounds], and this Court will reverse the trial court's ruling only when there has been an abuse of discretion."" Ostler v. Buhler, 957 P.2d 205, 206 (Utah 1998) (quoting Larsen v. Collina, 684 P.2d 52, 54 (Utah 1984)).

ANALYSIS

T8 Rule 60(b), subsections (1) through (5), give a number of specific reasons for which a party may be relieved from an adverse judgment. Subsection 60(b)(6) then provides that "[oln motion and upon such terms as are just, the court may in the furtherance of justice relieve a party ... from a final judgment ... for ... any other reason justifying relief from the operation of the judgment." Utah R. Civ. P. 60(b)(6).

T9 "The most common 'other reason' for which courts have granted relief [under rule 60(b)(6)] is when the losing party fails to receive notice of the entry of judgment in time to file an appeal." 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2864 (2d ed.1995). See Tubbs v. Campbell, 731 F.2d 1214, 1215-16 (5th Cir.1984) (per curiam); Buckeye Cellulose Corp. v. Braggs Elec. Constr., 569 F.2d 1036, 1038-39 (8th Cir.1978) (per curiam); Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 500 F.2d 808, 809-10 (D.C.Cir.1974) (per curiam); Radack v. Norwegian Am. Line Agency, Inc., 318 F.2d 538, 542-43 (2d Cir.1963). However, in order to merit relief from judgment under rule 60(b)(6) for lack of notice, the moving party must also have "shown diligence in trying to determine whether judgment had been entered" or have been "actually misled as to whether there had been entry of judgment." 12 James Wm. Moore et al., Moore's Federal Practice § 60. A8[6][c] (8d ed.2002). See, e.g., Tubbs, 781 F.2d at 1215-16; Buckeye, 569 F.2d at 1038. Furthermore, the movant must file her rule 60(b)(6) motion within a reasonable time after learning of entry of the judgment. See, e.g., Expeditions Unlimited, 500 F.2d at 810.

110 Although we review rule 60(b) determinations under an abuse of discretion standard, see Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110, ¶ 9, 2 P.3d 451, there are situations where "the result [under rule 60(b)] is foreordained and it would be an abuse of discretion ... to deny relief" 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2857 (2d ed.1995). At least two federal cireuits have held that when a party has lost the right to appeal because she was not notified of the entry of judgment against her, despite her diligent efforts to stay apprised of the status of her case, or because of being misled, "justice demands" that she be afforded relief under rule 60(b)(6) in order to preserve her right to appeal. Expeditions Unlimited, 500 F.2d at 809. Accord Buckeye, 569 F.2d at 1038. We agree with this doctrine and thus conclude that denial of relief to Oseguera was an abuse of discretion.

' 11 It is undisputed that Oseguera did not receive notice of the February 29, 2000, judgment until June 2, 2000. It is also clear that the parties were misled by the trial court setting a scheduling conference and oral arguments for June 2. Given that rule 4-504 would allay any reasonable concern that Ose-guera was at risk that the court would rule on the summary judgment motion sua sponte, and in the absence of a proper request to submit for decision, there is no question that Oseguera was "actually misled" by the court, wholly aside from the eventual notice of hearing on motions already decided. Even if Oseguera should have anticipated the possibility that the court would act without a request to do so and without notice to the parties-as the dissent suggests is permitted by case law-Oseguera would have had no reason to fear the entry of judgment against her. As previously explained, Oseguera had sought judgment in her favor and Farmers had opposed that request, but Farmers had not at that juncture sought the entry of judgment in its favor. Thus, Oseguera had no reason to believe such a judgment could be forthcoming in view of what was before the court and no reason to check periodically to see if such an unrequested judgment had somehow been entered. See note 3, supra. Finally, given that she filed a good faith appeal within one month of learning of the February 29, 2000, judgment, and then filed her rule 60(b)(6) motion within seven weeks of final dismissal of that appeal, we believe Oseguera's rule 60(b) motion was made within a reasonable time.

CONCLUSION

1 12 When the trial court's mistakes-not counsel's-are the reason a judgment is improvidently entered and the entry goes undetected, even if it remains undetected for some time, the court should be anxious to do whatever needs to be done to fix the mistake as soon as it is called to the court's attention. It did not do so here. The trial court thus exceeded the bounds of sound discretion in denying Oseguera's motion under rule 60(b)(6) for relief from judgment. We therefore reverse the trial court's denial of that motion and remand for such proceedings as may now be appropriate.

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

THORNE, Judge

(dissenting):

T 14 I respectfully dissent from the majority's decision to reverse the trial court's order.

[ 15 The trial court, perhaps unwisely, denied Oseguera's rule 60(b) motion. However, we must remember that " '[aln appeal of alrJule 60(b) order addresses only the propriety of the denial or grant of relief. The appeal does not, at least in most cases, reach the merits of the underlying judgment from which relief was sought!" Franklin Covey Client Sales v. Melvin, 2000 UT App 110, ¶ 19, 2 P.3d 451 (citation omitted). "'Appellate review of [rJule 60(b) orders must be narrowed in this manner lest [rfJule 60(b) become a substitute for timely appeals'" Id.

1 16 While I am sympathetic to Oseguera's position, she has failed to present even the most rudimentary argument supporting her appeal of the trial court's denial of her rule 60(b) motion. See, e.g., Franklin Covey, 2000 UT App 110 at ¶ 25, 2 P.3d 451 (refusing to address the defendant's rule 60(b) claim, stating "[appellant] has not even attempted to present 'mistakes' for which relief may be obtained under rule 60(b)(1)"). Instead, Ose-guera argues only that the trial court improperly decided the legal merits of her underlying claim. Notwithstanding Oseguera's plea to consider her underlying claim, the merits are not properly before this court. In fact, the record clearly shows that Oseguera has already attempted to present this claim to the Utah Supreme Court, and the supreme court subsequently denied it as untimely. It is not now appropriate for this court to treat the claim in a different manner.

117 Further, had Oseguera properly presented an argument concerning the trial court's denial of her rule 60(b) motion, I would still affirm. We afford trial courts broad discretion in ruling on rule 60(b) motions and will disturb such rulings only in the face of an abuse of that discretion. See Birch v. Birch, 771 P.2d 1114, 1117 (Utah Ct.App.1989). While we have not addressed previously the effect that a failure to receive notice has under our rule 60(b)(6), in the federal system, "[rlule 60(b) relief is unavailable when the only reason for the failure to appeal is the lack of notice of the entry of judgment." Tucker v. Commonwealth Land Title Ins. Co., 800 F.2d 1054, 1056 (11th Cir.1986). Moreover, the validity of a judgment is not affected by a finding that a party has not received notice of the judgment, see Workman v. Nagle Constr. Inc., 802 P.2d 749, 751 (Utah Ct.App.1990), and a party cannot use a rule 60(b) motion to avoid the consequences of failing to timely file an appeal. See Franklin Covey, 2000 UT App 110 at ¶¶ 23-25, 2 P.3d 451.

{18 The only exception to this general prohibition, as correctly highlighted by the majority, is found when an "appellant has exercised due diligence to ascertain whether the judgment has been entered or has given sufficient reason for the lack of such diligence." Spika v. Village of Lombard, 763 F.2d 282, 285 (7th Cir.1985). The majority interprets the second portion of this exception to include incidents where an appellant has been misled by the court. See supra ¶ 9; see also Tubbs v. Campbell, 731 F.2d 1214, 1215-16 (5th Cir.1984) (concluding that the trial court properly granted relief from judgment to the plaintiff after determining that the plaintiff had diligently made inquiries concerning the judgment and had been informed by the office of the court clerk that no judgment had been entered). I do not take issue with the adoption of this standard. I do, however, have reservations regarding the majority's application of this standard to the instant case.

119 Here, the majority concludes that Oseguera was "actually misled" by the trial court. The majority presents two "facts" to support this conclusion. First, the majority notes that Oseguera was "misled" when the trial court set a scheduling conference well after the judgment had been entered. Second, the majority concludes that the trial court "actually misled" Oseguera when it ruled on her summary judgment motion absent a notice to submit. |

1 20 I disagree with this conclusion as well as the underlying premise that Oseguera demonstrated due diligence in this process. First, the trial court entered judgment on February 29, 2000. After that date, there is nothing in the record to support a conclusion that either Oseguera or her counsel contacted the trial court concerning either the motion or the status of the case. In fact, the only record contact between Oseguera and the trial court came on April 28, 2000, more than two months after Farmers's filed a notice to submit concerning its rule 56(f) motion. The majority also relies on a May 2 minute entry setting a June 2 scheduling conference to support its determination that the court misled the parties. The conference was scheduled by a visiting judge, not the judge responsible for the summary judgment decision. Therefore, there is insufficient information in the record to support the majority's conclusions that Oseguera acted with the required due diligence, or that she had been "actually misled."

121 Second, I believe that the majority's reliance on rules 4-501 and 4-504 of the Rules of Judicial Administration is misplaced. As we have stated, "[oJnce a motion is properly made, and other parties ... have had the opportunity ... to respond, the court may act at its convenience to decide the matter. No notice to submit for decision under [rule 4-501 is required." Scott v. Majors, 980 P.2d 214, 217 (Utah Ct.App.1999) (emphasis added). Here, it is undisputed that the trial court acted without a notice to submit on Oseguera's summary judgment motion, but, the court apparently determined that enough material had been presented to render a decision. While I probably would not have acted in a similar manner, the trial court clearly has the latitude to determine how to proceed in its own courtroom. See Hartford Leasing Corp. v. State, 888 P.2d 694, 702 (Utah Ct.App.1994). Accordingly, I see nothing to support the majority's conclusion that the trial court "actually misled" Oseguera.

122 Finally, we have long held to the principle that we will not consider issues that improperly "'shift the burden of research and argument'" to this court. Smith v. Smith, 1999 UT App 370, ¶ 8, 995 P.2d 14 (citation omitted), cert. denied, 4 P.3d 1289 (Utah 2000). Oseguera's arguments on appeal were solely focused on issues not properly before this court, and she did nothing to develop an argument concerning the trial court's denial of her rule 60(b) motion. Therefore, she has shifted the burden of both argument and research to this court, forcing us to invest valuable resources to address this issue. Thus, were I to agree with the majority's analysis of the issue, I would still feel compelled to dismiss Oseguera's appeal.

123 While the trial court's actions were perhaps ill-advised, and while I acknowledge that I would have decided Oseguera's rule 60(b) motion differently, I do not believe this presents a sufficient basis to reverse the trial court's decision. Oseguera failed to argue the underlying equities of her case, the one material issue left to her at this juncture, and in so failing, I do not believe we should address her claim. Moreover, while I believe that the majority has properly read a due diligence requirement into rule 60(b)(6), I do not believe that it has properly applied this requirement to these facts. I therefore dissent from the result reached by the majority and would instead affirm the trial court's decision.

      . The arbitrator's deposition was taken on February 9, 2000, but the transcript of that deposition was not entered into the record until March 16, 2000, by Oseguera.

      . Rule 4-501(1)(D) of the Utah Code of Judicial Administration reads, with our emphasis:
      (D) Notice to submit for decision. Upon the expiration of the five-day period to file a reply memorandum [in support of any motion], either party may notify the clerk to submit the matter to the court for decision. The notification shall be in the form of a separate written pleading and captioned "Notice to Submit for Decision." The Notice to Submit for Decision shall state the date on which the motion was served, the date the memorandum in opposition, if any, was served, the date the reply memorandum, if any, was served, and whether a hearing has been requested. The notification shall contain a certificate of mailing to all parties. If neither party files a notice, the motion will not be submitted for decision.

      . This aspect of the court's judgment is especially curious. Farmers had not yet filed a cross-motion seeking affirmance of the arbitration award. Rather, it had taken the position that the court could not properly decide the matter until additional discovery had been undertaken.

      . A notice to submit Farmers's rule 56(f) motion for decision had been filed by Farmers on February 14, 2000.

      . Subsections (1) and (2) of rule 4-504, Utah Code of Judicial Administration, provide:
      (1) In all rulings by a court, counsel for the party or parties obtaining the ruling shall within fifteen days, or within a shorter time as the court may direct, file with the court a proposed order, judgment, or decree in conformity with the ruling.
      (2) Copies of the proposed findings, judgments, and orders shall be served upon opposing counsel before being presented to the court for signature unless the court otherwise orders. Notice of objections shall be submitted to the court and counsel within five days after service.

      . Rule 58A(d) of the Utah Rules of Civil Procedure reads: "Notice of signing or entry of judgment. A copy of the signed judgment shall be promptly served by the party preparing it in the manner provided in Rule 5." While the rule goes on to state that "[t]he time for filing a notice of appeal is not affected by the requirement of this provision," Utah R. Civ. P. 58A(d), failure to comply with such a requirement is highly relevant for purposes of rule 60(b), as is hereafter explained.

      . When the initial pleadings in this case were filed, the case was assigned to then Judge Dur-rant, who, early in the course of this case, was appointed to the Utah Supreme Court. Judge Lindberg issued the February 29, 2000, judgment and the order denying Oseguera's rule 60(b)(6) motion. However, the record suggests it was an unidentified "visiting judge" who, on May 2, 2000, set the misleading scheduling conference and oral argument for June 2, 2000.
      The parties had filed several pleadings after February 29, apparently still unaware of the judgment entered on that date. Specifically, Farmers filed on March 3 a cross-motion for summary judgment. Oseguera filed a response to Farmers's cross-motion for summary judgment on March 16. Then, on March 23, Farmers filed a reply memorandum in support of its cross-motion for summary judgment and a request for a hearing on that motion. And on March 28, Farmers filed a notice to submit its summary judgment motion for decision.
      It appears likely the "visiting judge," also unaware of Judge Lindberg's February 29, 2000, judgment, scheduled the June 2 oral arguments in response to Farmers's March 28 notice to submit. In any event, on May 2 the parties remained oblivious to the February 29 judgment.

      . Oseguera's motion purportedly relied on rule 60(b)(7); however, there is now no rule 60(b)(7) in the Utah Rules of Civil Procedure. Current subsection (6) was previously numbered as subsection (7), until a 1998 amendment to the rule eliminated former subsection (4), at which time the former subsection (7) became the current subsection (6). The trial court properly construed Oseguera's motion as a request for relief under rule 60(b)(6), and, given the rule's history, we of course do the same.

      . In the court's written ruling on Oseguera's rule 60(b)(6) motion, the trial court acknowledged ''that the parties may not have been timely notified of its Memorandum Decision dated 2-29-00 affirming the Arbitrator's Award and denying Plaintiff's Motion for Summary Judgment" and "apologize[d] to the parties for any inconvenience that resulted." The court also stated, however, that "it [had] repeatedly denied requests to set additional pretrial conferences on the basis that judgment had already entered in the case," and that therefore "the parties cannot now claim that they were not aware of the Court's judgment, at least by May 2d."
      We are unable to affirm the trial court's denial of Oseguera's rule 60(b)(6) motion on the basis relied on by the trial court. It is undisputed on appeal that there were no requests for pretrial conferences that were denied on the basis that "judgment had already entered in the case." Far from learning by May 2 that judgment had been entered, it was on that date that the court, however inadvertently, misled the parties about the existence of the judgment by setting a scheduling conference and oral arguments for June 2, 2000.

      . Subsections (1) through (5) read:
      On motion and upon such terms as are just, the court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application....
      Utah R. Civ. P. 60(b)(1)-(5).

      . Our reliance on treatises and case law interpreting Federal Rule of Civil Procedure 60(b)(6) is well-founded. See Winegar v. Slim Olson, Inc., 122 Utah 487, 491, 252 P.2d 205, 207 (1953) ("'Since [the Utah Rules of Civil Procedure] were fashioned after the Federal Rules of Civil Procedure, it is proper that we examine decisions under the Federal Rules to determine the meanings thereof.").
      We do note, however, that due to a 1991 amendment to rule 4(a) of the Federal Rules of Civil Procedure, federal law no longer allows for relief from a judgment under rule 60(b)(6) on grounds of lack of notice of the entry of judgment. See Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357, 359-61 (8th Cir.1994); 12 James Wm. Moore et al., Moore's Federal Practice § 60.48[6][c] (3d ed.2002). Federal rule 4(a)(6) now "explicitly deals with the situation of when a party has missed the deadline for filing an appeal because the clerk failed to give the notice required under [federal civil procedure rule Ti(d)." Moore, § 60.48[6][c]. Because Utah has not adopted a rule analogous to federal rule 4(a)(6) and has no rule 77(d), we regard the treatise discussions and federal case law holdings regarding rule 60(b)(6) prior to 1991 as persuasive authority.

      . At first blush, an older Utah Supreme Court case, In re Bundy's Estate, 121 Utah 299, 241 P.2d 462 (1952), could seem contrary to our holding here. However, the case is easily distinguished. In Bundy, the "[alppellants' counsel was out of town and received no notice or copy of the findings from the Court Clerk who evidently failed to mail such notice and findings even to counsel's local office." Id. at 309, 241 P.2d at 467. The appellants contended on appeal "that under these facts they should be relieved of their default ... under the provisions of Rule 60(b)[.]" Id. at 309-10, 241 P.2d at 467. The Supreme Court stated that "[this contention is not sound" and that the appellants' failure to file their post-judgment motions within the allowed time period "was not the fault of the court or its clerk." Id. at 310, 241 P.2d at 467.
      The Bundy appellants expressly relied on subsection (1) of rule 60(b), rather than what is now subsection (6). See id. at 309-10, 241 P.2d at 467. Furthermore, the Bundy decision contains no facts indicating whether the appellants exercised diligence to stay apprised of the status of their case. See id. at 302-10, 241 P.2d at 464-67. Indeed, the Court's statement that the appellants' failure to file their postjudgment motions within the allowed time period "was not the fault of the court or its clerk," id. at 310, 241 P.2d at 467, suggests otherwise. Unlike in the instant case, nothing in the Bundy opinion suggests counsel would have been unaware that the court was about to enter a judgment. Conversely, in the instant case all the signals were to the contrary: a rule 56(f) motion was apparently still pending, neither party had requested that the motion for summary judgment be submitted for decision, and the court eventually gave notice that a hearing would be held.

      . Oseguera's rule 60(b) motion clearly should have been filed sooner, but given rule 60(b)'s benchmark deadline of three months, see Utah R. Civ. P. 60(b) (''The motion shall be made within a reasonable time and for reasons (1), (2), or (3), not more than 3 months after the judgment, order, or proceeding was entered or taken."), we cannot say the delay was unreasonable under all the circumstances.

      . After the trial court granted summary judgment in favor of Farmers based solely on Osegu-era's motion and failed to notify either side of the decision, Oseguera appealed to the Utah Supreme Court. However, because Oseguera's appeal was untimely, the court dismissed the ap'peal. Oseguera then filed her rule 60(b) motion in the trial court, which the trial court summarily denied. In its order, the trial court ruled that summary judgment had been decided properly and that the parties should have known of the judgment.

      . Rule 60(b)(6), by its own terms, grants solely to the trial court, not the Court of Appeals, the equitable power to repair decisions that may be unfair to a party. See Utah R. Civ. P. 60(b)(6) ("On motion and upon such terms as are just, the [trial] court may in the furtherance of justice relieve a party ... from a final judgment, order, or proceeding ...." (emphasis added)). Here, assuming the majority's characterization of Ose-guera's claim is correct, Oseguera argued that it was unjust for the trial court to grant summary judgment in favor of Farmers absent Farmers's cross-motion for summary judgment, its opposition to Oseguera's motion, and a notice to submit on one or both summary judgment motions. However, in ruling on Oseguera's 60(b) motion, the trial court clearly determined that the result would not have changed had the additional documents been submitted. Thus, the trial court implicitly determined that justice had been done and denied the motion, in essence finding that Oseguera had failed to satisfy the threshold requirement for 60(b) relief.
      While I agree with the majority position that under certain circumstances the trial court can abuse its discretion, I believe those situations are very rare. See, e.g., Tubbs v. Campbell, 731 F.2d 1214, 1215-16 (5th Cir.1984). Moreover, this court should resist the urge to superimpose its judgment over that of the trial court merely because we disagree with the result reached. Decisions regarding 60(b) motions are at their very core decisions of equity, and not law. Absent extraordinary circumstances, the trial court is the only court in a position to properly assess the equities of these situations and determine whether justice will be furthered through the granting of a rule 60(b) motion.

      . Whether under federal rule 60(b) or 4(a)(6), relief for failure to receive notice is limited, discretionary, and left to the trial court to decide. Compare Spika v. Village of Lombard, 763 F.2d 282, 285 (7th Cir.1985) (affirming the trial court's denial of relief under rule 60(b)) and Tubbs, 731 F.2d at 1216 (affirming the trial court's grant of relief under rule 60(b)), with Nowak v. INS, 94 F.3d 390, 391 (7th Cir.1996) {affirming the trial court's denial of relief under rule 4(a)(6) and rule 60(b) and noting that rule 4(a)(6) of the Federal Rules of Civil Procedure commends to the discretion of the trial court the decision to extend the time for appeal in response to a motion filed within 180 days of the judgment if the losing party did not receive timely notice).

      . I am giving Oseguera the benefit of the record, which merely states: "Motion/scheduling conference scheduled on June 2, 2000 at 9:30 AM." Neither party is identified as having requested the conference.

      . The judge who scheduled the conference was a visiting judge who may not have been familiar with the case. Thus, Oseguera was not divested of her due diligence obligation concerning her pending motion or the posture of Farmers's pending rule 56(f) motion. Moreover, Oseguera was aware that Farmers's notice to submit its 56(f) motion had been pending for well over 60 days, which should have put her on further notice of her responsibility to investigate the court's decision.

      . I share in the majority's concern with the trial court's actions in this matter. After sua sponte ordering summary judgment in favor of Farmers, the trial court failed to notify either party of the decision for at least three months, thereby precluding Oseguera from filing a timely appeal. While it is likely that Oseguera's underlying claim was destined to fail, I can discern no substantial reason for the trial court's decision to deny Oseguera's rule 60(b) motion. The court could have easily granted Oseguera's motion and then reentered the summary judgment decision at that time, thus permitting Oseguera the opportunity to pursue appellate review of her underlying claim.


author: THORNE, Judge.

text:
    2003 UT App 67
    John GROBERG and Shauna Groberg, Plaintiffs and Appellants, v. HOUSING OPPORTUNITIES, INC., a Utah nonprofit corporation; Margaret M. Dahle; John L. Krueger; and Granite Credit Union, a Utah corporation, Defendants and Appellees.
    No. 20010754-CA.
    Court of Appeals of Utah.
    March 6, 2003.

      Bryan H. Booth, Kirton & McConkie, Salt Lake City, for Appellants.
    J. Bruce Reading, Scalley & Reading, Salt Lake City, and Rod (Gilmore, Layton, for Appellees.
    Before JACKSON, P.J., BILLINGS, Associate P.J., and THORNE, J.
   OPINION

THORNE, Judge.

11 John and Shauna Groberg appeal the denial of their mechanics lien and their claims for breach of contract and unjust enrichment. Housing Opportunities, Ine. (HOT) cross appeals, asserting that the trial court should have awarded it attorney fees. We affirm.

BACKGROUND

12 In 1996, HOI requested that the Gro-bergs grant it an easement over their property. The Grobergs requested compensation, but due to the nature of their business HOI was unable to pay for the easement. The parties, instead, entered into an "exchange" agreement, whereby HOI agreed to buy the Grobergs' house (house one) for $87,500.00, to sell the Grobergs a lot in an upcoming development, to move an existing house (house two) to that lot, and then to assist the Grobergs in obtaining financing to renovate house two. In exchange, the Gro-bergs granted HOI the easement it sought, which they agreed would stay in place even if the contract was rescinded. The parties signed a real estate purchase agreement containing the terms of the sale of house one. The real estate purchase agreement also set forth, in general terms, the agreement that the Grobergs intended to renovate house two and then purchase it.

1 3 Soon thereafter, HOI moved house two and the Grobergs entered into a home repair contract with a general contractor and started renovation. The Grobergs eventually encountered problems with the contractor, fired him, and began overseeing the renovation of house two themselves. Also, in an attempt to reduce costs, the Grobergs and their family members performed labor on the house. Unbeknownst to HOI, and outside the parameters of the home repair contract, the Grobergs began to install custom upgrades in the house. These custom upgrades exceeded the available financing and forced the Gro-bergs to use $10,285.22 of their own funds to further finance the renovation.

T4 In 1998, HOI informed the Grobergs that the purchase price of house two would be $138,000. In this letter, HOI set forth the terms of the purchase of house two and warned the Grobergs that any further increase in renovation costs would increase the purchase price of house two.

T5 In 1999, HOI informed the Grobergs that the purchase price of house two had increased to $156,532.72. This price included all the renovation costs that HOI had paid on behalf of the Grobergs as well as a $12,000 mechanies' lien filed by the general contractor. This price was considerably more than the Grobergs had expected. Frustrated with the delays and rising costs, HOI told the Grobergs that they needed to purchase house two or vacate it immediately. The Grobergs chose to exercise a provision in the real estate purchase agreement which provided:

As a further cooperative effort, if John and Shauna Groberg do not complete [renovations to house twol or they do not feel [house twol has equal value to [house one], [HOT] will exchange [house two] for [house one], returning each to its former estate as to ownership of properties and debt. However, the recorded easement across the west side of [house one's lot] shall be and forever remain in place.

(Emphasis added.)

T6 The Grobergs returned to house one but filed a mechanics' lien on house two to recover their out-of-pocket expenses spent renovating house two. HOI eventually sold house two for $149,000. HOI had paid $178,034.52 in costs to develop, administer, and renovate house two and lost approximately $24,000.00 in the sale.

T7 Subsequently, the Grobergs filed suit, seeking to foreclose their mechanies' lien and claiming breach of contract and unjust enrichment. The trial court found in favor of HOL. Specifically, the trial court found the mechanies' lien could not be foreclosed because HOI had no control over the renovation of house two and the Grobergs were equitable owners of house two with substantial control over the extent and cost of renovation. Furthermore, the court found the Grobergs "waived, released, surrendered or contracted away their [mechanics'] lien rights when they signed" the real estate purchase agreement.

T8 The court next found that the real estate purchase agreement was fully integrated except as to the purchase price of house two, the parties orally agreed that the purchase price of house two was $138,000, or, in the alternative, the November 11, 1998 letter in which HOI informed the Grobergs the house would cost $138,000 constituted an amendment to the real estate purchase agreement ratified by the Grobergs. The court rejected the Grobergs' argument that the purchase price of the house was the cost of renovation and, therefore, found that HOL had not breached the real estate purchase agreement.

T 9 The court then concluded the Grobergs failed to prove that HOI had promised to pay additional compensation for the easement if HOI did not buy house one. Finally, the court found the Grobergs did not prove that HOI had been unjustly enriched, because it found that HOI received no benefit from the sale of house two. The Grobergs appeal.

ISSUES AND STANDARDS OF REVIEW

{10 The Grobergs first argue that the trial court erred in refusing to foreclose their mechanies' lien. A determination as to whether the statutory elements of a mechanics' lien have been satisfied is a mixed question of law and fact. See Bailey v. Call, 767 P.2d 138, 139-40 (Utah Ct.App.1989) (quotations and citation omitted). The findings of fact "shall not be set aside unless clearly erroneous," and "we review [the] trial court's conclusions of law under a correction of error standard." Id. at 139 (quotations and citations omitted).

"11 The Grobergs next argue, for the first time on appeal, that HOI breached its contractual duty to sell house two for $138,000. "As a general rule, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances." State v. Brown, 856 P.2d 358, 359 (Utah Ct.App.1993).

{12 Lastly, the Grobergs argue that HOI was unjustly enriched.

Whether a claimant has been unjustly enriched is a mixed question of law and fact. We uphold a lower court's findings of fact unless the evidence supporting them is so lacking that we must conclude the finding is clearly erroneous. Furthermore, we afford broad discretion to the trial court in its application of unjust enrichment law to the facts.

Desert Miriah, Inc. v. B & L Auto, Inc., 2000 UT 88, ¶ 9, 12 P.3d 580 (quotations and citations omitted).

113 On eross-appeal, HOI argues the trial court should have awarded it attorney fees for defeating the Grobergs' claims of breach of contract and unjust enrichment. "Attorney fees are generally recoverable in Utah only when authorized by statute or contract." Prince v. Bear River Mut. Ins. Co., 2002 UT 68,¶ 52, 56 P.3d 524.

ANALYSIS

{14 The Grobergs first argue that the trial court erred when it found they were not entitled to file a mechanies' lien against house two. Pursuant to Utah Code Ann. § 38-1-3 (2001), to assert a mechanies' lien, the work must have been done "at the instance of the owner or of any other person acting by his authority as agent, contractor, or otherwise."

The Utah Supreme Court, discussing an agent's authority to bind the owner/prinei-pal under the mechaniecs' lien statute, has stated "the facts of the transaction must be explored .... [Thhe courts have often gone beyond the agreement and into the whole cireumstances ... in order to find the answer." Interiors Contracting Inc., v. Navalco, 648 P.2d 1382, 1387 (Utah 1982) (quoting Utley v. Wear, 333 S.W.2d 787, 792-93 (Mo.Ct.App.1960)). In making this evaluation, "[slo long as it can be found that the [contractor] performed the work at the instance of [the owner] under an express or implied contract ... the lien is valid." Dugger v. Cox, 564 P.2d 300, 302 (Utah 1977). If it appears the improvements are for the benefit of the owner, and performed at the instance of the owner's agent, "then it can be said with justice that the [contractor] in such case is acting for the [owner]." Zions First Nat'l Bank v. Carlson, 23 Utah 2d 395, 464 P.2d 387, 390 (1970).

Bailey, 767 P.2d at 140 (alterations in original).

115 Here, the trial court made a factual finding that HOI did not request the renovation of house two. In making its factual finding, the trial court reasoned that the renovation on house two was for the Gro-bergs' benefit, and that the Grobergs exerted control over who was to do the work and how the renovation was to be done. Based on these factual findings, the court concluded the Grobergs were not permitted to file a mechanies' lien, because their work had not been performed "at the instance of [HOIJ]." Utah Code Aun. § 38-1-3.

{116 The Grobergs challenge this factual finding. "In reviewing a factual determination, we defer to the decision of the trial court...." Nu-Trend Elec. Inc., v. Deseret Fed. Sav. & Loan Ass'n Inc., 786 P.2d 1369, 1371 (Utah Ct.App.1990). Furthermore,

[tlo successfully challenge a trial court's findings of fact on appeal, [aln appellant must marshal the evidence in support of the findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be against the clear weight of the evidence, and thus making them clearly erroneous.

Valcarce v. Fitzgerald, 961 P.2d 305, 312 (Utah 1998) (quotations and citations omitted). The Grobergs have not marshaled the evidence to show that the renovation was done "at the instance" of HOI. Thus, we defer to the trial's findings that HOI did not request the renovation of house two and that the Grobergs were not entitled to file a mechanics' lien.

117 The Grobergs next argue that HOI breached the real estate purchase agreement when it refused to sell house two and the lot to which it had been moved for $138,000. First, the real estate purchase agreement on which the Grobergs rely does not contain a purchase price for house two. The absence of this term prompted the trial court to find the real estate purchase agreement fully integrated except as to this term. After receiving evidence, the trial court found that the purchase price of house two was $138,000.

{18 At trial, the Grobergs disputed the fact that the purchase price of house two was $138,000 and, instead, argued the agreed upon purchase price was the cost of renovation. Even though the Grobergs never asked the trial court to consider the issue below, the Grobergs now argue that HOI breached its contractual obligation by not selling house two for $138,000.

119 "Utah courts require specific objections in order 'to bring all claimed errors to the trial court's attention to give the court an opportunity to correct the errors if appropriate. " State v. Brown, 856 P.2d 358, 361 (Utah Ct.App.1993) (quoting VanDyke v. Mountain Coin Mach. Distrib., Inc., 758 P.2d 962, 964 (Utah Ct.App.1988)). "This specificity requirement arises out of the trial court's need to assess allegations by isolating relevant facts and considering them in the context of the specific legal doctrine placed at issue." Id. "The 'mere mention of an issue without introducing supporting evidence or relevant legal authority does not preserve that issue for appeal." Id. (quoting LeBaron & Assoc. v. Rebel Enters., 823 P.2d 479, 483 (Utah Ct.App.1991)). "(Flor an issue to be sufficiently raised, even if indirectly, it must at least be raised to a level of consciousness such that the trial judge can consider it." Id. (quotations and citations omitted).

120 After reviewing the record, we conclude that the Grobergs did not bring this issue to the trial court's attention. Throughout trial, the Grobergs insisted the renovation cost would be the purchase price of the home and never argued that the agreed upon price was $138,000. Thus, the trial court properly found no breach of contract.

§$21 Finally, the Grobergs argue that HOI was unjustly enriched.

In order to prevail on a claim for unjust enrichment, three elements must be met. First, there must be a benefit conferred on one person by another. Second, the conferee must appreciate or have knowledge of the benefit. Finally, there must be the acceptance or retention by the conferee of the benefit under such cireumstances as to make it inequitable for the conferee to retain the benefit without payment of its value.

Desert Miriah, Inc. v. B & L Auto, Inc., 2000 UT 88,¶ 13, 12 P.3d 580 (quotations and citations omitted). The trial court found that at the time HOI sold house two and HOI had invested $173,034.52 in the house. Because the eventual cost of house two was much higher than HOI had expected and because house two sold for much less than HOI's investment in the house, we conclude that the trial court properly determined HOI had not been unjustly enriched by the Grobergs.

122 The Grobergs also argue that HOI was unjustly enriched because it obtained an easement without paying compensation. We are unpersuaded. The Grobergs entered into a real estate purchase agreement whereby they agreed to give HOI an easement. In exchange, they were given the option to purchase a fully renovated house or keep their original house. The real estate purchase agreement was clear that the casement would remain in place regardless of the Grobergs' choice. The Grobergs voluntarily entered into this real estate purchase agreement, and thus, the retention of the casement by HOI without compensation is not unjust enrichment. Cf. Bray Lines v. Utah Carriers, 739 P.2d 1115, 1117 (Utah Ct.App.1987) (concluding that "[the fairness or unfairness, folly or wisdom, or inequality of contracts are questions exclusively within the rights of the parties to adjust at the time the contract is made" (quotations and citation omitted)).

123 On cross-appeal, HOI seeks attorney fees. At trial, the Grobergs unsue-cessfully argued their breach of contract and unjust enrichment claims. HOI now claims that the trial court should have awarded it reasonable attorney fees for defeating these claims. It is well established that "[alttorney fees are generally recoverable in Utah only when authorized by statute or contract." Prince v. Bear River Mut. Ins. Co., 2002 UT 68,¶ 52, 56 P.3d 524. In light of the defeat of the mechanics' lien and the rescission of the contract, HOI has argued no contractual or statutory basis for awarding fees. Thus, the trial court had no grounds to award attorney fees and properly declined to do so.

CONCLUSION

1 24 The trial court found that the renovation of house two was not done at the request of HOI and properly refused to foreclose the mechanies' lien. The Grobergs' claim that HOL breached its promise to sell house two for $138,000 is not well taken, because the Grobergs failed to preserve this argument below. Additionally, the trial court found that HOI received no benefit from the sale of house two and the Grobergs did not dispute this finding on appeal. Thus, the trial court properly found that HOI was not unjustly enriched. Finally, HOI was not entitled to an attorney fees award for defeating the Grobergs' claims for breach of contract and unjust enrichment as there is no contractual or statutory basis for such an award. We affirm.

[ 25 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JUDITH M. BILLINGS, Associate Presiding Judge.

      . For convenience, and because there has been no material change in the statute relevant to this opinion, the most recent version of the statute is cited.

      . The Grobergs also argue the mechanics' lien is not precluded by their equitable interest in house two and that they did not waive their right to file a mechanics' lien when they signed the real estate purchase agreement. We do not address these arguments because we find the Grobergs' failure to marshal the evidence to be dispositive of the mechanics' lien issue.

      . Moreover, under the real estate purchase agreement, the Grobergs had the option to return to house one. The Grobergs chose this option. The plain language of the contract provided that: "'Where a Section of this Contract provides a specific remedy the parties intend that the remedy shall be exclusive regardless of rights which might otherwise be available under common law." In choosing to return to house one, the Grobergs elected their remedy under the contract and cannot now sue for breach. Cf. McKeon v. Crump, 2002 UT App 258,¶ 6, 53 P.3d 494 (noting that seller's failure to return earnest money deposit before filing suit is an election to keep the money as liquidated damages and precludes other remedies under the contract}.

      . Our conclusion that HOI was not unjustly enriched is premised on the trial court's factual findings regarding the sale price of house two and the amount HOI invested in house two. We defer to the trial court on these factual findings. See Desert Miriah, Inc. v. B & L Auto, Inc., 2000 UT 83,¶ 12, 12 P.3d 580. Moreover, on appeal, the Grobergs do not challenge these factual findings nor marshal the evidence against them.

      . The Grobergs also argue that the trial court misapplied the law when it found that the retention of a benefit without compensation is equitable unless a "misleading act, request for service, or the like by the party who retained the benefit" is proven. The Grobergs argue that they are not required to prove such a misleading act because, unlike the parties in Knight v. Post, 748 P.2d 1097 (Utah Ct.App.1988), HOI and the Grobergs were in privity of contract. See generally id., at 1098, 1101. Because we affirm the trial court's finding that HOI received no benefit and dispose of the unjust enrichment claim on this basis, we do not address the Grobergs' claim that the trial court misapplied the law.