author: TAYLOR, Presiding Judge.

text:
    2003 OK CIV APP 38
    TRIPLE D EXCAVATION and National American Insurance Company, Petitioners, v. Larry W. EDWARDS and the Workers' Compensation Court, Respondents.
    No. 97,845.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    March 11, 2003.

      James B. Cassody, Owen T. Evans, MceGi-vern, Gilliard & Curthoys, Tulsa, for Petitioners.
    Craig R. Armstrong, Armstrong & Lowe, Tulsa, for Respondent.
   TAYLOR, Presiding Judge.

11 Petitioners, Triple D Excavation and National American Insurance (collectively, Employer), seek review of an order of the workers' compensation court granting a request by Claimant, Larry Edwards, for a change of physician. The issues concern whether the trial court properly applied the provisions of 85 0.8. Supp 2002 § 14(G). Based on our review of the record, the parties' briefs, and the applicable law, we find that it did, and sustain its order.

12 Claimant filed his Form 3 claiming injury to his back and neck on August 22, 2001, from a vehicle accident at work. The trial court entered an order in December 2001 requiring Claimant to appear for a medical examination by Dr. Thomas Craven and authorizing Dr. Craven to treat Claimant. The court also requested that Dr. Craven provide -specific information concerning Claimant's condition. In February 2002, Dr. Craven signed a Form 5 physician's release indicating Claimant had been given a "full duty release," and that he had reached maximum medical improvement and was "release form active medical care."

T 3 In April 2002, Claimant filed a Form 13 and a Form 9 seeking, among other things, appointment of an independent medical examiner and authorization for neurosurgical consultation with one of three doctors, including Dr. Frank Tomacek. Claimant also filed a "Form A," "Application for Accelerated Docket for Change of Physician," pursuant to 85 0.8. Supp. 2002 § 14(G), seeking a change of physician from Dr. Craven to one of the other three doctors. Employer objected, asserting Claimant was not entitled to use the Form A procedure. After hearing argument of counsel, the trial court afforded Employer an opportunity to select one of the three physicians pursuant to § 14(G) without waiving its objection. Employer chose Dr. Toma-cek, and the trial court entered an order approving the physician change and appointing Dr. Tomacek to provide such treatment "as may be reasonable and necessary for injury to claimant's neck & low back" at Employer's expense.

114 Employer appeals, asserting two issues of error. First, Employer contends the trial court's decision was an improper retrospéc-tive application of the current version of § 14(G). Second, Employer alleges the order was in error because it effectively appointed a mew physician rather than a change in physician, and thus was outside the applicability of § 14(G). Both issues present questions of statutory construction, an issue of law, and we review the decision of the work-erg compensation court de novo. Arrow Tool & Gauge v. Mead, 200 OK 86, ¶ 6, 16 P.3d 1120, 1123; Anderson v. Dep't of Human Serv., 1995 OK CIV APP 136, ¶ 9, 916 P.2d 846, 848.

T5 Section 14 of the workers' compensation statutes concerns an injured employee's right to receive, and an employer's obligation to provide, appropriate medical care; delineates certain requirements imposed on attending physicians, including applicable fee and treatment schedules and reporting requirements; and addresses changes in physicians. Employer contends the current version of § 14(G) did not become effective until October 28, 2001, and because Claimant was injured in August 2001, his claim is governed by § 14 as it existed before the October 2001 amendments.

T6 As a general rule, it is true that "statutes are to be applied prospectively only." Oklahoma Bd. of Med. Licensure & Supervision v. Oklahoma Bd. of Examiners in Optometry, 1995 OK 13, ¶ 6, 893 P.2d 498, 499. However, the general rule of prospective application does not apply to statutes affecting only procedure-i.e., the manner or mode of protecting or enforcing a substantive right-and statutes which alter or change procedures rather than substantive or vested rights will be given retrospective effect. Id.

T7 "A 'vested right' is the power to do certain actions or possess certain things lawfully, and is substantially a property right. It may be created either by common law, by statute or by contract. Once created, it becomes absolute, and is [constitutionally] protected from legislative invasion." Oklahoma Water Res. Bd. v. Central Okla. Master Conservancy Dist., 1968 OK 73, ¶ 23, 464 P.2d 748, 755. As examples, statutory amendments which the Oklahoma Supreme Court has found constitute substantive alterations to vested rights include amendments altering the potential liability of a party by substantially increasing the damages available for a wrong, see Sudbury v. Deterding, 2001 OK 10, 19 P.3d 856; an amendment providing for revival and non-abatement of a workers' compensation award upon the death of the claimant, see Swatek Construction Co. v. Williams, 1935 OK 1139, 58 P.2d 585; and a statute conferring extraterritorial jurisdiction on the workers' compensation court to hear a claim for compensation by an Oklahoma worker injured in another state, see Phillips v. H.A. Marr Grocery Co., 1956 OK 104, 295 P.2d 765. However, an enactment which is not "of the substance of [a] right of action," but which is more in the nature of "a directive to the trial court" has been deemed a "mode of procedure" subject to retrospective application. Benson v. Blair, 1973 OK 102, ¶ 6, 515 P.2d 1363, 1365 (holding a statute providing for and establishing a rate of pre-judgment interest was procedural in nature and should be applied retrospectively).

18 Two subsections of the pre-amendment version of § 14 at issue. here dealt with changes of physicians. Under § 14(F), the workers' compensation court was to order a change, on application of the employee or employer when, "in [the court's] judgment, such change [was] desirable or necessary." Section 14(G) limited the monetary lability of an employer for medical expenses incurred by an employee who chose a physician for treatment and subsequently changed doctors without prior approval of the workers' compensation court or agreement of the parties. The October 2001 amendments combined and renumbered the two subsections into § 14(G), and clarified that it applied to employees not covered by "certified workplace medical plans," as is the situation in the case at bar. As so amended, § 14(G) provides in relevant part that:

[TJhe Court on application of the employee shall order one change of physician .... Any change of physician pursuant to this subsection shall be at the expense of the employer; provided, the employer shall not be liable to make any of the payments provided for in this section, in case of contest of liability, where the Court shall decide that the injury does not come within the provisions of the Workers' Compensation Act. On application of the employee for a change of physician, the Court shall set the matter for hearing within seven (7) days of filing the application. At or before the hearing, the employee shall present to the employer a list of three physicians qualified to treat the employee's injury, and the employer shall choose one of the physicians. The Court shall order that the selected physician be allowed to treat the employee at the expense of the employer..

19 Employer argues that "substantive rights" are those which affect "the monetary, medical or rehabilitative benefits" conferred by a statute. As such, Employer contends, because § 14(G) allows for awards of medical treatment pursuant to a "Form A order," it "substantially affects the benefits available under the act" and therefore cannot be applied retrospectively.

110 Employer's argument is flawed, however, in its suggestion that the amended § 14(G) confers a substantive right that an injured worker did not previously have; the argument essentially posits that, prior to the amendments, an injured worker did not have a right to receive medical treatment from a physician of his or her own choosing, or to request a change in physicians, within certain limitations. In fact, these rights have been a basic part of the state's workers' compensation law for many years. See, e.g., Iwunoh v. Maremont Corp., 1984 OK 8, 692 P.2d 548; Burns v. Southwestern Preferred Prop., Inc., 1978 OK 95, 580 P.2d 986; see also "Historical and Statutory Notes" accompanying 85 0.§.2001 § 14. Thus, even assuming Employer is correct when it states that medical benefits and treatment constitute substantive rights, we do not find the October 2001 changes to § 14 substantially affected those rights in any way other than to alter the manner, or the procedure, by which they are enforced. The changes do not impose additional liability for damages, nor do they enlarge or diminish an employer's obligation to provide medical treatment or an employee's right to receive such treatment. As they concern a request for a change of physician, the amendments affect the manner in which the remedy being requested may be obtained and thus are more in the nature of a directive to the workers' compensation court as to how it should proceed. We find the amendments at issue are procedural in nature. We therefore reject Employer's argument that the Form A procedure cannot be used because it is the "retrospective" imposition of a substantive law.

T11 Employer also argues the appointment of Dr. Tomacek was in error because it named a new physician rather than a change in treating physician, and § 14(G) concerns only changes of physicians, not new physicians. This argument is based on Employer's contention that Dr. Craven's release of Claimant to return to work operated to terminate his tenure as Claimant's treating physician, and the subsequent appointment of Dr. Tomacek therefore constituted appointment of a new doctor. Employer refers us to no legal authority or evidence, however, to support its contention that the release of a patient to return to work or from "active medical care" terminates the physician-patient relationship or otherwise ends the doctor's role as a treating physician, particularly when that role has been created by a court order. We are aware of no such authority, and find no practical reason for this result. The record indicates that, despite the filing by Dr. Craven, Claimant has continued to assert injury and pain to his back and neck, and the status of his injury has yet to be adjudicated. Further, as Claimant argues, any grant of a change of a physician request will result in the appointment of a "new" doctor; otherwise, there would be little point in recognizing a party's right to request a change. We therefore reject Employer's argument on this ground as well.

{12 Accordingly, having found the workers' compensation court was correct in its application of § 14(G) herein, its order is sustained.

1 183 SUSTAINED.

COLBERT, V.C.J., and STUBBLEFIELD, J., concur.

      . Employer has stipulated it is not a member of a © "certified workplace medical plan."


source: Caselaw Access Project

author: LARRY JOPLIN, Chief Judge:

license: Public Domain

text:
    2003 OK CIV APP 45
    Glenn PARSONS and Nancy Parsons, parents and next of kin of David Parsons, Plaintiffs/Appellees, v. Lloyd PARSONS and Lavonne Parsons, Defendants/Appellants.
    No. 97,261.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    March 13, 2003.
    Certiorari Denied May 13, 2003.

      W.G. Steidley, Sean M. McKelvey, McAles-ter, OK, for Appellants.
    Vester Songer, Hugo, OK, Jim Tatum, Houston, TX, for Appellees.
   LARRY JOPLIN, Chief Judge:

11 Defendants/Appellants Lloyd and Lavonne Parsons (Grandparents) seek review of the trial court's order granting the motion for a new trial of Plaintiffs/Appellees Glen and Naney Parsons (Parents) for alleged error in instruction of the jury. In this proceeding, Grandparents assert that Parents failed to show a probability that the jurors were misled by the instructions given, and that the instructions as a whole accurately stated the relevant law. Having reviewed the record, however, we cannot say the trial court erred, and hold the order of the trial court should be affirmed.

T2 In 1998, Parents visited the home of Grandparents with their two children. One of the children, three-year-old David, discovered a handgun left out on Grandparent's bed. The gun discharged and David was fatally injured.

{3 Parents then commenced the instant action, alleging Grandparents' negligence. Upon presentation of the evidence, Parents requested a jury instruction concerning the duty of care arising upon possession or control of a dangerous instrumentality, but the trial court refused to so instruct the jury. Instead, and over Parent's objection, the trial court instructed the jury that Grandparents, as licensors, owed only a duty to keep their premises in a reasonably safe condition for the use of licensees, and to remove or warn of hidden dangers.

'I 4 Upon consideration of the evidence, the jury returned a verdict for Grandparents. Parents moved for a new trial for error in instruction of the jury. The trial court acknowledged the error, and granted the motion for new trial.

15 In this appeal, Grandparents assert the trial court manifestly and materially erred in granting Parents' motion for new trial because the jury was not misled by the trial court's refusal of Parent's requested instruction and because the jury instructions as a whole accurately stated the law. In this respect, a verdict will not ordinarily be disturbed for error in instruction of the jury unless it appears the jury was thus misled and reached a different conclusion than they would have reached but for the instructions given or refused. See, eg., Cimarron Feeders, Inc. v. Tri-County Elec. Coop., Inc., 1991 OK 104, ¶ 5, 818 P.2d 901, 902.

16 Furthermore, "[al trial court is vested with broad discretion in granting or denying a new triall,] [and] [uJnless it is apparent that the trial court erred in some pure simple question of law or acted arbitrarily the ruling will not be disturbed on appeal." McMinn v. City of Oklahoma City, 1997 OK 154, ¶ 19, 952 P.2d 517, 522. (Citations omitted.) But:

[Where [a] new trial is granted by the same judge who tried the case, a much stronger showing of error or abuse of discretion is required in order for this Court to reverse than if a party was appealing a refusal to grant a new triall,] [and] the decision of a trial court to grant a new trial will not be reversed "unless it can be seen beyond all reasonable doubt that the trial court has manifestly and materially erred."

Austin v. Cockings, 1994 OK 29, ¶ 10, 871 P.2d 33, 34-35. (Citations omitted.)

T7 In the present case, we cannot say the trial court manifestly and materially erred in granting Parents' motion for new trial. Onee Parents showed that Grandparents were in control of the handgun, a dangerous instrumentality, the law imposed on them a heightened duty of care to David, a child of tender years, regardless of his status as trespasser, invitee or licensee:

One in possession or control of a dangerous instrumentality accessible to children of tender age is required by law to exercise the highest degree of care to prevent them from being injured thereby. [That firearms are an extraordinarily dangerous instrumentality is established beyond question. .... rule obtains regardless of whether the children are trespassers, if there is a reasonable probability that they may obtain access to such dangerous instrumentality, and injury results to them thereby.

Hart v. Lewis, 1940 OK 273, ¶ 5, 103 P.2d 65, 67-68. In failing to instruct in accord with this standard as requested, the probability that the jury was misled is significant:

By refusing to include instruction, the applicable law on the issues was withheld from the jury and gives rise to a probability that jurors were misled, thereby reaching a different conclusion than they would have, but for the refusal to give the proposed instruction.

Cimarron Feeders, Inc., 1991 OK 104, ¶ 15, 818 P.2d at 903. We therefore conclude the trial court did not err in granting Parents' motion for new trial.

8 The order of the trial court is therefore AFFIRMED.

ADAMS, P.J., and BUETTNER, J., coneur.

      . See also, Ohio Casualty Ins. Co. v. Todd, 1991 OK 54, ¶ 8, 813 P.2d 508, 513, fn. 11 (Opala, C.J., concurring.)

      . Having so held, we decline the parties' invitation to advise the trial court concerning other instructions that may or may not be warranted upon the evidence at new trial. See, eg., Rogers v. Excise Board, 1984 OK 95, ¶ 15, 701 P.2d 754, 761 (appellate courts do not decide abstract or hypothetical questions disconnected from the granting of actual relief.)


author: CAROL M. HANSEN, Judge:

text:
    2003 OK CIV APP 48
    Charles D. WHITESIDE, Petitioner, v. BRADEN MANUFACTURING LLC, Zurich American Ins. Co., and The Workers' Compensation Court, Respondents.
    No. 98,632.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    April 25, 2003.
    Timothy S. Reese, J. Mike Lawter, Oklahoma City, OK, for Petitioner.
    David P. Reid, Kelly J. Greenenough, Tulsa, OK, for Respondents.
   Opinion By

CAROL M. HANSEN, Judge:

{1 Petitioner, Charles Whiteside (Claimant), seeks review of a Workers' Compensation Court (WCC) order denying his claim for compensation. Claimant filed his Form 3-Employee's First Notice of Accidental Injury and Claim for Compensation-on November 13, 2001. He claimed cumulative trauma injury to both ears with a date of last exposure of November 2, 2001. The Form 3 also noted employment with Respondent, Braden Manufacturing (Employer) for a period of thirteen years and four months, and that at the time of this latest injury Claimant was a previously impaired person. In its Answer, Employer asserted an affirmative defense of preexisting condition, asserting that hearing loss is "not divisible."

12 At trial, Claimant sought permanent partial disability benefits for binaural hearing loss and medical treatment in the form of hearing aids. Employer reiterated its affirmative defense of preexisting condition. Employer argued Claimant had previously settled, by joint petition, a binaural hearing loss claim with Employer and that under Oklahoma law hearing loss claims are not divisible.

18 Claimant testified he began working for Employer in 1989. In 1994, he filed a Workers' Compensation claim against Employer for cumulative trauma hearing loss. That claim was settled by joint petition in 1996. He testified he continued to work for Employer and was "continually exposed" to workplace loud noise. He said his hearing was tested by Employer every year and he was told it was getting worse. He filed his most recent claim shortly after being laid off in October 2001.

4 The trial court denied Claimant's claim for compensation. The court found [1] Claimant's cumulative trauma binaural hearing loss arose beginning when he went to work for Employer, [2] the hearing loss "was concluded by joint petition on FEBRUARY 13, 1996", and [8] Claimant continued to work for Employer with the same noise exposure until the day he last worked there. The trial court concluded that "a cumulative trauma hearing loss is not divisible."

15 After a three-judge panel of the WCC unanimously affirmed the trial court's order without modification, Claimant sought our review. As his sole proposition of WCC error, Claimant contends that court erred in finding his hearing loss claim indivisible when the statute of limitations is not at issue. The WCC's legal conclusion that eumulative trauma hearing loss claims are not divisible was not fact based, but was made as a matter of law. On questions of law we exercise de movo review. B.E. & K. Const. v. Abbott, 2002 OK 75, 59 P.3d 38 (footnote 1). Under the de novo standard, this Court has "plenary, independent and non-deferential authority to address legal issues." Id.

1 6 Although the WCC did not cite specific legal authority for its conclusion, the parties agree the court's determination was based on the Oklahoma Supreme Court's holdings in Prophet v. Vickers, 1992 OK 85, 833 P.2d 1231, and Williams Company v. Lawrence, 1992 OK 3, 824 P.2d 1134. Both cases concern cumulative trauma hearing losses and application of the statute of limitations found at 85 0.8.1991 § 48, both before and after § 48 was amended in 1985 to make the limitations period run from the date of last hazardous exposure and not the date of awareness.

T7 In Prophet, the Court noted, "[i]t is not possible to divide a claim by degrees, some which claimant was aware of at the time he learned of his hearing loss and some of which he was not." The Williams Court similarly held-"No cases are cited and we know of none which divides a hearing loss claim by degrees of the hearing loss-some of which the claimant was aware and some not. A hearing loss claim caused by repeated small traumatic episodes or occurrences is not divisible in such a manner, but is one single accident."

118 In Southwest United Industries v. Polston, 1998 OK 78, 964 P.2d 210, the Supreme Court revisited and distinguished Williams. In Poilston, the issue was whether liability for a cumulative trauma injury could be apportioned between successive insurers of a single employer. The employer's insurer there, relying on Williams, asserted "disability from a cumulative trauma cannot be apportioned." The Poiston Court held that it could, finding Williams was distinguishable because it dealt only with the claimant's awareness of injury for limitations purposes.

T9 In Southwest Cupid v. Jackson, 2000 OK CIV APP 67, 7 P.3d 515, the Court of Civil Appeals adopted the Polston Court's rationale limiting Williams to questions involving limitation periods. The facts in Jackson are very similar to those here. The claimant in Jackson began work for the employer in 1996. She filed a claim for cumulative trauma injury to her hands, arms, shoulder and neck in February 1997. She was laid off, but went back to work for the same employer in January 1998. In June 1998, she settled her compensation claim by joint petition. She began experiencing problems again in January 1999, and filed another claim for cumulative trauma injury to her hands, arms, and neck.

$10 As Employer did here, the employer in Jackson defended on the grounds that the claimant's January 1999 claim related to and was settled by the June 1998 joint petition, and that the claimant should be treated as if she had only one accident. The Court of Civil Appeals found the employer's reliance on Williams unconvineing and held the WCC was "not bound to treat Claimant's post-joint petition aggravation of her condition as a single injury with the previously compensated injury."

{11 Employer purports to distinguish Jackson because the injuries there are not hearing loss. Employer argues, "bhlearing loss is a unique type of injury totally dissimilar to orthopedic injuries." While the injuries may somehow be medically distinguishable, Employer cites no legal authority for its contention that they should be treated differently under the Workers' Compensation Act. The more important factor is not that the injuries are to different parts of the body, but that they are incurred in the same fashion, ie., "from employment activities which are repetitive in nature and engaged in over a period of time." 85 0.8.2001 § 3(4).

1112 We find the WCC erred in denying Claimant's request for compensation on the grounds that, as a matter of law, hearing losses are not divisible. The WCC has made no factual determination whether Claimant's post joint-petition hearing loss, if any, is compensable. The WCC's order is therefore VACATED and this matter is REMANDED to the WCC for such determination.

13 VACATED AND REMANDED.

JONES, J., and MITCHELL, P.J., concur.

      . It has long been recognized in this jurisdiction that aggravation of a preexisting condition by subsequent injury, including cumulative trauma injury, is compensable. ITT Continental Baking Co. v. Ware, 1980 OK 167, 620 P.2d 1308.

      . Employer also inaccurately asserted in its Answer Brief that Jackson could be distinguished because it dealt with liability for cumulative trauma injuries between successive insurers. That was the issue in Polston, but riot Jackson.


author: DURRANT, Associate Chief Justice:

text:
    2003 UT 23
    Craig Curtis SMITH, Plaintiff and Appellant, v. FOUR CORNERS MENTAL HEALTH CENTER, INC., a Utah corporation, Larry Randall and Carolyn Randall, and unknown defendants, X, Y, Z, Defendants and Appellees.
    No. 20010826.
    Supreme Court of Utah.
    May 13, 2003.

      C. Danny Frazier, Roger W. Griffin, Lehi, for plaintiff.
    Douglas L. Stowell, Lloyd R. Jones, Price, for defendant Randalls.
    Clifford C. Ross, Salt Lake City, for defendant Four Corners.
   DURRANT, Associate Chief Justice:

1 This appeal concerns the liability of a health care provider and foster parents for injuries one foster child inflicted on another foster child. Craig Curtis Smith sued Four Corners Mental Health Center, Inc. ("Four Corners") and his foster parents, Larry and Carolyn Randall, claiming damages for injuries he received when he was purportedly sexually assaulted by another foster child placed with the Randalls According to Smith, Four Corners' negligence stems from its failure to supervise the Randalls and properly provide foster care services, and the Randalls' negligence stems from their failure to properly supervise Smith's activities with another foster child. Smith claims that these failures by both of the defendants proximately caused his injury. Four Corners and the Randalls filed separate motions for summary judgment. The district court granted both motions, and Smith appeals. We reverse summary judgment as to the Randalls because they failed to assert sufficient facts to support their legal argument, but we affirm summary judgment as to Four Corners because Smith failed to comply with the requirements of the Utah Health Care Malpractice Act ("UHCMA").

BACKGROUND

12." [In reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." " Young v. Salt Lake City Sch. Dist., 2002 UT 64, ¶ 2, 52 P.3d 1230 (quoting Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993)). We state the facts of this case accordingly.

T3 On or about January 14, 1992, the Seventh Judicial District Court placed Smith in the custody of the Department of Human Services ("DHS"). That same day, DHS placed Smith in the home of the Randalls, who were licensed, approved, and controlled by DHS as foster parents. In addition to DHS, Four Corners, a Utah corporation providing mental health care and other related services in Carbon and Emery counties, supervised the foster care provided by the Randalls. Shortly afterwards, in February 1992, DHS and Four Corners placed another foster child, J.B., in the Randalls' home.

{4 J.B. and Smith shared a bedroom in the Randalls home for at least an entire year, during which time the Randalls often left Smith and J.B. together without supervision. Sometime in June 1998, J.B. sexually assaulted Smith. Smith attempted to notify the Randalls, caseworkers, and other authorities of the sexual assault, but they failed to adequately discuss Smith's complaints with him.

€5 In March 1994, Smith first told his mother, Traci Pettyjohn, about the sexual assault. On August 14, 1994, Smith and Pettyjohn filed a notice of intent to file a claim directed at both DHS and Four Corners. No claim was filed, however, until November 28, 1998, when Smith, having turned eighteen on January 14, 1998, first brought this claim against DHS, Four Corners, and the Randalls.

16 In his claim, Smith alleged that the Randalls negligently left Smith and J.B. without sufficient supervision. He also alleged that DHS and Four Corners acted recklessly and with gross negligence in failing to protect Smith from J.B. Smith's complaint alleged that (1) J.B. possessed a violent character and had homosexual tendencies, (2) DHS and Four Corners had actual or constructive knowledge of these tendencies, and (8) they failed to properly protect Smith from injury by inadequately supervising caseworker services provided to the Randalls, Smith, and J.B. and by placing Smith and J.B. in a home together.

PROCEDURAL HISTORY

I7 At the beginning of January 1999, DHS filed a motion to dismiss, claiming governmental immunity. Smith did not respond to this motion, and on February 5, 1999, the district court granted DHS's motion. In its order dismissing DHS, the district court expressly relied on the arguments in DHS's motion to support its conclusion that DHS was immune from suit.

T 8 Over one year later, Four Corners filed a motion for summary judgment on July 27, 2000, arguing that it could not be held liable for Smith's injuries. In its motion, Four Corners maintained, among other things, that it was a health care provider as defined by statute and that Smith had failed to comply with the statutory requirements for timely filing a claim against such providers. The Randalls filed their own motion for summary judgment on October 5, 2000, arguing that they did not breach their duty of care or, in the alternative, that they were immune from suit under either the doctrine of parental immunity or governmental immunity. Responding to the Randalls motion for summary judgment, Smith submitted the affidavit of his mother, Tracy Morris, to show that the defendants knew or should have known of J.B.'s violent and homosexual tendencies. After receiving Smith's response, the Randalls moved to strike certain statements from Tracy Morris's affidavit, arguing that they contained inadmissible hearsay or opinion testimony and unsupported legal conclusions.

T9 At a hearing on all of these motions on June 19, 2001, Smith produced for the first time two want ads purporting to be from Four Corners. Smith introduced these ads to show that Four Corners had actively recruited potential foster parents to house emotionally disturbed children for pay. The district court accepted these ads into evidence after Smith proffered them at oral argument.

T10 Following this hearing, the district court issued a memorandum decision addressing the Randalls motion to strike and both the Randalls and Four Corners motions for summary judgment. In its memorandum decision, the district court first stated that the Randalls' motion to strike "is not well taken" and denied that motion. On Four Corners motion for summary judgment, the district court concluded "that the lawsuit was not timely filed against Four Corners, as set forth in its arguments" concerning the UHCMA, and granted summary judgment. Concerning the Randalls, the district court held that "the primary determination for granting the Motion for Summary Judgment on behalf of the Randalls [was] the argument made by [DHS] and which has been adopted by this Court previously." Relying on its previous decision to grant DHS's motion and its reasoning for granting summary judgment to Four Corners, the district court also concluded that "the Randalls [were] clothed with the same immunities and statute of limitation protections as [DHS] and [Four Corners]."

[ 11 On appeal, Smith argues that the district court incorrectly granted summary judgment to both Four Corners and the Randalls. First, he claims that governmental immunity protected neither Four Corners nor the Randalls. Second, he argues that neither defendant could claim protection under the UHCMA. Finally, Smith argues that summary judgment was improper for several procedural reasons including (1) the summary judgment order was deficient, (2) the district court improperly sua sponte incorporated arguments from DHS's motion to dismiss into its summary judgment order, and (8) Four Corners failed to properly answer interrogatories and that had they provided complete answers to these interrogatories he might have been able to establish issues of fact prohibiting the district court from granting summary judgment.

1 12 We have jurisdiction to hear this case pursuant to section 78-2-2(8)(f) of the Utah Code. Utah Code Ann. § 78-2-2(8)(j) (2002).

ANALYSIS

I. STANDARD OF REVIEW

113 On an appeal of a district court's entry of summary judgment, we apply the same standard as applied by the district court. City Consumer Servs. v. Peters, 815 P.2d 234, 239 (Utah 1991); Durham v. Margetts, 571 P.2d 1332, 1334 (Utah 1977). According to that standard, summary judgment is only appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). " 'When reviewing a court's decision to grant summary judgment, we examine the court's legal conclusions for correctness." " Young v. Salt Lake City Sch. Dist., 2002 UT 64, ¶ 10, 52 P.3d 1230 (quoting Tustian v. Schriever, 2001 UT 84, ¶ 13, 34 P.3d 755). "If, after a review of the record, it appears that there is a material factual issue, we are compelled to reverse the trial court's grant of summary judgment." W. Farm Credit Bank v. Pratt, 860 P.2d 376, 378 (Utah Ct.App.1993) (citing Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 957 (Utah Ct.App.1989)).

II. SMITHS PROCEDURAL ARGUMENTS AGAINST THE SUMMARY JUDGMENT ORDER

T 14 On appeal, Smith makes several procedural arguments attacking the district court's summary judgment order. Smith argues that, to the extent the district court's order granting summary judgment to both Four Corners and the Randalls rests on the theory of governmental immunity, it is deficient because the district court failed to explain the reasoning supporting its conclusion on this theory. Smith further contends that the district court improperly supported its determination that the defendants were entitled to governmental immunity by sua sponte incorporating its ruling regarding DHS's immunity into its order granting summary judgment. In addition, Smith asserts that Four Corners' failure to properly answer interrogatories prevented him from establishing material facts that would have precluded summary judgment based on his failure to comply with the UHCMA. Because these procedural arguments would ultimately be dispositive if true, we consider them first before discussing the propriety of the substantive legal theories offered to justify summary judgment for the Randalls and Four Corners.

A. Smith Argues that the Summary Judgment Order Was Deficient

115 In his brief, Smith asserts that the district court's ruling granting summary judgment to the defendants is a clearly deficient document that "must be considered plainly erroneous." He argues that unspecified issues and accompanying argument were crucial to the court's decision and that nondisclosure of this information should invalidate the decision.

116 Smith's deficiency argument fails because the district court's order included sufficient detail to permit appellate review. When a court decides a motion for summary judgment, rule 52 of the Utah Rules of Civil Procedure states that "[the court shall ... issue a brief written statement of the ground for its decision ... when the motion is based on more than one ground." Utah R. Civ. P. 52(a). In an earlier case, we noted that the purpose of rule 52 is to give the parties a written indication of the court's reasoning and held that a "court need only include the basic essentials of the grounds upon which it relies" to comply with the rule. Schuurman v. Shingleton, 2001 UT 52, ¶ 8, 26 P.3d 227. The district court stated in its order that it granted summary judgment to Four Corners because Smith failed to timely file his lawsuit. It granted summary judgment to the Randalls because it determined that, like DHS, they were immune from suit. A simple reading of the district court's order reveals the basic grounds upon which it relied to grant summary judgment to both defendants. Therefore, we conclude that the district court's order granting summary judgment was not deficient.

B. Smith Argues that the Court Incorporated Arguments Sua Sponte

T17 Smith also argues that the district court should not have sua sponte incorporated its earlier order granting DHS's motion to dismiss, and the arguments supporting that decision, into its decision to grant the Randalls summary judgment in order to support that judgment. Contrary to Smith's position, we note that the district court did not incorporate its earlier ruling for DHS sua sponte. In the memorandum supporting their motion for summary judgment, the Randalls specifically argued that they "were appointed to act as foster parents by [DHS]. Consequently, they should be deemed quasi-governmental in their position and should be entitled to the same immunity as [DHS]. [DHS]'s arguments on immunity, which have already been successful herein, are incorporated herein by this reference." Additionally, at oral argument before the district court, the Randalls clearly claimed governmental immunity based on their relationship with DHS. Because the Randalls made this argument in their memorandum and at oral argument before the district court, Smith cannot argue that the district court relied sua sponte on its previous holding to justify granting summary judgment to the Randalls.

C. Smith Charges Answers to Interrogatories Were Incomplete

{18 Finally, Smith argues that summary judgment was premature because he was not able to complete discovery prior to the district court's decision to grant summary judgment. He specifically argues that by failing to completely answer his interrogatories, Four Corners hampered his ability to demonstrate the existence of material facts. Four Corners argues that this claim was not properly preserved below because Smith failed to move the district court to compel Four Corners to fully answer the interrogatories or to make a rule 56(f) motion to allow for additional discovery.

(19 "We will not address any new arguments raised for the first time on appeal." Treff v. Hinckley, 2001 UT 50, ¶ 9 n. 4, 26 P.3d 212; see also Ong Int'l (U.S.A.), Inc. v. 11th Ave. Corp., 850 P.2d 447, 455 (Utah 1993) (" 'With limited exceptions, the practice of this court has been to decline consideration of issues raised for the first time on appeal. " (citation omitted)). Smith claims that be first raised this issue in his Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment. Despite a close review of both this document and the oral argument before the district court, we are unable to discover any evidence that this issue was ever brought before the court below. Because this issue has been raised for the first time on appeal, it is not properly before us. Therefore, we will not address it.

( 20 Since each of Smith's procedural arguments fails, we now turn to discuss whether the district court properly granted summary judgment on the theories of governmental immunity and failure to timely comply with the UHCMA.

III. GOVERNMENTAL IMMUNITY

121 Challenging the theories upon which the district court justified summary judgment, Smith first argues that governmental immunity protects neither Four Corners nor the Randalls because they waived this claim in oral argument before the district court. In addition, Smith argues that no special relationship existed between the Randalls and DHS that would immunize the Randalls from suit.

22 In its brief, Four Corners admits that it waived any claim to governmental immunity in oral argument before the district court; however, the Randalls assert that they did not waive their right to claim governmental immunity. Defending the district court's decision to grant summary judgment, the Randalls argue that their status as employees for DHS establishes an agency relationship entitling them to immunity under the umbrella of DHS.

123 In its memorandum decision, the district court determined that the Randalls were entitled to the same immunity as DHS. The Randalls argue that this determination was justified because they were clothed with the same immunity, and to the same extent, as DHS under the law of the case doctrine. However, even under the law of the case doctrine, the Randalls would be entitled to summary judgment only i#f they established a relationship sufficient to entitle them, as a matter of law, to the same immunity enjoyed by DHS. Because the Randalls failed to establish such a relationship, summary judgment was inappropriate on this theory.

124 For a moving party to be entitled to summary judgment, it must establish a right to judgment based on the applicable law as applied to the undisputed facts. See Utah R. Civ. P. 56(c);, Transamerica Cash Reserve, Inc. v. Dixie Power & Water, Inc., 789 P.2d 24, 25 (Utah 1990). We have noted that summary judgment "should be granted only when all the facts entitling the moving party to a judgment are clearly established or admitted." Sorenson v. Beers, 585 P.2d 458, 460 (Utah 1978). For summary judgment to be appropriate, these undisputed facts provided by the moving party must "preclude[ ], as a matter of law, the awarding of any relief to the losing party." FMA Acceptance Co. v. Leatherby Ins. Co., 594 P.2d 1332, 1334 (Utah 1979); see also Staker v. Ainsworth, 785 P.2d 417, 419 (Utah 1990) ("[There must exist undisputed facts in the evidence before the trial court relating to each of the elements of [the legal doctrine upon which the trial court rests its decision to grant summary judgment] in order for us to affirm the ruling.").

125 Defending the district court's summary judgment, the Randalls first argue that they are entitled to the same immunity that the district court gave to DHS. They assert that the district court's earlier ruling dismissing DHS became the law of the case and that their agency relationship with DHS entitles them to the same immunity protection. Under the law of the case doctrine, "a decision made on an issue during one stage of a case is binding in successive stages of the same litigation." Thurston v. Box Elder County, 892 P.2d 1034, 1037 (Utah 1995). In this case, the district court considered the facts of this case, determined that governmental immunity applied to DHS and issued an order granting DHS's motion to dismiss on February 5, 1999. Though this decision is binding under the law of the case doctrine, it does not automatically assist the Randalls. For the Randalls to benefit from this prior decision granting immunity to DHS, they must clearly establish a relationship with DHS that legally qualifies them to receive the same treatment.

126 The Randalls argue that they are qualified to receive the same treatment because they were employees of DHS for purposes of the Utah Governmental Immunity Act (CUGIA") and .that the UGIA grants immunity to such employees. Utah Code Ann. §§ 63-80-2(2)(a), -4 (1997 & Supp. 2002). According to section 63-80-4 of the Utah Code, a governmental employee may not "be held personally liable for acts or omissions occurring during the performance of the employee's duties, within the seope of employment, or under color of authority." Id. § 68-80-4(4). "Employee" is defined by statute as -

a governmental entity's officers, employees, servants, trustees, commissioners, members of a governing body, ... educational aides, students engaged in providing services to members of the public in the course of an approved medical, nursing, or other professional health care clinical training program, volunteers, and tutors, but does not include an independent contractor.

Id. § 63-80-2(@2)(a) (Supp.2002) (emphasis added). Under this definition, the Randalls argue they are entitled to rely on the previous grant of immunity to DHS by the district court because they are employees, not independent contractors.

127 The facts as they were presented by the Randalls do not, however, clearly establish that they were employees of DHS rather than independent contractors. In the memorandum supporting their motion for summary judgment, the Randalls admit, as alleged by Smith in his complaint, that they were licensed, approved, and controlled by DHS as foster parents. They also admit Smith's allegation that DHS placed Smith in their home. Both of these admissions are supported by the Randalls' affidavit. However, this is the only information establishing a relationship between DHS and the Randalls. From this information, it is not possible to distinguish as a matter of law whether the Randalls are employees, who are entitled to immunity, or independent contractors, who are not. We have noted in other situations that, in general, "an independent contractor is one who is engaged to do some particular project or piece of work, usually for a set total sum, who may do the job in his [or her] own way, subject to only minimal restriction or controls and is responsible only for its satisfactory completion." Utah Home Fire Ins. Co. v. Manning, 1999 UT 77, ¶ 11, 985 P.2d 243 (citing Harry L. Young & Sons v. Ashton, 538 P.2d 316, 318 (Utah 1975)). On the record before us, the Randalls could be considered either employees or independent contractors.

128 As it was the Randalls' obligation to clearly establish all of the material facts from which summary judgment could be granted as a matter of law, their failure to explicitly establish their employment status with DHS prohibits summary judgment. See Sorenson, 585 P.2d at 460. Due to insufficient facts, summary judgment may not be granted because the court cannot appropriately reach a legal conclusion regarding the Randalls' employment status with DHS. Thus, we reverse the grant of summary judgment and remand the case for further development of the facts.

IV. THE UTAH HEALTH CARE MALPRACTICE ACT

[ 29 Smith's second main argument on appeal is that the district court erred in basing summary judgment on his failure to comply with the requirements of the UHCMA. Utah Code Ann. §§ 78-14-1 to -17 (2002). According to Smith, the UHCMA does not apply to the facts of this case because Smith's injuries did not arise out of the rendering of health care. Instead, Smith argues that they arose out of Four Corners' negligent provision of foster care services. Four Corners responds that the allegations in Smith's complaint state a cause of action for health care malpractice.

130 According to its own provisions, the purpose of the UHCMA is to "provide a reasonable time in which actions may be commenced against health care providers while limiting that time to a specific period for which professional liability insurance premiums can be reasonably and accurately calculated." Id. § 78-14-2,. To this end, the statute only applies to malpractice actions against health care providers. Malpractice actions are defined as

any action against a health. care provider, whether in contract, tort, breach of warranty, wrongful death, or otherwise, based on alleged personal injuries relating to or arising out of health care rendered or which should have been rendered by the health care provider.

Id. § 78-14-8(15) (emphasis added). For Four Corners to rely on the UHCMA, it must show that it is a health care provider, and that Smith's injury arose out of or related to its provision of health care.

31 Four Corners asserts that it acted as a health care provider, furnishing mental health services to Smith at the time of Smith's injury. Smith does not deny this assertion. Therefore, the only question we are concerned with is whether Smith's injury was related to or arose out of the provision of mental health care. Smith argues that his injury did not result from medical malpractice but that it arose out of Four Corners' provision of foster care services. He contends that he is not seeking to hold Four Corners responsible for J.B.'s actions. Rather, he is attempting to hold Four Corners liable for failing to protect him from J.B.'s actions. He argues that in providing foster care services, Four Corners negligently supervised J.B., himself and the Randalls. He claims that this negligent supervision resulted in his injuries.

132 In support of his argument that his injuries arose out of Four Corners' provision of foster care services rather than its provision of mental health services, Smith presents two want ads that purportedly show that Four Corners actively recruited foster parents. Though he provided these advertisements during oral argument before the district court, they were not included in the certified record on appeal. Four Corners argues that the want ads were not in evidence before the district court and that they should not be considered for the first time on appeal.

~ [17,18] 188 Despite Four Corners' argument, it is apparent from the district court record that the want ads were presented to the district court. However, the want ads were not included in the record on appeal. According to the Rules of Appellate Procedure, the record on appeal only consists of the original papers and exhibits filed in the district court certified and transmitted to the appellate equrt. Utah R.App. P. 11. When the certified record is incomplete, rule 11 "establishes a procedure for supplementing the record when necessary." Olson v. Park-Craig-Olson, Inc., 815 P.2d 1356, 1359 (Utah Ct.App.1991). We have noted, however, that "a motion under Rule 11(h) is appropriate only when the record must be augmented because of an omission or exelusion, or a dispute as to the accuracy of reporting." Olson, 815 P.2d at 1359 (citing State v. Moosman, 794 P2d 474, 478-79 & n. 17 (Utah 1990). In this case, neither party has brought a rule 11(h) motion to include the two want ads in the record on appeal.

134 Even if we were to include the want ads in the record on appeal, they lack evidentiary value. No information was submitted with the want ads to indicate how these ads specifically relate to this case. One want ad is barely legible and contains no information concerning the date of its publication or even the name of the publication or newspaper in which it was found. The other want ad appears to be a list of several different want ads that appeared in several publications between June 30, 1991, and December 28, 1991. Without any information linking them with the provision of foster care services by Four Corners at the time Smith received his injuries, it is unclear what relevance these ads have to this case. Without such information, these want ads have no relevant bearing on what type of services Four Corners was providing to Smith at the time of his injury, and they can have no effect on the outcome of this decision.

135 Moreover, even if we otherwise adopt Smith's position that Four Corners provided him foster care services, we would not be able to conclude that Smith's injury arose solely, or even mostly, out of Four Corners' foster care provider role. Smith's complaint claims that Four Corners "knew, had reason to know, or should have known that [J.B.] possessed a violent character, and demonstrated homosexual tendencies." He alleges that Four Corners should be held liable for several reasons, including the following: failing to provide adequate caseworker services to himself and J.B., failing to supervise the preparation and implementation of Smith's treatment plan, and failing to inform the Randalls and Smith of J.B.'s dangerous characteristics. These allegations all arise out of Four Corners' provision of mental health services.

136 In addition, the uncontested relevant facts show that Smith's claim clearly arises out of Four Corners' role as a health care provider both to Smith and to J.B. In its response to interrogatories, Four Corners explained that it had an open outpatient clinical case with Smith to treat his diagnosed mental health problems at the time he received his injury. It dlso admitted that, pri- or to this injury, it had provided mental health care to Smith at the Child and Adolescent Residential Treatment Home. Smith's allegations that Four Corners failed to adequately provide caseworker services and to prepare and implement his mental health treatment plan all relate to Four Corners role as a mental health care provider. Additionally, the reason Four Corners became involved in providing Smith foster care services arose out of its provision of mental health care to Smith. Because Smith's own allegations arise out of the fact that Four Corners provided mental health services directly to him, Smith was required to follow the procedural requirements of the UHCMA.

187 Before a malpractice action may be brought against a health care provider, the statute requires that certain procedural steps be taken. "Such protections include notice of intent to commence an action, [Utah Code Ann.] § 78-14-8, a prelitigation panel review, id. § 78-14-12(2), and an abbreviated statute of limitations{,] /i}d. $ 78-14-4(1)." Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997). See also Malone v. Parker, 826 P.2d 132, 133 (Utah 1992) (same); Carter v. Milford Valley Mem'l Hosp., 2000 UT App 21, ¶ 13, 996 P.2d 1076 (same). If Smith failed to follow any of these procedures, Four Corners was entitled to summary judgment as a matter of law. See Platts, 947 P.2d at 661.

138 Four Corners admits that a notice of intent to file a claim dated August 12, 1994, was addressed to it and to the State, but it points out that Smith did not file a lawsuit until November 1998; thus it argues that Smith's claim is barred by the statute of limitations. Section 78-14-4 establishes a two year statute of limitations that begins to run from the time the "patient discovers, or through the use of reasonable diligence should have discovered the injury." Utah Code Ann. § 78-14-4(1). Even if we assume that the two-year statute of limitations began to run as late as August 12, 1994, the date on which he filed a notice of intent to file a claim, the statute should have expired long before Smith filed his complaint on November 28, 1998. Normally, Smith's failure to comply with the statute of limitations by not filing a claim within two years of the discovery of his injury would bar him from pursuing his claim. See Schuurman v. Shingleton, 2001 UT 52, ¶ 13, 26 P.3d 227. However, contrary to the language still contained in section 78-14-4(2), the statute of limitations did not begin to run during Smith's minority. See Utah Code Ann. § 78-12-86 (2002) (tolling statute of limitations with respect to minors for most causes of action until a minor reaches the age of majority); Lee v. Gaufin, 867 P.2d 572, 589 (Utah 1993) (holding the language of section 78-14-4(2) unconstitutional and tolling the two-year statute of limitations until the age of majority). Therefore, Smith timely filed his claim.

139 Nevertheless, even though Smith timely filed his claim, he still had to comply with the other statutory requirements by properly addressing a notice of intent to file a claim to Four Corners as required by section 78-14-8 and requesting a prelitigation panel review within sixty days of serving his notice of intent to file a claim on Four Corners as required by section 78-14 12(2)(a). Four Corners provided evidence that Smith failed to provide a notice of intent to file a claim and to request a prelitigation panel review. Unless Smith rebutted or overcame this evidence, Smith's complaint must be considered improper and the grant of summary judgment appropriate.

140 Once the moving party has presented sufficient evidence to support the claim for judgment as a matter of law, the burden shifts to the non-moving party to provide evidence creating an issue of material fact. According to the Utah Code of Judicial Administration, "[all material facts set forth in the movant's statement and properly supported by an accurate reference to the record shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the opposing party's statement." Utah Code Jud. Admin. 4-501(2)(B). "A party opposing the motion is required only to show that there is a material issue of fact. Affidavits and depositions submitted in support of and in opposition to a motion for summary judgment may be used only to determine whether a material issue of fact exists." Lamb v. B & B Amusements Corp., 869 P.2d 926, 928 (Utah 1993). Therefore, "when the moving party has presented evidence sufficient to support a judgment in its favor, and the opposing party fails to submit contrary evidence, a trial court is justified in concluding that no genuine issue of fact is present or would be at trial." Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 957 (Utah Ct.App.1989) (citing Dupler v. Yates, 10 Utah 2d 251, 269, 351 P.2d 624, 636-37 (1960)).

{41 Although Smith provided some evidence that he served a notice of intent to file a claim on Four Corners on August 12, 1994, we question whether this document properly complies with section 78-14-8. We need not address this concern, however, because Smith did not provide any evidence to contradict or rebut the properly supported fact in Four Corners' motion for summary judgment that he did not request a prelitigation panel review, Because Smith failed to show that he had requested a prelitigation panel, he is barred from pursuing his claim, see Utah Code Ann. $ 78-14-12(1)(c), and summary judgment was appropriate on this theory.

V. ALTERNATIVE THEORIES FOR SUMMARY JUDGMENT

142 Both defendants presented alternative arguments justifying summary judgment. Because the UHCMA issue is dispositive as to Four Corners, we need not consider any of Four Corners' alternative arguments. However, since we hold that the Randalls are not entitled to summary judgment based on governmental immunity, we must determine whether their alternative arguments would justify summary judgment. Summary judgment may be affirmed "on any ground available to the trial court, even if it is one not relied on below.": Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993).

€43 As alternative justifications for summary judgment, the Randalls offer three reasons to support the district court's ruling. First, the Randalls argue that they too should be protected by the provisions of the UHCMA. Second, they claim that they acted in loco parentis to Smith and are therefore entitled to parental immunity. Finally, the Randalls argue that they owed no duty to Smith because J.B.'s acts were unforeseeable..

A. The Randalls Cannot Rely on the UHCMA

1 44 Regarding their first alternative argument, the Randalls admit that they did not argue this question before the district court, but they nevertheless argue on appeal that they are protected by the provisions of the UHCMA under the narrow and specific facts of this case. Because we do not consider issues raised for the first time on appeal, see Treff v. Hinckley, 2001 UT 50, ¶ 9 n. 4, 26 P.3d 212, summary judgment cannot rest on this argument.

B. The Randalls' Parental Immunity Argument Is Inadequately Briefed

145 Second, the Randalls make a cursory argument that summary judgment is appropriate because their quasi-parental relationship with foster children entitles them to rely on the doctrine of parental immunity. We have not yet recognized the doctrine of parental immunity in Utah. See Farmers Ins. Exch. v. Call, 712 P.2d 231, 235 & n. 1 (Utah 1985). We did note, over twenty years ago, that "(there is a clear majority trend toward limiting or abolishing" this common law rule. Elkington v. Foust, 618 P.2d 37, 40 (Utah 1980) (quotation and citation omitted).

In support of their argument that we should recognize the doctrine of parental immunity and that such immunity should apply to foster parents, the Randalls merely cite a few cases and provide very little analysis. A brief is inadequate when it merely contains "bald citation[s] to authority [without] development of that authority and reasoned analysis based on that authority." State v. Thomas, 961 P.2d 299, 305 (Utah 1998). As we have repeatedly noted, we are not "a . depository in which [a party] may dump the burden of argument and research." Id. (quotation and citation omitted). We therefore decline to address the Randalls parental immunity argument because it has not been adequately briefed.

C. Smith's Injury May Have Been Foreseeable

T 47 Finally, the Randalls argue that summary judgment is otherwise appropriate because they cannot be held liable for failing to protect Smith from J.B.'s conduct since J.B.'s conduct was unforeseeable. As the Randalls point out, the "overriding practical concern is whether the one causing the harm has shown him- or herself to be uniquely dangerous." Higgins, 855 P2d at 237. While the Randalls claim that they "did not know and had no reason to know of [J.B.]'s alleged homosexual and violent tendencies," Smith argues that Tracy Morris's affidavit establishes that the Randalls did know of J.B.'s homosexual and violent tendencies.

{48 Though the district court ultimately denied their motion to strike, the Randalls argue that the Morris affidavit should not be considered because it contains unfounded legal opinions and inadmissible hearsay. Smith responds that the challenged statements constitute admissible hearsay under either the excited utterance exception or the "catch all" provision of Utah Rules of Evidence 808(24).

149 The Randalls claim that the Morris affidavit fails to comply with rule 56(e), which requires that affidavits "set forth such facts as would be admissible in evidence." We decline to reach the question of whether the district court properly denied the Randalls' motion to strike because they did not properly appeal that ruling. Litigants must "cross-appeal or cross-petition if they wish to attack a judgment of a lower court for the purpose of enlarging their own rights or lessening the rights of their opponent." State v. South, 924 P.2d 354, 355 (Utah 1996) (citing Langnes v. Green, 282 U.S. 531, 538-39, 51 S.Ct. 243, 75 L.Ed. 520 (1931)). The Randalls assert that they properly challenged the admissibility of the Morris affidavit before the district court, but they do not explicitly request in their briefs, nor have they properly filed an appeal requesting, that the district court's ruling be overturned. They merely assert that "[the Morris Affidavit sets forth unfounded opinion about what Four Corners knew or should have known concerning J.B.'s violent tendencies based on inadmissible hearsay, and legal opinions about Four Corners' duty to protect Smith." This does not constitute a proper cross-appeal of the district court's ruling. See Utah R.App. P. 4(d).

150 Though a proper eross-ap-peal was not filed, a review of the challenged paragraphs in the Morris affidavit shows that they do not aid Smith in establishing any material facts. "[AJn affidavit in opposition to a motion for summary judgment must set forth specific facts that would be admissible in evidence in order to show there is a genuine issue for trial" Dairy Prod. Servs. v. City of Wellsville, 2000 UT 81, ¶ 54, 13 P.3d 581. See also Utah R. Civ. P. 56(e);, Broadwater v. Old Republic Sur., 854 P.2d 527, 533 (Utah 1993); Winter v. Northwest Pipeline Corp., 820 P.2d 916, 919 (Utah 1991); Treloggan v. Treloggan, 699 P.2d 747, 748 (Utah 1985) (per curiam); Norton v. Blackham, 669 P.2d 857, 859 (Utah 1983). "An affidavit that merely reflects the affiant's unsubstantiated opinions and conclusions is insufficient to create an issue of fact." Dairy Prod. Servs., 2000 UT 81 at ¶ 54, 13 P.3d 581. See also Winter, 820 P.2d at 919; Treloggan, 699 P.2d at 748; Williams v. Melby, 699 P.2d 723, 725 (Utah 1985); Norton, 669 P.2d at 859.

1 51 The first three challenged paragraphs the Randalls challenge as inadmissible hearsay would fail to create any issue of material fact even if admissible. These paragraphs are irrelevant and fail to establish a genuine triable issue concerning the Randalls negligence. The last three challenged paragraphs all contain unsubstantiated legal opinions and conclusions that cannot create an issue of fact. See Dairy Prod. Servs., 2000 UT 81 at ¶ 54, 13 P.3d 581. Therefore, these challenged paragraphs do not create an issue of fact precluding summary judgment.

152 While the affidavit's contested paragraphs do not create an issue of material fact, one of the uncontested paragraphs contains information that does create such an issue. In this uncontested paragraph, Morris avers that Carolyn Randall "advised [her] that [J.B.] had beaten his own mother and threatened other siblings. The Randalls did not challenge this statement " or attempt to rebut this assertion. This clearly creates a question of whether the Randalls knew or should have known of J.B.'s violent tenden-cles. Because this disputed fact challenges the Randalls' assertion that Smith's injury was unforeseeable, it creates an issue of fact. Therefore, summary judgment cannot alternatively rest on this defense against Smith's negligence claims.

1 53 The existence of even one question of fact precludes us from granting summary judgment on these alternative arguments. Because summary judgment cannot be justified by any of the alternative arguments suggested by the Randalls, we must reverse the district court's decision.

CONCLUSION

1 54 We reverse the summary judgment in favor of the Randalls because they failed to clearly establish that they were employees of DHS and thus entitled to imminity from suit for Smith's injury. Because a question of material fact exists on other issues as well, summary judgment may also not rest upon their alternative arguments. We affirm the summary judgment as to Four Corners because Smith failed to comply with the procedural requirements of the UHCMA. His alleged injuries arose out of and were related to the provision of mental health care services. As such, he had to comply with the procedural requirements of the UHCMA, which he failed to do. Thus, the district court properly granted Four Corners' motion for summary judgment. We remand to the district court for further proceedings consistent with this opinion.

([ 55 Reversed in part and affirmed in part.

1 56 Chief Justice DURHAM, Justice WILKINS, Judge GREENWOOD, and Judge DAVIS concur in Associate Chief Justice DURRANT's opinion.

11 57 Having recused himself, Justice RUSSON does not participate herein; Court of Appeals Judge JAMES Z. DAVIS sat.

I 58 Justice HOWE does not participate herein; Court of Appeals Judge PAMELA T. GREENWOOD sat.

      . The record and the briefs refer at times to either DHS or the Division of Child and Family Services ("DCFS") as the governmental agency responsible for Smith's care. Since DHS, not DCFS, was specifically named as a defendant in the complaint, we refer only to DHS to maintain consistency.

      . The Randalls, in their affidavit, claim that Smith was placed in their home in March 1992 by DHS. However, this discrepancy of fact is not material to Smith's complaint.

      . The parties all concede, for purposes of summary judgment, that the sexual assault occurred in June 1993. The Randalls state in their affidavit, however, that J.B. left their home in February 1993. Their affidavit also states that Smith and J.B. continued to share a bedroom for up to eight additional months after the alleged attack occurred. Viewing the facts and inferences in favor of Smith,. we determine that J.B. was still living in the Randalls' home at the time of the attack.

      . Traci Pettyjohn and Tracy Morris appear to be the same person.

      . Although Smith includes both Four Corners and the Randalls in this argument, it only applies to the summary judgment in favor of the Randalls because, as we discuss below, Four Corners waived its governmental immunity claim.

      . Countering this argument, the defendants contend that Smith failed to marshal all the evidence © in support of the district court's ordér. When appealing a district court's grant of summary judgment, however, the appellant has no obligation to marshal the evidence. The marshaling obligation only arises after a party challenges the sufficiency of the evidence to support a jury's verdict or a district court's ruling containing specific findings of fact See Utah R.App. P. 24(a)(9); Harding v. Bell, 2002 UT 108, ¶ 19, 57 P.3d 1093. At the summary judgment stage, the district court is not concerned about the sufficiency of any evidence because it does not resolve any factual disputes. See Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1111 (Utah 1991). Therefore, the defendants' marshahng argument was inappropriate.

      . This document was Smith's response to the Randalls' Motion for Summary Judgment and had no bearing on, and made no reference to, Four Corners' response to interrogatories.

      . A review of the June 19, 2001, transcript confirms that Four Corners waived this claim in its oral argument before the district court.

      . Prior to oral argument before this court and at oral argument before this court, Smith conceded that the Randalls did not waive this claim.

      . Though Smith argues that neither the Randalls nor Four Corners can rely on the UHC-MA, we will only analyze this argument as it applies to Four Corners. The Randalls did not argue that the UHCMA applied to them before the district court; thus they cannot rely on this argument as a basis for summary judgment on appeal. See infra Part V.A.

      . The Randalls incorporated this argument from Four Corners' responsive brief into their own brief under rule 24(h) of the Utah Rules of Appellate Procedure.

      . In their motion to strike before the district court, the Randalls challenged paragraphs 2, 3, 4, 6, 7, and 8 of Tracy Morris's affidavit. They did not challenge paragraph 5, the source of this statement.

      . Because this statement would qualify as an admission by a party-opponent, it does not constitute hearsay. Utah R. Evid. 801(d)(2).


author: EASTAUGH, Justice.

text:
    Ronald W. WENDTE, Appellant, v. STATE of Alaska, BOARD OF REAL ESTATE APPRAISERS, Appellee.
    No. S-10558.
    Supreme Court of Alaska.
    May 23, 2003.
    Robert S. Spitzfaden, Gruening & Spitzfa-den, APC, Juneau, for Appellant.
    Gayle A. Horetski, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

After Ronald Wendte was convicted of first degree theft for stealing about $250,000 from three children's sports programs, the Alaska Board of Certified Real Estate Appraisers suspended his real estate appraiser's license for two years. It did so under authority of AS 08.87.210(2). The superior court affirmed the suspension. We also affirm, because there is no merit to Wendte's appellate arguments that there was no nexus between his eriminal conduct and his professional licen-sure, and that the board failed to consider relevant or current information. We conclude that substantial evidence supports the decision the board adopted, that there was a reasonable basis for the board's licensure action, and that the superior court correctly analyzed and rejected Wendte's administrative appeal.

II. FACTS AND PROCEEDINGS

Ronald Wendte has been a residential real estate appraiser in Ketchikan since he opened his own appraisal business, Wendte Services, in 1978. Wendte volunteered his time to handle the finances for several nonprofit children's sports organizations in Ket-chikan. His volunteer responsibilities included preparing gaming permit applications, collecting and depositing revenues, issuing checks, and planning raffles.

Between October 1993 and January 1997 Wendte stole over $250,000 from the Ketehi-kan Little League, Little League District 2, and the Kayhi Girls Basketball Club. In August 1998 Wendte pled no contest to one count of first degree theft, a Class B felony offense. Superior Court Judge Michael A. Thompson sentenced Wendte to five years in prison, with four suspended, and to ten years probation. He also ordered Wendte to complete 1,000 hours of community service and pay restitution of $257,594.80.

While Wendte was imprisoned, the Department of Commerce and Economic Development, Alaska Division of Occupational Licensing, notified him of its intention to seek disciplinary sanctions under AS 08.87.210(2) because of his theft conviction. Through his attorney, Wendte negotiated an agreement with the Division of Occupational Licensing to settle the disciplinary matter. The agreement recommended five years of professional probation and a $5,000 fine, payment of which would be stayed so long as he complied with the terms of his criminal probation and parole. By its own terms, the agreement was subject to approval by the Board of Certified Real Estate Appraisers. In March 2000 the board unanimously rejected the agreement and issued an accusation seeking either revocation or suspension of Wendte's license.

At Wendte's request, an administrative hearing was held in Juneau in January 2001. Wendte was represented by counsel, presented witnesses, and testified on his own behalf. The record also included letters written by members of the Ketchikan community to support his retention of his license. At the time of the hearing, Wendte had repaid $2,602.12 of the $257,594.80 he owed in restitution.

Administrative Hearing Officer David G. Stebing issued findings of fact, conclusions of law, and a proposed decision in July 2001; he concluded that Wendte's theft conviction qualified as a erime of moral turpitude under AS 08.87.210(2) and that the board had discretion to reject Wendte's agreement with the division. The hearing officer concluded that revocation of Wendte's license was too harsh because Wendte's crime was "not directly related to his appraisal activities." He recommended that the board suspend Wendte's license for two years and place him on professional probation for five years after he returned to active status.

In September 2001 the board met to consider whether to adopt the hearing officer's proposed decision. After conferring in executive session, the board declined to permit counsel to argue, but gave Wendte three minutes to address the board members. Immediately after Wendte completed his comments, the board unanimously voted to adopt the hearing officer's sanctions recommendation. Wendte's license was consequently suspended for two years, effective December 2001, to be followed by five years of probation.

Wendte appealed the board's decision to the superior court. He also petitioned the board to reconsider its decision. He also asked the board and the superior court to stay suspension of his license pending the resolution of his superior court appeal. The superior court ultimately denied Wendte's request to stay his suspension.

In February 2002 Superior Court Judge Patricia A. Collins affirmed the board's decision. The court held that there was substantial evidence to support disciplining Wendte for a erime involving moral turpitude under AS 08.87.210(2) and that the board properly acted within its discretion in sanctioning Wendte. The court held that "there is a direct relationship between a conviction for theft and a professional's ability to reflect high ethical standards for the profession."

Wendte appeals this order.

III. DISCUSSION

A. Standard of Review

Because the superior court sat as an intermediate court of appeal, we will independently review the merits of the board's administrative determination.

We review findings of fact in appeals of administrative decisions under the "substantial evidence" tests Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In this case, we will review the administrative hearing officer's findings of fact which were later adopted by the board and served as the basis for suspension of Wendte's license. The superior court did not conduct a de novo review of the board's decision.

When an appeal of an agency decision involves a question of statutory interpretation, we apply one of two standards. The "reasonable basis" test applies when an issue of law requires agency expertise. When an issue of law does not involve agency expertise, the "substitution of judgment" test applies. Because this appeal concerns a disciplinary statute authorizing the Board of Certified Real Estate Appraisers to exercise its own discretion in sanctioning license holders, we will apply the "reasonable basis" test.

B. The Board Had Authority To Sanetion Wendte Under AS 08.87.210(2).

Under AS 08.87.210(2), the Board of Certified Real Estate Appraisers may exercise its disciplinary powers under AS 08.01.075 if the board finds that an appraiser has "been convicted of a erime that involves moral turpitude. On its face, AS 08.87.210(2) only requires the board to find that a real estate appraiser has been convicted of a crime of moral turpitude in order to exercise its disciplinary powers.

The parties do not dispute that Wendte's felony theft conviction is a crime of moral turpitude. Instead, Wendte argues that AS 08.87.210(2) requires the board to find a nexus between a crime of moral turpitude and his ability to carry out his professional duties before issuing sanctions. He claims that because the board found both that his theft was "not directly related to his appraisal activities" and that his "crime [had] no direct nexus to his professional activity," he should not be sanctioned.

Wendte's argument is unconvincing. Nothing in the language of AS 08.87.210(2) suggests that the board may only sanction licensees who commit crimes of moral turpitude while they are performing their professional duties Wendte's argument fails to recognize that criminal violations may bear on one's fitness to practice a particular profession, regardless of whether the violations - are committed while the licensee performs professional duties.

In Alaska, it is common for professional licensing statutes to permit a board to impose sanctions for criminal misconduct occurring outside the seope of required professional duties. We have upheld sanctions imposed against professionals who committed crimes of moral turpitude when they were not carrying out professional responsibilities. Other courts have similarly interpreted professional disciplinary statutes authorizing sanctions against licensees who have committed crimes involving moral turpitude to cover crimes not committed while they performed professional activities.}

Although there are no reported Alaska cases applying AS 08.87.210(2), we have held in two comparable professional licensing cases that a licensing board need not establish that there is a nexus between a crime involving moral turpitude and one's ability to carry out the professional duties to issue sanctions. In Kenai Peninsula Borough Board of Education v. Brown, we upheld a school board's decision to dismiss a tenured teacher convicted of the crime of willfully diverting electricity, which the board held was a theft, and therefore a crime of moral turpitude. We did not require a showing of a nexus between the teacher's criminal conduct and his capacity to perform his job. Instead, we held that a "finding that a crime involving moral turpitude has been committed raises at least a presumption that there is a nexus between the teacher's act and the teacher's fitness to teach. "* We observed that, "[the legislature, in enacting certain criminal statutes, has established minimum acceptable moral standards for the state as a whole. If a teacher cannot abide by these standards his or her fitness as a teacher is necessarily called into question."

In a later case involving the same teacher disciplinary statute, we upheld the dismissal of a teacher who years earlier had engaged in sexual misconduct with a minor. Relying on Brown, we said, "it is well established that there need not be a separate showing of a nexus between the act or acts of moral turpitude and the teacher's fitness or capacity to perform his duties. "" We observed that if the school district had sufficient evidence that Toney had committed an act of moral turpitude, the dismissal was valid.

The reasoning of Brown and Toney is persuasive. Alaska Statute 08.87.210(2) contemplates a nexus between a crime involving moral turpitude and the ability to satisfy the requirements of the profession. We hold here that there is a presumed logical nexus between any erime of moral turpitude and the ability to satisfy the ethical standards of the real estate appraisal profession. The superior court correctly noted that when professionals commit crimes involving moral turpitude "their fitness to hold a position of trust is necessarily called into question."

Alaska Statute 08.87.210(2) contemplates that a crime involving moral turpitude necessarily bears on a real estate appraiser's trustworthiness, regardless of whether a licensee commits such a crime while acting as a real estate appraiser. The real estate appraisal profession requires reliability and honesty of its members. An appraiser who had been the first chairman of the Alaska Board of Certified Real Estate Appraisers, Alfred Ferrara, testified at Wendte's January 2001 hearing. He testified that the purchase of a house is "often the largest financial transaction many individuals ever get involved in." He explained that the appraiser is "the only objective party, quite often, in that transaction. **

Wendte argues that he has rebutted any presumption of a nexus between a crime of moral turpitude and fitness to perform duties. He cites the Brown court's observation that during the disciplinary hearing provided under the statute, "(olf course ... the teacher may attempt to demonstrate that the board should retain the teacher despite the finding of a crime involving moral turpitude." Wendte claims that he has overcome the Brown presumption because the board found that his erime did not have a direct connection with his real estate activities. He therefore claims he should not be sanctioned at all.

Wendte's argument is without merit,. The board found that "Wendte's theft conviction is not directly related to his appraisal activities." But that is not evidence that he sufficiently rebutted the presumption that he was unfit to be a real estate appraiser. As discussed above, Brown held that a finding that a erime of moral turpitude has been committed raises at least a presumption that there is a nexus between a professional's act and his fitness to practice his profession. Fitness to practice a regulated profession demands more than the professional's capacity to perfunctorily complete required activities. The board's finding that Wendte's crime was not directly related to his professional activities does not rebut Brown's presumption that there is a nexus between a crime of moral turpitude and one's fitress to hold a professional license.

The plain language of AS 08.87.210(2) suggests that there is a connection between a crime of moral turpitude and general fitness to be a real estate appraiser regardless of whether the crime was committed in the course of carrying out real estate appraising activities. Because the board properly found that Wendte's theft was a crime of moral turpitude, the board had discretion to impose sanctions. We therefore affirm the superi- or court's decision affirming the board's sance-tions.

C. Double Jeopardy

Wendte also argues that he cannot be sanctioned because the suspension of his professional license is a punishment that violates the prohibition on double jeopardy.

In Alaska, revoking or suspending a professional license is not "punishment" for double jeopardy purposes when it furthers a regulatory goal. In State v. Zerkel, the Alaska Court of Appeals held that administratively revoking a driver's license for refusing to submit to a blood aleohol test did not constitute punishment for double jeopardy purposes." The court there observed that "[al person who loses a professional license in an administrative proceeding is not subjected to 'punishment' for double jeopardy purposes, even though the revocation or suspension is based on misconduct that could be or has been prosecuted as a criminal offense. *" The court recognized that professional license revocation does not punish the licensee, but rather serves the regulatory goal of protecting the public from unfit practitioners."

We later observed in State v. Niedermeyer that administrative revocation or suspension of a professional license "can legitimately serve to deter conduct and still remain 'remedial for double jeopardy purposes so long as the revocation or suspension is based on conduct that bears a direct relation to the government's regulatory goals or to the proper administration and enforcement of the regulatory scheme.

Wendte argues that "the prohibition against double jeopardy prevents sanctioning a licensee, unless there is a direct nexus between the criminal conviction for a crime of moral turpitude and the professional activity of the licensee." Thus, he argues that because the board found that his theft was not connected to his appraisal activities, the suspension of his license does not bear a direct relation to the state's regulatory goals. Here again, Wendte asserts that only professional activities should bear on his fitness as a real estate appraiser. But as discussed above, there is a nexus between committing a crime of moral turpitude and one's fitness to be a real estate appraiser. Alaska Statute 08.87.210(2) reflects the board's regulatory goal of maintaining high ethical standards for the profession.

D. The Board's Decision Was Reasonably Based on Relevant and Current Information.

Wendte argues that the board did not base its decision on relevant or current information. He first contends that the board did not consider his post-conviction conduct, the effect of the hearing officer's proposed sane-tions on his ability to make restitution payments, and alternative lesser sanctions. In support, he cites only State, Division of In-swramce v. Schnell, in which we held that an insurance agent whose license was suspended was entitled to present updated evidence regarding his professional conduct during the period of time after disciplinary proceedings had been instituted. Without conducting a new hearing, the Alaska Division of Insurance took almost three years, 1992-95, to issue a decision disciplining Schnell, due in part to personnel changes at the division. We held that Schnell was entitled to present updated evidence describing (1) his post-1992 conduct, (2) the current effect that the hearing officer's proposed sanctions would have, and (8) alternative supervisory controls available through his employer. We concluded that this evidence was highly relevant to the issue of sanctions.

Schnell is inapposite. We directed the division on remand to consider updated evidence because there was a three-year delay between the hearing and the issuance of a decision disciplining Schnell. Schnell does not require licensing boards to apply particular criteria when imposing sanctions. Nor does Schnell require boards to give any particular factors a certain weight. Likewise, AS 08.87.210(2) here grants the board discretion to impose sanctions on real estate appraisers. Although the board must exercise its discretion reasonably, the statute does not require the board to consider any particular criteria when imposing sanctions.

Nonetheless, the record establishes that the hearing officer did consider Wendte's post-conviction conduct and the effect of proposed sanctions on Wendte's life. The hearing officer acknowledged that Wendte's real estate appraisal business "was rebounding after his incarceration." The hearing officer acknowledged that Wendte was not able to work during his incarceration, but found it significant that he had paid only $2,602.12 of the $257,594.80 in restitution he owed at the time of the January 2001 hearing. The hearing officer also considered alternative sanctions for Wendte. Taking into account that Wendte's crime was not perpetrated while conducting professional activity, the hearing officer recommended that the board suspend rather than completely revoke Wendte's license, even though the division had requested revocation.

The board therefore considered the "criteria" that Wendte requested, but drew a different conclusion than Wendte would have liked. As Judge Collins concluded, "Jt is fairly clear that the [bloard simply assigned different weight to the evidence than that suggested by Mr. Wendte."

Wendte next argues that the board's September 2001 decision to suspend his license did not reflect any new information about his conduct since the last hearing in January 2001. He contends that because the board voted immediately after Wendte finished speaking, it did not consider the updated evidence he offered. Wendte argues that Schnell "mandates that the [bloard hear updated information relevant to the issue of sanctions before imposing sanctions."

Wendte's reliance on Schnell is again misplaced. Wendte did not experience a three-year delay between his last opportunity to offer evidence and the issuance of a decision. Wendte's administrative hearing took place in January 2001. The board issued its final decision in September 2001. Less than eight months elapsed before the board imposed sanctions. This period was too short to imply the likelihood of material changes in Wendte's conduct.

Although Wendte had only three minutes to address the board at the September 2001 hearing, the board was under no obligation to allow either side to make any presentation. As the superior court noted, the only updated evidence Wendte presented at the September 2001 hearing concerned his most recent restitution payment of $4,450, bringing his total payment to $7,000. At the January hearing, Wendte had already presented evidence that his business rebounded after he was released from prison, submitted letters supporting him, and offered testimony of witnesses recommending him as an honest appraiser. The additional restitution is not legally significant, given both that a large amount remained unpaid, and that restitution payments were not the only factor the board considered in sanctioning Wendte.

Wendte also argues that the district attorney's sentencing memorandum in the erimi-nal case was insufficient "to set forth the factual basis for Wendte's conviction." He argues that he is not attacking the validity of his no-contest plea. Instead, he argues that the board should not have used the district attorney's sentencing memorandum as a factual basis on which to sanction him administratively because "[wihether Wendte did what the district attorney's sentencing memorandum alleges was never resolved in the criminal proceedings...."

The hearing officer's proposed decision relied on more than the district attorney's sentencing memorandum for its account of the details of Wendte's theft. To substantiate his findings of fact regarding the circumstances of Wendte's crime, the hearing officer cited Wendte's licensing file, the judgment and order of commitment and probation in State v. Wendte, the state's sentencing memorandum and exhibits in State v. Wendte, the Division of Occupational Licensing's investigative file on Wendte, sentencing letters, and the transcript of Judge Thompson's remarks at sentencing.

Moreover, Wendte did not ask the hearing officer not to consider the district attorney's sentencing memorandum. He only objected to the hearing officer using the sentencing memorandum to establish any instances of theft other than those the state advanced at Wendte's no contest hearing. Wendte did not, however, identify any particular passages in the sentencing memorandum which were unsubstantiated, nor does he do so now. He also has not demonstrated how the hearing officer's consideration of the sentencing memorandum harmed him. Wendte has therefore waived his argument that the hearing officer should not have considered the sentencing memorandum.

IV. CONCLUSION .

We AFFIRM the superior court decision affirming the sanctions imposed by the board.

      . It is not clear from the record whether the board formally denied Wendte's request for a stay of his suspension. In its brief, the state asserts that the board took no action on his motion and that it was therefore deemed denied under AS 44.62.540, which provides in part that "f no action is taken on a petition within the time allowed for ordering reconsideration, the petition is considered denied."

      . Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).

      . Id.

      . Id.

      . Newmont Alaska Ltd. v. McDowell, 22 P.3d 881, 883 (Alaska 2001).

      . Id.

      . Id.

      ._ AS 08.01.075 provides in part:
      (a) A board may take the following disciplinary actions, singly or in combination:
      (1) permanently revoke a license;
      (2) suspend a license for a specified period....

      . AS 08.87.210 provides:
      The board may exercise its disciplinary powers under AS 08.01.075 if, after hearing, the board finds a certified real estate appraiser has
      (1) violated a provision of this chapter or a regulation adopted by the board under this chapter;
      (2) been convicted of a crime that involves moral turpitude; or
      (3) committed, while acting as a real estate appraiser, an act or omission involving dishonesty, fraud, or misrepresentation with the intent to benefit the appraiser or another person or to injure another person.

      . Under Alaska law, an act of theft is commonly held to be an act involving moral turpitude. See Disciplinary Matter Involving Schuler, 818 P.2d 138, 140 & n. 1 (Alaska 1991) (holding that attorney's concealment of merchandise was crime of moral turpitude); Kenai Peninsula Borough Bd. of Educ. v. Brown, 691 P.2d 1034, 1039 (Alaska 1984) (holding that teacher convicted of willfully diverting electricity had committed crime of moral turpitude); see also 52A C.J.S., Larceny § 60(1)(b) (1968).

      . See, eg., AS 08.88.071(a)(10) (authorizing board to revoke or suspend license if real estate broker is "convicted of forgery, theft, extortion, conspiracy to defraud creditors, or a felony involving moral turpitude committed while licensed under this chapter"); AS 08.04.450 (providing that board may revoke license of accountant for "conviction of any crime, an essential element of which is dishonesty or fraud, under the laws of any state or the United States").

      . See, eg., Disciplinary Matter Involving Schuler, 818 P.2d 138 (Alaska 1991) (upholding two-year suspension from practice of law for district attorney convicted of concealment of merchandise); Kenai Peninsula Borough Bd. of Educ. v. Brown, 691 P.2d 1034 (Alaska 1984) (upholding dismissal of tenured teacher convicted of diverting electricity, a theft crime involving moral turpitude).

      . See, eg., Jennings v. Karpe, 36 Cal.App.3d 709, 111 Cal.Rptr. 776, 777-78 (1974) (holding that licensed real estate broker's conviction for engaging in oral sex with minor was crime of moral turpitude and grounds for revocation of license even though not connected with licensee's activities as real estate broker); Carp v. Florida Real Estate Comm'n, 211 So.2d 240, 241 (Fla.Dist.App.1968) (holding that registered real estate broker's bookmaking conviction was crime of moral turpitude and grounds for suspension or revocation of registration); Missouri Real Estate Comm'n v. McCormick, 778 S.W.2d 303, 308 (Mo.App.1989) (upholding suspension of real estate broker's license where broker plead guilty to theft related to insurance business).

      . 691 P.2d 1034 (Alaska 1984).

      . The statute at issue in Brown, AS 14.20.170, provided in part that "[al teacher ... may be dismissed at any time for ... immorality, which is defined as the commission of an act which, under the laws of the state, constitutes a crime involving moral turpitude...." See Brown, 691 P.2d at 1036 n. 1.

      . Brown, 691 P.2d at 1041.

      . Id.

      . Toney v. Fairbanks North Star Borough Sch. Dist., Bd. of Educ., 881 P.2d 1112 (Alaska 1994).

      . Id. at 1114.

      . Id.

      . Ferrara initially testified at the January 2001 hearing that he "usually [ ] would not refer someone ... who has had a criminal conviction of that type. ..." He later testified that he would look at the appraiser's post-conviction conduct to see if he was doing good work.

      . Brown, 691 P.2d at 1041.

      . Cf. Alaska R. Evid. 609 (allowing impeachment of witness based on conviction of crime involving dishonesty or false statement).

      . See Toney, 881 P.2d at 1114 (holding that dismissal of teacher was valid as long as school district had sufficient evidence that Toney had committed act of moral turpitude); Brown, 691 P.2d at 1041 (holding that school board had met its burden of going forward by finding that Brown had committed theft).

      . 900 P.2d 744 (Alaska App.1995).

      . Id. at 753.

      . Id. at 754.

      . 14 P.3d 264, 269 (Alaska 2000) (quoting Zerkel, 900 P.2d at 757).

      . 8 P.3d 351, 360-61 (Alaska 2000).

      . Id. at 354-55.

      . Id. at 360.

      . Id.

      . The board adopted the hearing officer's decision and did not consider evidence beyond the record created at the January hearing. In addition to payment of restitution, the hearing officer considered Wendte's post-incarceration conduct, community reaction to the crime, and the nature of Wendte's crime.

      . State v. Wendte, No. 1KE-97-99 Cr. (Alaska Super., March 22, 1999).

      . Walden v. Dep't of Transp., 27 P.3d 297, 304 (Alaska 2001) ("It is well-settled that a party must object to evidence at.the time it is offered in order to preserve the issue on appeal.").