author:
JOHNSON, V.P.J. LUMPKIN, Presiding Judge:
      LILE, Judge:

text:
    2002 OK CR 20
    Gerardo VALDEZ, Petitioner, v. STATE of Oklahoma, Respondent.
    No. PCD 2001-1011.
    Court of Criminal Appeals of Oklahoma.
    May 1, 2002.

      Robert A. Nance, F. Andrew Fugitt, Oklahoma City, OK, for Petitioner.
    Margaret K. Pfeiffer, Lee Ann Anderson McCall, Sullivan & Cromwell, Washington, DC, for Petitioner.
    Sandra L. Babcock, Attorney at Law, Minneapolis, MN, for Amicus Curiae.
    Susan Otto, Federal Public Defender for the Western District, Oklahoma City, OK, for Petitioner.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, for Respondent.
   ORDER GRANTING PETITIONER'S MOTION TO FILE SUBSTITUTED REPLY MEMORANDUM; ORDER DENYING MOTION FOR EVIDEN-TIARY HEARING AND DISCOVERY; OPINION GRANTING SECOND AP-PPLICATION FOR POST-CONVICTION RELIEF AND REMANDING FOR RESENTENCING

Opinion by

JOHNSON, V.P.J.

T1 Gerardo Valdez, Petitioner, was convicted of First Degree Malice Aforethought Murder and sentenced to death in Grady County District Court, Case No. CRF 89-139. Valdez appealed his Judgment and Sentence to this Court and we affirmed. Valdez appealed to the United States Supreme Court and his Petition for a Writ of Certiorari was denied. Valdez filed his original Application for Relief in this Court, in accordance with 22 O.8.8upp.1995, § 1089(D){(1), and that Application was denied. Petitioner filed a Petition for a Writ of Habeas Corpus in the Western District of Oklahoma and the Petition was denied. His appeal to this Court was denied; thereafter, his Petition for a Writ of Certiorari to the United States Supreme Court was denied.

2 In April of 2001, the State of Oklahoma filed its application for order setting execution date, and this Court scheduled Petitioner's execution for June 19, 2001. See Order Setting Execution Date, D 1990-461 (April 23, 2001)(not for publication). Petitioner requested a clemency hearing and the Oklahoma Pardon and Parole Board voted three to one to recommend clemency to the Governor. On June 18, 2001, Frank Keating, Governor of Oklahoma, granted a thirty (80) day stay of execution to evaluate the recommendation to grant clemency. He denied the recommendation for clemency on July 20, 2001. Thereafter, upon request of the State of Oklahoma, this Court scheduled Petitioner's execution for August 30, 2001. See Order Setting Execution Date, D 1990-461 (August 1, 2001)(not for publication). Governor Keating issued a second thirty (80) day stay of execution on August 17, 2001.

1 3 On August 22, 2001, Petitioner, through counsel, filed a Second Application for Post-Conviction Relief, Also filed that day was a Motion for Evidentiary Hearing and Discovery, an Application for Special Admission of Non Resident Attorneys, and a Motion for Leave to File Amicus Curiae Brief from the Government of Mexico. We directed the State of Oklahoma to file a Response to Petitioner's Second Application for Post-Conviction Relief, granted the Motion of the Mexican Government to file an Amicus brief, granted the Applications for Special Admission of Non Resident Attorneys, stayed the order for execution indefinitely pending the outcome of these proceedings, and established a briefing schedule. See Order Directing Response, PCD 2001-1011 (September 10, 2001)(not for publication).

T4 Attorneys Margaret Pfeifer, LeeAnn Anderson MeCall, Sandra Babcock, and Robert Nance entered their appearances in the case. In accordance with the schedule set forth in our September 10th, 2001 Order, the State of Oklahoma filed its Response and its two volume Appendix on November 9, 2001. The Brief Amicus Curiae of the United Mexican States was filed on November 9, 2001. On November 20, 2001, Petitioner, through counsel, filed a Motion for Leave to File Reply Memorandum, with the Reply Memorandum attached; on November 27, 2001, Petitioner moved to substitute the proposed Reply Brief Having considered that request, we find Petitioner's Motion for Leave to file the substituted Reply Memorandum should be and hereby is GRANTED.

15 The rules regarding the filing and review of subsequent applications for post-conviction relief in capital cases are set forth in Rule 9.7(G), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001) and 22 O.S.2001, § 1089(D)(8) and (9). Rule 9.7(G) provides:

(1) A subsequent application for post-conviction relief shall not be considered, unless it contains claims which have not been and could not have been previously presented in the original application because the factual or legal basis was unavailable, as defined in Section 1089(D)(9) of Title 22;
(2) An original application for post-convietion relief not filed in a timely manner shall not be considered, unless it contains claims which have not been and could not have been previously presented in a timely original application because the factual or legal basis was unavailable, as defined in Section 1089(D)(9) of Title 22.
(3) No subsequent application for post-conviction relief shall be considered by this Court unless it is filed within sixty (60) days from the date the previously unavailable legal or factual basis serving as the basis for a new issue is announced or discovered.

Title 22, Section 1089(D)(8) provides that if a subsequent application for post-conviction relief is filed, we may not consider its merits or grant relief unless the application "contains specific facts establishing that the current claims and issues have not been and could not have been presented previously" because the factual or legal basis was unavailable. 22 O.S.Supp.1995, § 1089(D)(1); see also Sellers v. State, 1999 OK CR 6, ¶ 2, 973 P.2d 894, 895. We now consider Petitioner's propositions in light of these restrictions.

T6 Certain factual claims are not disputed in this proceeding. The parties agree that the State of Oklahoma did not comply with the requirements of Article 36 of the Vienna Convention on Consular Relations, which requires local authorities to notify a detained foreign national, without delay, of his right to communicate with his consulate. Upon the detainee's request, Article 36 requires the authorities to notify consular officials of the person's incarceration without delay. Vienna Convention, art. 36, 21 UST. at 100-101. Because authorities in the State of Oklahoma did not comply with Article 36, the Mexican consulate was not notified of Valder's arrest for First Degree Murder. The Government of Mexico did not learn of Valdez's arrest, conviction and sentence until April of 2001, when one of Valdez's relatives contacted the Mexican consulate in El Paso, Texas and informed consular officials of Valdez's upcoming execution in Oklahoma.

I7 Once informed, consular officials assisted Valdez at his clemency hearing before the Oklahoma Board of Pardons and Paroles. The Government of Mexico retained experts and experienced attorney(s) to assist Valdez. Through investigation of his background and medical history, it was learned Valdez suffers from severe organic brain damage ; was born into extreme poverty; received limited education, and grew up in a family plagued by alcohol abuse and instability. Most significant of these findings, according to counsel for Valdez, is that he experienced head injuries in his youth which greatly contributed to and altered his behavior.

1,8 According to the experts who evaluated Valdez's Quantitative Electroencephalogram (QEEG), damage to the frontal lobe of the brain-as indicated in Valdez QEEG-disrupts the frontal lobes' ability to regulate the temporal lobes. "This malfunction creates thought disturbances, impairs judgment, and compromises impulse control.... Use of alcohol would exacerbate these problems." Another syndrome associated with the type of brain damage Petitioner has is the distortion of religious beliefs.

T 9 This information was presented to the Oklahoma Pardon and Parole Board at Valdez's clemency hearing, and as a result, the Board recommended that Valdez' death sentence be commuted to life in prison without the possibility of parole. This newly developed information, obtained through the Mexican consulates efforts and investigation, was then presented to Governor Frank Keating and he denied clemency. While acknowledging the State of Oklahoma had not complied with Article 36 of the Vienna Convention, Governor Keating stated he believed the violation did not have a prejudicial effect on the jury's determination of guilt and sentence.

10 In this subsequent Application for Post-Convietion Relief, Petitioner raises four grounds for relief;

1. This Court must follow the decision of the International Court of Justice in LaGrand and provide relief on the basis of Oklahoma's admitted violation of his rights under Article 36 of the Vienna Convention on Consular Relations;
2. Mr. Valdez is entitled to relief regardless of proof that Oklahoma's violation of Article 36 was prejudicial;
3. This Court must afford Mr. Valdez a full and fair opportunity to challenge his conviction and sentence on the basis of Oklahoma's admitted violation of Article 36; and
4. Mr. Valdez is entitled to a new trial.

T11 As noted above, we must consider these claims in light of the restrictions set forth in 22 O.S.Supp.1998, § 1089(D)(8) & (9). A legal basis of a claim is unavailable if: (1) it was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date; or (2) it is a new rule of constitutional law that was given retroactive effect by the United States Supreme Court or a court of appellate jurisdiction of this state and had not been announced on or before that date. A factual basis of a claim is unavailable if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date. 22 O.S. 2001, § 1089(D)(9).

112 Petitioner submits this Court should entertain this subsequent application for post-conviction relief on the ground that the legal basis for relief was previously unavailable. The legal basis upon which Petitioner relies is a June 27th, 2001, decision of the International Court of Justice (hereafter "ICJ") in F.R.G. v. United States, 2001 ICJ 104 (hereafter LaGrand ).

{13 The LaGrand case arose after the State of Arizona arrested, tried, and conviet-ed two German nationals, the LaGrand brothers, without giving them notice of their rights under Article 36 of the Vienna Convention. The brothers did not assert their right to contact and obtain consular assistance until after their convictions and sentences were affirmed in state appellate proceedings. The Ninth Cireuit affirmed the federal district court's denial of habeas corpus relief on the claim relating to the Article 36 Convention violation on grounds of procedural default. LaGrand v. Stewart, 133 F.3d 1253, 1259 (9th Cir.1998), cert. denied, 525 U.S. 971, 119 S.Ct. 422, 142 L.Ed.2d 343 (1998). It was not until after the Ninth Circuit's decision that the LaGrand brothers were formally notified of their rights to consular access. Even though the Government of Germany attempted to intervene and provisional orders were issued by the ICJ, the brothers were still executed.

T 14 In LaGrand, the ICJ found the United States, through the State of Arizona, had violated Article 36 of the Vienna Convention. It held this breach not only violated the rights of Germany under the treaty, but also violated the individual rights of the LaGrand brothers. F.R.G. v. United States, 2001 ICJ 104, ¶ 77 ("Based on the text of these provisions, the Court concludes that Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person.") ICJ held prejudice need not be shown to a show a violation of Article 36 of the Convention. Id. at ¶ 74.

T15 The ICJ also held the application of the rule of "procedural default" cannot be applied by the states individually or by the United States to prevent review of an Article 36 violation. Id. at ¶¶ 90-91. Specifically, the ICJ noted with reference to the LaGrands, that although the federal courts examined the claim of ineffective counsel, the procedural default rule "prevented them from attaching any legal significance to the fact, inter alia, that the violations of ... Article 36, paragraph 1, prevented Germany, in a timely fashion, from retaining private counsel for them and otherwise assisting in their defence as provided for by the Convention." Id. at ¶ 91. Accordingly, the rule of procedural default, in the LaGrand case, prevented "the full effect from being given to the purposes for which the rights accorded under this article are intended." Id.

{16 Petitioner submits this Court must follow the decision of the ICJ in LaGrand and provide relief to Petitioner on the basis of Oklahoma's admitted violation of his rights under Article 36 of the Vienna Convention. Petitioner advances several reasons in support of this proposition. First, because the United States signed and ratified the Optional Protocol to the Vienna Convention as well as the U.N. Charter acknowledging compliance with the decisions of the ICJ, it is bound by the ICJ's rulings concerning interpretation or application of the Convention. Second, principles of stare decisis require this Court to follow the ruling in LaGrand. Third, the doctrine of issue preclusion also makes the decision in LaGrand binding on the United States, because the United States fully developed, defended and argued its position in LaGrand, and knew it would be bound by the ICJ's decision. Fourth, under the rule of pacto sunt servanda, the United States is bound to follow the law of the treaties. Fifth, to apply the holding of the ICJ to some foreign nationals and not to others would violate the equal protection clause of the U.S. Constitution. Sixth, denying LaGrand's interpretation of Article 36 rights to Mr. Valdez because he is not German would create a non-uniform result contrary to the foreign relations law policy designed to achieve uniformity of result despite different legal systems.

117 Finally, Petitioner submits the State of Oklahoma is bound by the law of treaties to the same extent as the United States. U.S. Const., art. VI, § 2; Okla. Const.art.I, § 1. In its Amicus brief, the Government of Mexico also contends the State of Oklahoma cannot advance its doctrine of procedural default to preclude review of Valdez' claims because application of the doctrine would violate the Supremacy Clause. In LaGrand, the ICJ ruled the application of the rule of procedural default effectively prevented "full effect from being given to the purposes for which the rights accorded under this article [Article 36] are intended." LaGrand, 2001 ICJ 104, ¶ 91. In this case, application of the rule of procedural default would preclude this Court's ability to review and consider the merits of Valdez' claims, and Petitioner and the Government of Mexico submit the doctrine must give way to give full effect to the purposes of Article 36 of the Convention.

18 The State of Oklahoma argues LaG-rand is not binding on this Court. While acknowledging federal statutes and treaties are the supreme law of the land, U.S. Const., Art. IV, § 2, the State also argues the Supremacy clause does not convert violations of treaty provisions into violations of constitutional rights. The State of Oklahoma insists Petitioner has procedurally defaulted this claim because it is not based upon new law, and this Court, under the limited review afforded under Oklahoma's Capital Post-Conviction Act, is not entitled to grant relief on that basis.

119 The 1995 Amendments to the Capital Post-Conviction Procedure Act greatly cireumseribed this Court's power to apply intervening changes in the law to post-conviction applicants. See e.g. Walker v. State, 1997 OK CR 3, 31, f. 42, 933 P.2d 327, 337-338, f. 42, cert. denied, 521 U.S. 1125, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997). Now under the Act, for an alleged intervening change in the law to constitute sufficient reason for raising a claim in a subsequent proceeding to secure relief, a petitioner must show the intervening change in the law was unavailable at the time of his direct appeal or his original application. 22. O.S.2001, § 1089(D)(9). This Petitioner cannot do.

T 20 In Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998), the Supreme Court held Breard had procedurally defaulted his claim to a violation of Article 36 of the Vienna Convention when he did not raise the claim in state court proceedings below. In reaching this decision, the Court explained that while giving

respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret such, it has been recognized in international law that, absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State.

523 U.S. at 375, 118 S.Ct. at 1354; see also Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S.Ct. 2104, 2108, 100 L.Ed.2d 722 (1988). The Supreme Court noted the language of the Convention which provides the rights expressed in the Convention "shall be exercised in conformity with the laws and regulations of the receiving State" provided that the laws of the receiving State "must enable the full effect to be given to the purposes for which the rights accorded under this Article are intended." Article 2, 21 U.S.T. at 101. The Supreme Court also recognized the rule of procedural default applies to violations of the U.S. Constitution as well. Breard, id., 523 U.S. at 376, 118 S.Ct. at 1355.

€21 The State of Oklahoma submits, and we agree, that the legal basis for his claim was available to him from the time of his arrest, and consequently at the time of his first post-conviction application. In fact, other defendants in Oklahoma have raised claims relating to violation of the consular notification provisions of the Vienna Conviction and Petitioner has not advanced a reasonable explanation for his failure to previously assert the violation. See Flores v. State, 1999 OK CR 52, 994 P.2d 782; Martinez v. State, 1999 OK CR 33, 984 P.2d 813; Al-Mosawi v. State, 1998 OK CR 18, 956 P.2d 906. Therefore, the basis of Petitioner's claim-that his rights were violated when Oklahoma did not notify him of his right to consular notification under the Convention-could have reasonably been formulated prior to the ICJ decision in LaGrand.

122 Further, LaGrand is not a "new rule of constitutional law that was given retroactive effect by the United States Supreme Court or a court of appellate jurisdiction of this state." 22 O.S.2001, § 1089(D)(9). Only that portion of LaGrand which pronounced the Convention confers "individual rights" and which addressed our doctrine of procedural default is arguably new "law." Whether the Convention creates individual rights has been raised in numerous courts across the country for years, and could reasonably have been formulated prior to the ICJ decision in LaGrand. Whether the treaty creates individually enforceable rights or not, the United States Supreine Court in Breard specifically rejected the contention that the doctrine of procedural default was not applicable to provisions of the Vienna Convention and until such time as the supreme arbiter of the law of the United States changes its ruling, its decision in Breard controls this issue. Petitioner cannot be afforded review under our statutes on the ground that the ICJ's interpretation of the Convention in LaGrand constitutes a new rule of constitutional law.

1 23 Accordingly, we are not persuaded by Petitioner's claim that rules of procedural default may not be applied to claims arising from a violation of Article 36 of the Vienna Convention. The legal basis for the claim is not new and was available at the time of Petitioner's first Application for Post-convietion Relief regardless of the ICJ's decision in LaGrand. For this Court to decide the ICJ's ruling overrules a binding decision of the United States Supreme Court and affords a judicial remedy to an individual for a violation of the Convention would interfere with the nation's foreign affairs and run afoul of the U.S. Constitution.

124 For these reasons, this Court cannot reach the merits of Petitioner's subsequent Application for Post-Conviection Relief on the ground that the legal basis for relief was previously unavailable However, despite the parties' statements the contrary, we believe this Court should review this subsequent Application for Post-Conviction Relief on the ground that it would appear no factual basis of the Petitioner's prior medical problems was ascertained by prior trial or appellate counsel before the filing of Petitioner's prior appeals. 22, O.S.Supp.1998, § 1089(D)(9).

125 Petitioner was charged with murder in 1989. He had court-appointed counsel. His court-appointed counsel was inexperienced in capital cases; in fact, Petitioner's case was his counsel's first capital case. Petitioner's trial counsel did not have the financial resources available to properly investigate Petitioner's childhood, social history or other aspects of his life. While arguments can be made that trial counsel could have requested funds to hire expert witnesses, it is evident that trial counsel's inexperience in capital litigation caused him to believe such funds were unavailable. We cannot ignore the significance and importance of the factual evidence discovered with the assistance of the Mexican Consulate. It is evident from the record before this Court that the Government of Mexico would have intervened in the case, assisted with Petitioner's defense, and provided resources to ensure that he received a fair trial and sentencing hearing.

126 While we have no doubt the evidence discovered with the assistance of the Mexican Consulate could have been discovered earlier, under the unique cireumstances of this case, it is plain that the evidence was not discovered due to trial counsel's inexperience and ineffectiveness. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Strickland sets forth a two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. First, the defendant must show that counsel's performance was deficient, and second, he must show the deficient performance prejudiced the defense. Unless the defendant makes both showings, "it cannot be said that the conviction .... resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 466 U.S. at 687, 104 S.Ct. at 2064.

127 Although this Court has addressed claims relating to trial counsel's effectiveness in his prior appeals, in those appeals, this Court was not presented with a claim that trial court failed to discover evidence relating to Petitioner's social, mental, and health history. This Court was not presented with a claim that trial counsel did not inform Petitioner he could have obtained financial, legal and investigative assistance from his consulate. We believe trial counsel, as well as representatives of the State who had contact with Petitioner prior to trial and knew he was a citizen of Mexico, failed in their duties to inform Petitioner of his right to contact his consulate. In hindsight, and so many years following Petitioner's conviction and direct appeal, it is difficult to assess the effect consular assistance, a thorough background investigation and adequate legal representation would have had. However, this Court cannot have confidence in the jury's sentencing determination and affirm its assessment of a death sentence where the jury was not presented with very significant and important evidence bearing upon Petitioner's mental status and psyche at the time of the crime. Absent the presentation of this evidence, we find there is a reasonable probability that the sentencer might "have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. at 2069.

128 By our ruling today, this Court exercises its power to grant relief when an error complained of has resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. 20 O.S.2001, § 3001.1. Accordingly, we hereby GRANT Petitioner's Subsequent Application for Post-Conviction Relief, and REMAND this case to the District Court of Grady County for RESENTENCING.

LUMPKIN, P.J., concur in part/dissent in part.

CHAPEL and STRUBHAR, JJ., concur.

LILE, J., specially concurs.

LUMPKIN, Presiding Judge:

concur in part/dissent in part.

T1 I concur that the legal basis for Petitioner's claim was available at the time of his first application for post-conviction relief, Not only that, but it was available at trial, on direct appeal, and his petition for habeas corpus relief in the federal courts. See Valdez v. State, 900 P.2d 363 (Okl.Cr.1995); Valdez v. State, 933 P.2d 931 (Okl.Cr.1997); Valdez v. Ward, 219 F.3d 1222 (10th Cir.2000). His failure to raise the claim at those times bars future consideration of the issue. Therefore, we do not reach the merits of the claim in this subsequent Application for Post-Conviction Relief.

T2 Because of that fact, I dissent to the review of trial counsel's performance. The issue of ineffective assistance of trial counsel has been previously raised, and rejected. In his direct appeal, Petitioner argued trial counsel was ineffective for: 1) failing to challenge the State's expert's finding of competency; 2) failing to file a motion to suppress Appellant's confessions; 3) failing to request a Jackson v. Denno hearing on the volun-tariness of the confessions; 4) failing to request jury instructions explaining admissions standards for extra-judicial confessions; 5) failing to request jury instructions on second degree murder and voluntary intoxication; 6) failing to investigate and present testimony to rebut the State's evidence supporting the alleged aggravators; and 7) failing to object to numerous instances of prosecutorial misconduct. Valdez v. State, 900 P.2d 363, 387-388 (Okl.Or.1995).

T3 In his first Application for Post-Conviction Relief, Petitioner alleged trial counsel was ineffective for failing to raise a Cooper claim. Valdez v. State, 933 P.2d 931, 933-934 (Okl.Cr.1997). In his request to the 10th Circuit Court of Appeals for habeas relief, Appellant argued trial counsel was ineffective for: 1) failing to sufficiently challenge his competency; 2) failing to move to suppress his confessions or to request a hearing on their voluntariness; and 3) failing to request jury instructions on second degree murder and voluntary intoxication. Valdez v. Ward, 219 F.3d 1222, 1243-1245 (10th Cir.2000).

T4 During the course of the protracted litigation in this case from 1989 to the present, Petitioner has been represented by not less than four different lawyers. At each stage of the appeals process he has been represented by independent counsel, who have been experienced specialists in criminal law and procedure. Not once during this extended period of time have any of these lawyers raised the issue now presented to this Court, regardless of the fact the evidence has always been known and available to procure upon reasonable diligence.

T5 This Court has "repeatedly stated that Oklahoma's Post-Convietion Procedure Act is not an opportunity to raise new issues, resubmit claims already adjudicated, or assert claims that could have been raised on direct appeal." Rojem v. State, 925 P.2d 70, 72-73 (Okl.Cr.1996) (emphasis added). Complaints concerning the performance of trial counsel are barred on post-conviction when the claim was raised on direct appeal. Patton v. State, 989 P.2d 983, 988 (Okl.Cr.1999); Darks v. State, 954 P.2d 169, 172 (Okl.Cr.1998); Hale v. State, 934 P.2d 1100, 1102 (Okl.Or.1997); Smith v. State, 878 P.2d 375, 378 (Okl.Cr.1994). Accordingly, the doctrine of res judicata bars re-litigation of the issue of ineffective assistance of counsel in this case. As that issue is barred from consideration in this subsequent Post-Conviction Application, there is no legal basis to remand this case for resentencing.

T6 The legal doctrines of waiver and res judicata have been developed through the ages to ensure finality of judgments. By disregarding binding authority, in order to assist a defendant in litigating issues already decided or waived, this Court disregards the concept of the Rule of Law. The information presented in this subsequent application for post-conviction relief has already been presented to the Governor of the State of Oklahoma to consider in the exercise of the clemency power granted to that office. That presentation was a proper part of the due process granted to the Petitioner as a part of our state law. The fact the Governor did not find that evidence sufficient to warrant clemency does not give this Court the right to use the judicial fiat, especially when that fiat disregards both statutory and case law, to override that executive decision. Even in cases where a defendant has raised the issue of notification of counselor rights in the first instance, we have not found prejudice, which would require a new trial or resentencing. See Martinez v. State 992 P.2d 426, 429 (Okl.Cr.1999); Al-Mosawi v. State, 956 P.2d 906, 909 (Okl.Cr.1998).

17 In this case, more than ten years elapsed from the time of arrest until any interested party in this case thought it significant to seek assistance from the Mexican consulate. While it is commendable the Mexican government has provided the assistance it has at this time, the only available venue for presenting that information remains the clemency process. It must be remembered, at trial Petitioner was afforded the benefit of experts in the persons of two psychiatrists and one psychologist to assist in his insanity defense. There has been no deprivation of rights, experts, or legal counsel upon which this Court is empowered to disregard the law that binds it. Justice for everyone requires following the law for all. Once a court begins disregarding the law to achieve a desired result in a case, it starts down a slippery slope, which ultimately fractures and decimates the freedom guaranteed through the Rule of Law. This is not a case of actual innocence. The law provides the venue for raising that issue at anytime. It is merely a case where a defendant wants to put on more mitigation evidence to seek a better result on sentencing after exhausting all appeals. This Court should not make political decisions; it should bind itself to applying the law.

T8 For the reasons stated, I must dissent to the Court's decision to remand this case for resentencing.

LILE, Judge:

specially concurs.

T1 As the United States Supreme Court has noted, in cases such as this, it may be very difficult to establish that a failure to notify defendant of his treaty rights resulted in prejudice. In this case, that difficult burden has been met. Appellant is entitled to a re-sentencing hearing.

      . Valdez v. State, 1995 OK CR 18, 900 P.2d 363. The jury found the existence of three aggravating circumstances: that Valdez posed a continuing threat to society, that the murder was heinous, atrocious, or cruel, and that in perpetrating the homicide, Valdez created a great risk of death to more than one person. Although this Court affirmed Valdez's conviction and sentence on direct appeal, we found insufficient evidence to support the jury's finding that he perpetrated the homicide in such a way as to pose a great risk of death to other persons. Id. at ¶ 72, 900 P.2d at 384.

      . Valdez v. Oklahoma, 516 U.S. 967, 116 S.Ct. 425, 133 L.Ed.2d 341 (1995).

      . Valdez v. State, 1997 OK CR 12, 933 P.2d 931.

      . Valdez v. Ward, D.C.No. CIV-97-347-L (W.D.Okla.1998).

      . Valdez v. Ward, 219 F.3d 1222 (10th Cir.2000); Valdez v. Gibson, 532 U.S. 979, 121 S.Ct. 1618, 149 L.Ed.2d 481 (2001).

      . Executive Order, 2001-21 (June 18, 2001).

      . Executive Order, 2001-24 (July 20, 2001).

      . Executive Order, 2001-28 (August 17, 2001).

      . Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77; hereafter the "Vienna Convention" or "Convention."

      . Petitioner has provided this Court with Affidavits from the Honorable Juan Manuel Gomez Robledo (Exh. 5), from Oliver Albert Farres Martins (Exh. 6), and from Dr. Ricardo Weinstein, Ph.D. (Exh. 7).

      . The Affidavit of Dr. Weinstein shows he administered a quantitative encephalogram and concluded Petitioner "has moderate to significant impairment for abstract reasoning and logical analysis, flexibility of thought for complex stimuli, incidental learning of simple stimuli, and psychomotor actions ..." He concluded Petitioner had front-temporal lobe brain damage.

      . Affidavit of Maurice B. Sterman, Ph.D. (Exh. 9)

      . See f. 8.

      . F.R.G. v. United States, 2001 ICJ 104 (June 27, 2001), hereafter "LaGrand."

      . Sub-propositions to this argument are that (a) Article 36 of the Vienna Convention on Consular Relations provides foreign nationals who are detained by state or federal authorities a right to consular notification and assistance, and (b) the decision in LaGrand defining the scope of the rights guaranteed by Article 36 of the Vienna Convention is authoritative and binding on this Court under the Oklahoma Constitution and the Supremacy Clause of the U.S. Constitution.

      . Sub-propositions to this claim are (a) no prejudice need be shown to obtain relief for an Article 36 violation, and (b) even if this Court could properly require Mr. Valdez to demonstrate that Oklahoma's violation of his Article 36 rights caused him prejudice, the record shows overwhelming prejudice.

      . Sub-propositions to this claim are that (a) under LaGrand, Oklahoma may not invoke the doctrine of waiver or its procedural default rules in this case, and (b) even if Oklahoma's procedural default rule could be applied, Mr. Valdez's claim is new law within the meaning of a recognized exception to Title 22, Section 1089.

      . Sub-propositions to this claim are that (a) LaGrand and the plain language of Article 36 require this Court to give full effect to the rights secured by Article 36 by allowing a challenge to a conviction and sentence based on a violation of Article 36; (b) both LaGrand and the plain language of Article 36 require a new trial in this case, and (c) at a minimum, a new sentencing hearing is required.

      . The Government of Mexico, in its amicus brief, also submits the State of Oklahoma is bound by the terms of the United States' ratification of the U.N. Charter under the Supremacy Clause of the U.S. Constitution. It notes clear and unequivocal language of Article 94 of the U.N. Charter which specifically provides that "each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party."

      . The Government of Mexico also argues the ICJ's ruling is binding under customary international law, which is part of the law of the United States. Because the United States ratified the Optional Protocol to Article 36 of the Vienna Convention, it has specially agreed to be bound to the ICJ's jurisdiction over disputes involving the interpretation or application of the Convention.

      . The Government of Mexico also adopts this claim, additionally noting courts in the United States cannot provide a remedy to German nationals that is not equally applicable to non Germans without violating the United States' obligations under the Convention on the Elimination of All Forms of Racial Discrimination, which was ratified by the U.S. Senate in 1994.

      . The Government of Mexico acknowledges the judgment in LaGrand binds only the parties to the litigation, but argues the principles pronounced in the case, including that an apology for a breach of Article 36 of the Convention is insufficient, is authoritative precedent for all states party to the Convention. Amicus argue that future breaches of Article 36 by States within the United States involving non-German nationals would have a similar outcome before the ICJ.

      . Affidavit of Robert R. Robles, Petitioner's App., Exhibit 16.

      . Although the claim of ineffective trial counsel was raised in prior proceedings to secure relief, appellate counsel(s) also failed to discover this evidence without the assistance of the Mexican Consulate.

      . My Honorable colleague suggests the Court's ruling today "disregards the concept of the Rule of Law." What justice can this Court guarantee and protect if it cannot correct a Constitutional violation which is fundamentally unfair? The case before us today is truly a "special case" where the interests of justice and due process are genuinely implicated. Cf. Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting fundamentally unjust incarceration). While this case is not one of actual innocence, by our decision today, the majority finds it presents a persuasive claim that had appropriate counsel and assistance been provided, Petitioner might have proven he deserved a lesser punishment than death. The concept of the Rule of Law should not bind this Court so tightly as to require us to advocate the execution of one who has been denied a fundamentally fair sentencing proceeding due to trial counsel's ineffectiveness, particularly when that ineffectiveness is at least in part attributable to State action.

      . Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

      . Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996).

      . As I stated previously in Hain v. State, 852 P.2d 744, 753-754 (Okl.Cr.1993)(Lumpkin, P.J. concurring in part/dissenting in part):
      This Court in its holding cites "principals [sic] of fundamental fairness" in reversing for a new second-stage trial. Ante at 753. This puts me in a quandary, for how does one dissent to principles of fundamental fairness? This quandary, however, shows precisely why use of this equitable principle cannot serve as the basis for a ruling of law. As was said over a century ago:
      Equity is a Roguish thing: for Law we have a measure, know what to trust to, Equily is according to the Conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. 'Tis all one as if they should make the Standard for the measure, we call, a Chancellor's Foot, what an uncertain measure would this be? One Chancellor has a long Foot, another a short Foot, a third an indifferent Foot. 'Tis the same thing in the Chancellor's Conscience.
      Seldon, John, Equity Table Talk (Arber, Edward, ed. in English Reprints, nos. 1-7, London: 1869) at 46. What is "fundamental fair ness" to one judge may not be "fundamental fairness" to another.
      The same is true here. Either the doctrines of waiver and res judicata apply to all or the doctrines are eviscerated.


source: Caselaw Access Project

author: LUMPKIN, Presiding Judge.

license: Public Domain

text:
    2002 OK CR 21
    Kathryn Sue PEACOCK, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-2001-494.
    Court of Criminal Appeals of Oklahoma.
    May 2, 2002.
    Eric R. Jones, Ardmore, OK, for appellant at trial.
    Robert E. Christian, District Attorney, Dennis L. Gay, Assistant District Attorney, Waurika, OK, for the State at trial.
    Mark P. Hoover, Norman, OK, for appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Lori S. Carter, Assistant Attorney General, Oklahoma City, OK, for appellant on appeal.
   SUMMARY OPINION

LUMPKIN, Presiding Judge.

T1 Appellant Kathryn Sue Peacock was tried by jury and convicted of Conspiracy to Manufacture a Controlled Dangerous Substance (Methamphetamine) (63 O.S.1991, § 2-408) in Case No. CF-2000-11; Possession of a Controlled Dangerous Substance (Methamphetamine) (Count I) (68 O.S.Supp. 1999, § 2-402(A)), and Possession of a Controlled Dangerous Substance (Methamphetamine) in the Presence of A Child (Count II) (63 O.S. Supp.1999, § 2-402(C)) in Case No. CRF-2000-12; and Possession of a Firearm While Under DOC Supervision (21 O.S.Supp. 1997, § 1283(C)), in Case No. CF-2000-15, in the District Court of Jefferson County. The jury recommended as punishment twenty (20) years imprisonment and a $50,000 fine in Case No. CF-2000-11; four (4) years imprisonment in Count I, Case No. CF-2000-12; fifteen (15) years imprisonment and a $5,000 fine in Count II, Case No. CF-2000-12; and one (1) year imprisonment in Case No. CF-2000-15. The trial court sentenced accordingly, ordering the sentences to run consecutively. It is from this Judgment and Sentence that Appellant appeals.

T2 Appellant raises the following propositions of error in support of her appeal:

I. Because Appellant's separate convie-tions for Possession of a Controlled Dangerous Substance and Possession of a Controlled Dangerous Substance in the presence of a Child violate the statutory and constitutional prohibitions against double jeopardy, this Court must reverse one of the convie-tions and remand it with instructions to dismiss.
II. The prosecutor improperly argued that Appellant was guilty of the current charge of possession of methamphetamine because she had previously possessed methamphetamine, so this Court should reverse her possession charge or, in the alternative, modify her sentence.

[3 After a thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that reversal is warranted only as to Count I in Case No. CF-2000-12.

T4 In Proposition I, we find Appellant's convictions for possession of methamphetamine and possession of methamphetamine while in the presence of a child violate the statutory prohibition against double punishment. Title 21 O.S.1991, § 11A, provides that "an act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, ... but in no case can it be punished under more than onel[.]" "This Court has called Section 11 'the statutory prohibition on multiple punishment and held that Section 11 is not violated where offenses arising from the same transaction are separate and distinct and require dissimilar proof." Hale v. State, 888 P.2d 1027, 1028 (Okl.Or.1995); Clay v. State, 593 P.2d 509, 510 (Okl.Cr.1979).

15 In this case, the same evidence was used to support the felony charges and ultimately the convictions. The contraband discovered during the execution of the search warrant on February 8, 2000, was used to support both the possession charge (and conviction) and the possession in the presence of a child charge (and conviction). In this case, the crime of possession in the presence of a child could not have been committed without committing the offense of possession. Appellant's offense in this case could have been charged as either possession or possession in the presence of a child, but criminal charges should not have been brought under both statutory provisions. Accordingly, Appellant's convictions for possession and possession while in the presence of a child violate the statutory prohibition against double punishment. See Davis v. State, 993 P.2d 124 (Okl.Cr.1999). Therefore, the conviction in Count I, Possession of Controlled Dangerous Substance (Methamphetamine) in Case No. CRF-2000-12 is reversed with instructions to dismiss.

T6 In Proposition II, we find no plain error in the prosecutor's statement. Romano v. State, 909 P.2d 92, 115 (Okl.Cr.1995). The prosecutor's comment was not determinative of either guilt or punishment. When considered in light of the jury's instructions, the evidence, and the closing argument as a whole, the comment did not prejudice Appellant's right to a fair trial. See Roberts v. State, 868 P.2d 712, 718 (Okl.Cr.1994).

DECISION

T7 With the exception of Count I, Case No. CF-2000-12, the Judgments and Sentences are AFFIRMED. The Judgment and Sentence in Count I, Case No. CF-2000-12, is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

JOHNSON, CHAPEL, STRUBHAR, and LILE, JJ., concur.


author: CARL B. JONES, Judge.

text:
    Harold LIDDELL, Plaintiff/Appellant, v. The BOARD OF COMMISSIONERS OF THE COUNTY OF CLEVELAND ex rel. The BOARD OF EQUALIZATION OF THE COUNTY OF CLEVELAND, a Political Subdivision of the State of Oklahoma, and Denise Heavner, Cleveland County Assessor, in her official capacity, Defendants/Appellees.
    No. 96,642.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Jan. 28, 2002.
    Certiorari Denied April 9, 2002.
    Fred Gipson and Charles L. Broadway, Norman, OK, for Plaintiff/ Appellant.
    Mike McDanel, Assistant District Attorney, Norman, OK, for Defendants/Appellees.
   OPINION

CARL B. JONES, Judge.

11 On July 15, 1994, Plaintiff/Appellant filed the instant action against Defendants/Appellees for declaratory judgment, in-junctive relief and refund of excessive ad valorem taxes. Plaintiff is a long-time developer of commercial and residential property in Cleveland County. In early 1991, Plaintiff had some ownership interest in, among other properties, ten parcels of land which were the subjects of ad valorem tax protests in proceedings before the Cleveland County Assessor and/or the Cleveland County Equalization Board. Both before and during 1991, Plaintiff lodged several protests or complaints to the assessor (a predecessor of Defendant Heavner) that his properties were overvalued when compared to comparable properties of other taxpayers. The assessor promised that she would investigate Plaintiff's claims and either explain them or correct the over-valuations, but failed to do so. Of the numerous complaints made by Plaintiff to the assessor, Plaintiff filed protests or appeals to the Equalization Board in nine or ten instances.

T2 In his proceedings before the assessor and/or the Equalization Board, Plaintiff was granted relief in some cases-including a reduction of approximately $1,000,000.00 in the valuation of one commercial property and a reduction of about $500,000.00 in the valuation of another property-and he was denied relief in others. From adverse decisions of the Board, Plaintiff filed appeals of three decisions to the District Court of Cleveland County in June of 1991. All three of those appeals were dismissed-at Plaintiffs request-on or about the date they were set for trial; two on February 20, 1992, and the third on July 6, 1992. Plaintiff never refiled those claims. By the end of 1994, Plaintiff had disposed of all the properties which were the subject of these complaints, protests and/or appeals.

T3 In the instant proceeding, Plaintiff sought a declaratory judgment that would define the proper methods of valuation to be used by the assessor and an injunction prohibiting the assessor from applying a different method when valuing Plaintiffs current properties. Plaintiff also sought a refund of the overpayment of ad valorem taxes paid on his previously owned properties. The trial court granted Defendants' motion for summary judgment and Plaintiff appealed. The matter stands submitted without appellate briefs on the trial court record. See Rule 13(h), Rules for District Courts, 12 O.S. Supp.1993, Ch. 2, App. 1, and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp.1997, Ch. 15, App.

T4 We begin our analysis by concurring with the trial court's finding that Plaintiff likely would have prevailed on the merits of his case were it not for his failure to exhaust his administrative remedies and to avail himself of the clear, plain, speedy, and exclusive remedy provided by 68 O.S. § 2871 et seq. The record tends to support that the assessments about which Plaintiff complains were discriminatory: Plaintiff's properties appear to have been overvalued when compared to similar properties and the Assessor's Office apparently failed to use any of its stated accepted valuation methods in valuing Plaintiff's properties. In fact, the current assessor cannot determine what valuation method the previous assessor used, if any, to value Plaintiff's properties. The Assessor's Office also failed to employ its established procedures for evaluating complaints of overvaluation and evidently undertook no meaningful analysis of any of Plaintiff's complaints. We agree with the Defendants' observation, quoted in the trial court's order, that when Plaintiff "finally stepped up to the plate, he led off with a triple." Unfortunately for Plaintiff, the game was already over when he came to bat.

T5 Section 2871 et seq. provides, and provided in 1991, a speedy, adequate and exclusive remedy at law for Plaintiff to seek relief in each of the instances of overvaluation herein cited. Section 2876(D) plainly pre-seribes the method for which an aggrieved taxpayer may seek property valuation relief from the county assessor. Sections 2876(F) and 2877 provide for appeals from an assessor's decision to the county board of equalization. Section 2880.1 provides for appeals from the board of equalization to the district court in a trial de novo, and provides for appeals from the latter tribunal to the Oklahoma Supreme Court. Of particular import here, 68 O.S. § 2885(A) states, in relevant part, "The proceedings before the county assessor, boards of equalization and appeals therefrom shall be the sole method by which assessments or equalizations shall be corrected or taxes abated." (Emphasis added.) Plaintiff's decision to forego appealing any adverse decision of the County Equalization Board constituted a failure on his part to exhaust his administrative and legal remedies as to those claims. Similarly, Plaintiff's decision to dismiss the three appeals he filed in the district court also constituted a failure to exhaust administrative and legal remedies as to those three claims.

T6 In Muskogee Fair Haven Manor Phase I, Inc. v. Scott, 1998 OK 26, 957 P.2d 107, the plaintiffs lodged a complaint to the county assessor challenging the assessor's refusal to recognize their property as exempt from ad valorem taxes. They then appealed the assessor's adverse decision to the county equalization board, which also ruled against them. Rather than appealing that decision to the district court pursuant to 68 O.S. § 2880.1 or § 2886(A), the plaintiffs filed a new action for declaratory relief in district court. The Supreme Court held that the trial court lacked subject matter jurisdiction to decide the case because plaintiffs failed to exhaust their administrative remedies. The Court reiterated:

Indeed, Oklahoma's statutory procedure for seeking judicial relief from an illegal tax has, since its initial enactment in 1915, been upheld as a plain, speedy, adequate, and exclusive remedy within the legislative power to prescribe.

Muskogee Fair Haven Manor Phase I, Inc., at ¶ 17, 957 P.2d at 112-13 (emphasis in original; footnotes and citations omitted).

17 We also hold that Plaintiff is not entitled to declaratory or injunctive relief in this action under 42 U.S.C. § 1983 for alleged due process violations. Generally, § 1983 provides a remedy for parties deprived of constitutional or statutory rights by the conduct of one acting under color of state law. In National Private Truck Council, Inc. v. Okla. Tax Comm'n, 515 U.S. 582, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995), the Court reiterated that, as long as a state provides a clear and certain remedy, "States are afforded great flexibility in satisfying the requirements of due process in the field of taxation." Id., 515 U.S. at 587, 115 S.Ct. at 2354.

In determining whether Congress has authorized state courts to issue injunctive and declaratory relief in state tax cases, we must interpret § 1983 in light of the strong background principle against federal interference with state taxation. Given this principle, we hold that § 1983 does not call for either federal or state courts to award injunctive and declaratory relief in state tax cases when an adequate remedy exists.

Id., 515 U.S. at 589, 115 S.Ct. at 2355. State courts "must refrain from granting ... relief under § 1983 when there is an adequate legal remedy." Id., 515 U.S. at 592, 115 S.Ct. at 2357.

18 Even were we to find that Plaintiff could pursue his § 1983 claim in an action separate from his original tax protests, we would declare this action untimely. For limitations purposes, § 1983 claims are characterized as personal injury actions and are governed by state statutes of limitations. Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985). Title 95 O.S. Supp.1992 § 95(Third) (now § 95(3)) provided that personal injury actions in this state must be brought within two (2) years after the cause of action acerues. See Abbitt v. Franklin, 731 F.2d 661, 663 (10th Cir.1984) (applying two year limitation period of § 95(Third) to an Oklahoma § 1983 action). July 15, 1994, the date on which Plaintiff filed this action, came more than two years after Plaintiff knew, or should have known, that his properties were being comparatively overvalued.

T9 In summary, Plaintiff had available to him, in 1991 and before, a plain and adequate remedy for each of the complaints made by him. His failure to avail himself of those remedies serves as a jurisdictional bar to the present action.

10 AFFIRMED.

JOPLIN, V.C.J., and BUETTNER, J., concur.

      . Plaintiff's Application for Leave to File Record on Accelerated Appeal and for Leave to Supplement Record, consideration of which was previously deferred by an August 24, 2001 order of the Supreme Court, is hereby granted. Defendant Heavner's deposition is included in the appellate record and was considered in this appeal.

      . Section 2885(A) also provides, "Equitable remedies shall be resorted to only where the aggrieved party has no taxable property within the tax district of which complaint is made." As previously stated, Plaintiff had sold all of the property at issue by 1994. However, this provision is inapplicable here-in a suit initiated in 1994-because "a judge's powers in equity are not invocable when clear and adequate statutory remedies are available." Muskogee Fair Haven Manor Phase I, Inc., at ¶ 12, 957 P.2d at 111. A clear and adequate remedy was available to Plaintiff each year his properties were assessed up to and including 1991.


author: ADAMS, Judge:

text:
    2002 OK CIV APP 54
    DISCOUNT CIGARETTES, INC., d/b/a, Discount Cigarettes Smoke Shop, Appellant, v. The OKLAHOMA TAX COMMISSION, Appellee.
    No. 95,241.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Feb. 1, 2002.
    Certiorari Denied April 9, 2002.

      Michael S. "Mickey" Homsey, Oklahoma City, OK, for Appellant.
    Thomas E. Kemp, Jr., Jay L. Harrington, Dawn Elizabeth Cash, Oklahoma Tax Commission, Oklahoma City, OK, for Appellee.
   OPINION

ADAMS, Judge:

T1 The Oklahoma Tax Commission (OTC) received a complaint from five smoke shop operators in the Oklahoma City area alleging that Discount Cigarettes, Inc. (Appellant) was selling cigarettes in violation of the Unfair Cigarette and Tobacco Sales Act, 68 O.S.1991 § 326, et seq. (the Act) because prices were set too low at a location in Warr Acres and were set with an intent to injure competition. The shops attached copies of advertisements from the Warr Acres location and from another shop owned by Appellant to support the low pricing allegations.

T2 OTC conducted an investigation, and an auditor concluded that a violation of the Act had occurred. Following a hearing, an administrative law judge issued a proposed order which found Appellant's advertised prices were below the minimums allowed under the Act. The proposed order was adopted by OTC, and this appeal followed.

18 In considering this appeal, we review the whole record, but we do not reweigh the evidence or substitute our judgment for that of the ageney on a question of fact. The OTC order must be affirmed if the record contains substantial evidence to support the facts upon which the order is based, and if the order is otherwise free of error. City of Hugo v. State ex rel. Public Employees Relations Board, 1994 OK 134, 886 P.2d 485.

T4 Appellant attacks the OTC order on three bases, arguing (1) that the Act violates the "contract clause" of the United States and, Oklahoma Constitutions; (2) that the Act violates due process because it is unconstitutionally vague; and (8) that OTC improperly determined that certain incentives which Appellant received from cigarette manufacturers, i.e., "shelf rent," could not be considered in determining Appellant's "cost" under the Act. We address the arguments in reverse order.

T5 The Act makes it unlawful for retailers "to advertise, offer to sell, or sell" cigarettes or tobacco products at less than cost to the retailer "with intent to injure competitors or destroy or substantially lessen competition." 68 O.S.1991 § 328(a). Section 328(b) of the Act makes advertising at less than cost prima facie evidence of the requisite intent. "Cost," as calculated under the Act, includes certain business expenses plus the "basic cost of cigarettes and tobacco products." 68 O.S.1991 § 330.

T6 Section 327(m) defines "[blasic cost" as "the invoice cost ... or the replacement cost ... within thirty (30) days prior to the date of sale in the quantity last purchased, whichever is lower, less trade discounts" plus the full face value of required tax stamps if not already included in the manufacturer's list price, but not including a deduction for cash discounts. (Emphasis added). Section 337(b) says, "[mlerchandise given gratis or payment made to a retailer or wholesaler for display, or advertising, promotion purposes, or otherwise, shall not be considered in determining the cost of cigarettes and tobacco products to the retailer or wholesaler."

T7 The parties disagree on how to determine the "basic cost" element for the statutory formula. Appellant characterizes a payment known as "shelf rent" as a "trade discount" and, applying § 327(m), deducts this payment when determining basic cost. Appellant's analysis focuses on how "shelf rent" and another type of payment, a "buy down," similarly make products "more attractive to the consumer." Appellant considered both to be trade discounts (essentially, rebates) which lowered invoiced costs and therefore items that could be used to caleu-late "basic cost." OTC concludes that "shelf rent" is not a trade discount.

T8 According to the undisputed evidence in the record, a "buy down" is paid by manufacturers to lower the price of their products and make them more attractive to consumers. The manufacturers pay a "buy down" for a certain period of time, or based on the number of cigarette cartons on hand, or for a certain number of cartons to be sold by the retailer. "Shelf rent," also referred to in testimony as a "contract price" or "contract amount," is an amount paid to a retailer based on how much of the manufacturer's cigarettes are displayed, the location of the displays, the quantity of the manufacturer's products compared to those of other manufacturers, and the advertising and promotion of their cigarettes by the retailer.

T9 The terms "buy down" and "shelf rent" do not appear in the Act, and the term "trade discount" also is not there defined. Under the provisions of the Act, we need not determine whether "shelf rent" might be considered a "trade discount" in the abstract sense, because the Legislature specifically excluded advertising and promotional payments as deductions when calculating costs. Based on the undisputed evidence concerning "shelf rent," OTC did not err in concluding that those payments could not be used to lower Appellant's "cost" for purposes of the Act.

110 Appellant argues the Legislature left the Act unconstitutionally vague when it failed to precisely define "trade discounts." Although the Act does not precisely identify which payments are to be included in that term, § 337(b) clearly prohibits payments made for the purpose of compensating the retailer for promotion or advertising of the manufacturer's product from being considered. At least as to "shelf rent," the Act is not vague, and Appellant's argument fails.

T11 Finally, we consider Appellant's contention that the Act violates Article I, Section 10 of the United States Constitution and Article II, Section 15 of the Constitution of the State of Oklahoma. Appellate argues that the Act is unconstitutional because it impairs and renders void contractual obligations with cigarette manufacturers under which "shelf rent" is paid.

1 12 Appellant misapprehends the effect of the Act on its contracts with manufacturers. Appellant is not prohibited in any way from making agreements to receive "shelf rent" payments from manufacturers, and nothing in the Act makes the agreements void or illegal. The Act merely prevents Appellant from selling cigarettes below cost, as its "cost" is determined under the Act, and prohibits using payments received under those agreements from being used to reduce the Appellant's cost, for purposes of the Act. Appellant's "contract clause" challenge fails as well.

113 The OTC order is supported by substantial evidence, and the application of the Act is otherwise free of the errors alleged by Appellant. The order is affirmed.

AFFIRMED.

HANSEN, P.J., concurs; JOPLIN, V.C.J., sitting by designation, concurs.

      . Appellant does not otherwise challenge the Act's validity under either the Oklahoma or United States Constitutions.

      . The Act also addresses sales by wholesalers, but there are no allegations in this matter invoking those specific provisions. Only retailing activity is implicated here.

      . Most sections of the Act use the singular, "basic cost," when discussing cost calculations. However, 68 O.S.1991 § 327(m), when defining terms used in the Act, refers to "basic costs." For clarity here, the singular will be used.

      . This section provides, in pertinent part: "No State shall ... pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."

      . This section provides, in pertinent part: "No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed."


author: BILLINGS, Associate Presiding Judge:

text:
    2002 UT App 109
    Joseph W. ROHAN, Plaintiff and Appellant, v. Chad BOSEMAN, a minor; and Jerald Boseman, an individual, Defendants and Appellees.
    No. 20001148-CA.
    Court of Appeals of Utah.
    April 11, 2002.
    Rehearing Denied May 6, 2002.

      Joseph W. Rohan, Halliday & Watkins, PC, Salt Lake City, Appellant Pro Se.

      Mark S. Gustavson, Sandy, and Robert L. Jeffs and Rodney W. Rivers, Jeffs & Jeffs, Provo, for Appellees.
    Before JACKSON, P.J., and BILLINGS, Associate P.J. and DAVIS, J.
   OPINION

BILLINGS, Associate Presiding Judge:

1 Joseph W. Rohan (Rohan) appeals the trial court's dismissal of his negligence action and award of attorney fees and costs to Chad and Gerald Boseman (the Bosemans). We affirm.

BACKGROUND

1 2 In January 1997, Rohan suffered head injuries in a vehicular accident involving Chad Boseman. In April 1997, Rohan learned he had a closed brain injury.

13 Following the accident, Rohan, a licensed Utah attorney, continued to practice law with Halliday & Watkins, P.C. In early 1998, Rohan retained Halliday & Watkins to represent him in a negligence action against the Bosemans. On April 28, 1998, Rohan, through Halliday & Watkins, filed a complaint. Thereafter, the parties proceeded to conduct settlement negotiations and discovery. In an August 1999 letter, Rohan, through Halliday & Watkins, informed the Bosemans that he intended to terminate settlement negotiations and proceed to trial.

14 On October 28, 1999, a year and a half after Rohan's complaint was filed, the trial court issued an order to show cause as to why Rohan's action should not be dismissed for failure to prosecute. Following a hearing in November 1999, the trial court continued the order to show cause for sixty days.

, 15 On January 19, 2000, Rohan, through Halliday & Watkins, filed a certificate of readiness for trial. The Bosemans objected arguing, inter alia, that Rohan had failed to provide documents requested in discovery, and consequently, they had been unable to complete Rohan's deposition. They requested 120 days to complete discovery.

T6 In a conference on March 2, 2000, the trial court scheduled a final pretrial conference for June 5 and trial for June 20-23, 2000. The court ordered the parties to complete discovery by May 26, 2000.

T7 After the scheduling conference, the Bosemans filed a motion to compel production of the documents they had previously requested from Rohan. The motion was granted. Later in March, both parties designated trial witnesses and exhibits. Rohan's designations were through Halliday & Watkins and included medical experts.

18 Sometime in March 2000, Rohan concluded that Halliday & Watkins lacked the experience to try his case. Thus, he retained Robert Orton (Orton) of Fabian & Clendenin, P.C. In March and April, Orton attended supplemental depositions; in May, he examined medical records at the office of the Bosemans' counsel. However, Orton never filed a formal appearance in Rohan's action.

1 9 A week before the final pretrial conference, Orton informed Rohan that he could not depose experts in time for trial and he would not represent Rohan without a continuance. Thus, on June 2, 2000, Rohan filed a pro se motion to continue trial for ninety days and to extend discovery for sixty days so that Orton could "identify supplemental expert and fact witnesses," "conduct further discovery," and prepare for trial. In the motion, Rohan also sought the withdrawal of Holliday & Watkins and to substitute Orton as counsel.

{110 At the final pretrial conference on June 5, 2000, Halliday & Watkins appeared on Rohan's behalf. The trial court took Ro-han's motion to continue under advisement, but instructed the parties and counsel to prepare for trial. Later that day, the court denied the continuance because Rohan had failed to establish good cause as required by Utah law and because, under the cireum-stances, fifteen days before trial was too late to substitute counsel.

1 11 On June 6, 2000, Rohan filed a pro se notice of discharge and discharged Halliday & Watkins. The next day, he filed a pro se motion for a voluntary dismissal, arguing he lacked counsel and it would be manifestly unfair to require him to try his own brain injury case. The Bosemans opposed the motion arguing, inter alia, Rohan voluntarily discharged his counsel, he could not claim surprise with respect to his counsels' lack of experience, and they would suffer prejudice if Rohan's motion were granted. The trial court summarily denied the motion for the reasons specified in the Bosemans' objection.

[ 12 On June 15, 2000, Rohan filed a notice of inability to bring his case to trial The Bosemans responded that unless otherwise informed by the court, they would continue to prepare for trial. On June 19, 2000, the day before trial, Rohan filed a renewed motion for a continuance and voluntary dismissal, arguing the trial court's refusal to grant the renewed motion would violate the Americans with Disabilities Act (ADA).

{13 Rohan appeared pro se at trial At the outset, the court denied the renewed motion, concluding Rohan's assertion that the ADA required the court to grant a continuance or voluntary dismissal was without basis in law and fact. Rohan informed the court that he did not have any witnesses and was not prepared to proceed. Consequently, the Bosemans made a motion to dismiss the case with prejudice for failure to prosecute. The trial court granted the motion and awarded the Bosemans' attorney fees and costs incurred as a result of Rohan's "willful failure or refusal" to proceed with trial.

T 14 On August 7, 2000, Rohan filed a pro se motion for a new trial, primarily asserting the dismissal with prejudice violated the ADA, but also asserting the dismissal violated the United States and Utah Constitutions. The trial court denied the motion. Rohan appeals.

ISSUES AND STANDARDS OF REVIEW

$15 Rohan argues the trial court erred in denying his motions for a continuance and voluntary dismissal and in dismissing his case with prejudice for failure to prosecute. We review these actions of the trial court for abuse of discretion. See Brown v. Glover, 2000 UT 89, ¶ 43, 16 P.3d 540; Harmon v. Greenwood, 596 P.2d 636, 639-40 (Utah 1979); Maxfield v. Rushton, 779 P.2d 237, 239 (Utah Ct.App.1989).

116 Rohan also argues he was entitled to a continuance or dismissal without prejudice under the ADA. He additionally argues the denial of his motions violates his right to due process and equal protection under the United States and Utah Constitutions. These issues present questions of law that we review for correctness. See, e.g., State v. Mast, 2001 UT App 402, ¶¶ 7-8, 40 P.3d 1143.

117 Finally, Rohan argues the trial court erred in awarding attorney fees and costs to the Bosemans. Whether attorney fees are recoverable in the present case is a question of law that we review for correctness. See, e.g., Warner v. DMG Color, Inc., 2000 UT 102, ¶ 21, 20 P.3d 868.

ANALYSIS

I. Did the Trial Court Exeeed Its Discretion in Denying Rohan's Motions for a Continuance and Voluntary Dismissal?

{18 Rohan first argues the trial court exceeded its discretion in denying his initial motion for a continuance. In relevant part, Rule 40 of the Utah Rules of Civil Procedure provides that "the court may in its discretion, and upon such terms as may be just, ... postpone a trial ... upon good cause shown." Utah R. Civ. P. 40(b).

119 We conclude the trial court acted within its discretion in denying Rohan's initial motion for a continuance, which was based solely upon his desire for more experienced counsel. Rohan was aware that he had a brain injury from the outset, yet he proceeded through his firm, Halliday & Watkins, for more than two years. Then, in March 2000, he concluded he needed more experienced counsel. In November 1999, the trial court put Rohan on notice that he must prosecute his case. This is when Rohan should have decided who would represent him. Instead, Rohan waited until eighteen days before trial, over two years after he filed his complaint, to request a continuance and to formally substitute counsel. Rohan has not offered a reasonable explanation for his dilatory conduct. Under these circumstances, we cannot say the trial court exceeded its discretion in denying a continuance. Cf. Hardy v. Hardy, 776 P.2d 917, 926 (Utah Ct.App.1989) (concluding trial court did not act unreasonably in denying continuance where prosecution of case had been substantially delayed by failure to agree upon expert witnesses and retain new counsel).

120 Rohan next argues the trial court exceeded its discretion in denying his renewed motion for a continuance and motions for a voluntary dismissal because it is manifestly unjust to force a party with a brain injury to try his own case. In relevant part, Rule 41 of the Utah Rules of Civil Procedure provides that "an action may only be dismissed at the request of the plaintiff on order of the court based either on: (N) a stipulation of all of the parties who have appeared in the action; or (ii) upon such terms and conditions as the court deems proper." Utah R. Civ. P. 41(a)(2).

121 In assessing whether the trial court exceeded its discretion, Rohan contends we should adopt the analysis of the Tenth Circuit. In the Tenth Circuit, "[albsent 'legal prejudice' to the defendant, the [trial] court normally should grant such a dismissal." Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir.1997). "[RJlelevant factors the [triall court should consider include: the opposing party's effort and expense in preparing for trial; excessive delay and lack of dili-genee on the part of the movant; insufficient explanation of the need for a dismissal; and the present stage of the litigation." Id.

122 Applying the Tenth Circuit's factors, we conclude the trial court did not exceed its discretion in denying Rohan's motions for a voluntary dismissal. The initial motion was made two weeks before trial. Rather than proceeding through Halliday & Watkins, who had represented him throughout the proceedings, Rohan discharged them after his late motion to continue and substitute counsel was denied. Halliday & Watkins had designated expert witnesses for trial and were counsel of record. By not timely obtaining preferred counsel and by voluntarily discharging Halliday & Watkins just prior to trial, Rohan created his own crisis.

123 Moreover, the record shows that the Bosemans would have been prejudiced if Ro-han's motions for a voluntary dismissal had béen granted. Rohan represented to the court and the Bosemans that he was prepared to try his case in January 2000, then recounted that representation just days before trial, The Bosemans incurred costs in preparing for trial, specifically in deposing witnesses and obtaining experts. Thus, we cannot say the trial court exceeded its discretion in refusing to grant Rohan's motions for a voluntary dismissal. Nor can we say the trial court exceeded its discretion in concluding Rohan failed to establish good cause and thus in denying Rohan's renewed motion for a continuance.

IIL. Did the Denial of Rohan's Motions Violate the Americans with Disabilities Act?

124 Rohan argues the ADA required the trial court to grant him a continuance or dismissal without prejudice because he made a prima facie showing that he was a qualified individual with a disability. He further argues that a continuance or dismissal without prejudice was a reasonably necessary accommodation that would not have fundamentally altered the nature of the judicial process.

1 25 Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be exeluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C.A. § 12132 (West 1995) (emphasis added). To prevail on his ADA claim, Rohan must establish:

"(1) that he ... is a qualified individual with a disability; (2) that he ... was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (8) that such exclusion, denial of benefits, or discrimination was by reason of [his] disability."

Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir.1999) (quoting Tyler v. City of Manhattan, 849 F.Supp. 1429, 1439 (D.Kan.1994)) (emphasis added).

T26 Assuming, but not deciding, that the first two elements were met, Rohan's claim fails because he has not established that the trial court exeluded him from the court system or discriminated against him "by reason of his disability." The record shows the trial court's denial of his motions did not depend on the assumption that Rohan was a practicing attorney and thus could litigate his case. Rather, the record shows that the trial court denied Rohan's motion seeking the withdrawal of Halliday & Watkins and they were counsel of record. The court's actions were occasioned not by Rohan's disability, but by his refusing to prosecute his case in a timely manner through his counsel of record and as a sanction for his dilatory conduct. Thus, we conclude the trial court did not err in denying Rohan's renewed motion.

III. Did the Trial Court's Denial of Ro-han's Motions Violate Due Process or Equal Protection?

127 Rohan argues the trial court's denial of his motions for a continuance or voluntary dismissal violated his right to due process and equal protection under the United States Constitution and right to due process, uniform operation of laws, and access to the courts under the Utah Constitution. Ro-han's "brief fails to adequately set forth an argument as required by Rule 24(a)(9) of the Utah Rules of Appellate Procedure." State v. Gamblin, 2000 UT 44, ¶ 7, 1 P.3d 1108. "Instead of providing this court with meaningful legal analysis," Rohan's brief merely contains one or two general assertions in regard to each constitutional provision. Id. Although he cites one or two cases in regard to each provision, "he does not analyze these cases to demonstrate that his contentions compel reversal of the trial court's ruling. Rather [Rohan's] brief simply cites to these cases as support for his general [assertions]." Id. We accordingly decline to consider Rohan's constitutional claims. See id. at ¶ 8, 1 P.3d 1108; Utah R.App. P. 24(j).

IV. Did the Trial Court Exceed Its Discretion in Dismissing Rohan's Action with Prejudice Under Rule 41(b)?

128 It is well established that under Rule 41(b) of the Utah Rules of Civil Procedure, a trial court has the discretion to dismiss an action with prejudice for failure to prosecute without justifiable excuse. See, e.g., Maxfield v. Rushton, 779 P.2d 237, 239 (Utah Ct.App.1989). The party challenging the dismissal bears the burden of offering "'a reasonable exeuse for [his or her] lack of diligence.'" Country Meadows Convalescent Ctr. v. Utah Dep't of Health, 851 P.2d 1212, 1215 (Utah Ct.App.1993) (quoting Meadow Fresh Farms v. Utah State Univ., 813 P.2d 1216, 1218 (Utah Ct.App.1991)). However, the trial court's discretion "must be balanced against" the priority of " 'afford[ing] disputants an opportunity to be heard and to do justice between them.'" Maxfield, 779 P.2d at 239 (quoting Westinghouse Elec. Supply Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876, 879 (Utah 1975)). Thus, we consider the following factors in determining whether the trial court exceeded its discretion in dismissing Rohan's action:

(1) The conduct of both parties; (2) the opportunity each party has had to move the case forward; (8) what each of the parties has done to move the case forward; (4) what difficulty or prejudice may have been caused to the other side; and (5) most important, whether injustice may result from the dismissal.

Maxfield, 779 P.2d at 239. "[EJven where a trial court finds facts indicating that 'injustice could result from the dismissal of [a] case, it can dismiss when a plaintiff has 'had more than ample opportunity to prove his [or her] asserted interest and simply failed to do so." Country Meadows, 851 P.2d at 1216 (quoting Maxfield, 779 P.2d at 240).

T29 Applying the factors in the present case, from the outset, both parties proceeded to actively conduct settlement negotiations and discovery. In August 1999, Rohan informed the Bosemans that he intended to proceed to trial. A year and a half after the complaint was filed, the trial court issued an order to show cause for failure to prosecute. Thereafter, Rohan indicated to the court and the Bosemans that he intended to proceed to trial, In fact, in January 2000, Rohan, through Halliday & Watkins, filed a certificate of readiness for trial.

11 80 Despite his representation that he was prepared for trial, and although he was aware of his brain injury from the outset, and had hired counsel from his firm to represent him, Rohan did not seek more experienced counsel until approximately three months before trial. He then waited until just over two and a half weeks before trial to attempt to substitute counsel and inform the court and the Bosemans that he needed more time to prepare and find additional experts, although he had designated such experts. After the trial court denied, his motion to continue and substitute counsel, he proceeded to discharge Halliday & Watkins, who had represented him from the outset, creating his own crisis. Clearly, Rohan had ample opportunity to obtain competent experts and counsel and to prepare for trial. Rohan has offered no reasonable justification for his dilatory behavior.

131 Further, not granting the dismissal would have prejudiced the Bosemans because they incurred costs in locating witnesses and preparing for trial. A continuance or dismissal without prejudice would impose additional costs, including the costs of deposing new witnesses obtained by Rohan. The Bosemans were also inconvenienced by Ro-han's failure to prosecute.

132 Although a dismissal with prejudice deprives Rohan of the opportunity to litigate the merits of his negligence action, Rohan "had ample opportunity to litigate [his] case ... but abused such opportunity," and thus we cannot say the trial court exceeded its discretion in dismissing Rohan's case with prejudice. Hill v. Dickerson, 839 P.2d 309, 312 (Utah Ct.App.1992).

V. Did the Trial Court Errin Awarding Attorney Fees and Costs to the Bosemans?

33 Rohan argues the trial court's award of attorney fees and costs to the Bosemans did not meet the requirements of Utah Code Ann. § 78-27-56 (1996). The trial court awarded $4,632.50 in fees and $987.18 in costs that the Bosemans incurred between June 15 and June 20, 2000, as a result of Rohan's refusal to proceed with trial The trial court based its award on its "inherent authority to govern judicial proceedings and make appropriate sanctions" and on section 78-27-56.

134 As a threshold matter, Rohan does not challenge the award of fees based on the inherent authority of the court. Ordinarily "attorney fees are awarded only if authorized by a statutory or contractual provision." Jensen v. Bowcut, 892 P.2d 1053, 1058 (Utah Ct.App.1995). However, the Utah Supreme Court has stated that "'a court has inherent equitable power to award reasonable attorney fees when it deems appropriate in the interest of justice and equity'" Id. (quoting Stewart v. Public Serv. Comm'n, 885 P.2d 759, 782 (Utah 1994). "[Clourts [in other jurisdictions] have used their equitable power to award attorney fees where a party has acted ' "in bad faith, vexatiously, wantonly, or for oppressive reasons."'" Id. (citations omitted); see also Griffith v. Griffith, 1999 UT 78,¶ 14, 985 P.2d 255 (recognizing court's inherent powers to award attorney fees as a sanction for " 'delay, inconvenience and the expense resulting from [the attorney's) behavior" (quoting Barnard v. Wassermann, 855 P.2d 243, 248 (Utah 1993)) (alteration in original)).

135 The trial court found that Ro-han acted in bad faith and was dilatory. In challenging the trial court's findings, Rohan was required to "marshal the evidence, citing the appellate court to all the evidence supporting [the] trial court's ruling." Wardley Better Homes & Garden v. Cannon, 2001 UT App 48,¶ 7, 21 P.3d 235. Then, Rohan was required to "demonstrate why, even when viewed in the light most favorable to the trial court, the evidence is insufficient to support the challenged finding[s]." Id. Rohan did not meet his burden to marshal, and thus we assume the record supports the trial court's findings. See id.

T86 The trial court also based its fee award on section 78-27-56. That section provides, "[The court shall award reasonable attorney{[ ] fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith." Id.

137 Rohan argues the trial court erred in concluding that "the action" was without merit as a matter of law. However, the trial court did not find that the underlying negli-genee action was without merit. Rather, the court concluded that the Bosemans were entitled to fees and costs caused by Rohan's refusal to prosecute the case, as his refusal to prosecute was without merit and in bad faith. The court also concluded that Rohan's renewed motion for a continuance or voluntary dismissal based on the ADA was without merit.

138 We agree with the trial court that Rohan's renewed motion based on the ADA, filed the day before trial, was frivolous and without basis in law or fact. Thus, the first requirement of section 78-27-56 was met.

139 In regard to the second requirement, to find Rohan acted without good faith, the trial court was required to find that he: (1) "lacked an honest belief in the propriety of the activities in question;" (2) "intended to take unconscionable advantage of others;" or (3) "intended to or acted with the knowledge that the activities in question would hinder, delay, or defraud others." Valcarce v. Fitzgerald, 961 P.2d 305, 316 (Utah 1998). The lack of good faith finding "must be supported by sufficient evidence that one or more of these factors existed." Chipman v. Miller, 934 P.2d 1158, 1163 (Utah Ct.App.1997).

140 In conclusion of law six, the trial court stated that Rohan's failure to prosecute his case was "in bad faith and ... with an intent to hinder or delay the proceedings of this court." (Emphasis added.) Further, in its findings of fact, the trial court found that Rohan indicated to the Bosemans and the court that he intended to proceed to trial, filing a certificate of readiness for trial. At the final pretrial conference, the trial court instructed Rohan and his counsel to prepare for trial, and later that day, denied Rohan's motion to continue and substitute counsel. Nevertheless, two weeks before trial, Rohan discharged his counsel and filed his initial motion for a voluntary dismissal, which was denied. Five days before trial, Rohan informed the court and the Bosemans that a trial would not occur because he was unable to proceed. The Bosemans responded that they would prepare for trial absent a contrary order from the court. The day before trial, Rohan filed his renewed motion for a continuance or voluntary dismissal under the ADA, which the trial court concluded was without merit. At trial, Rohan appeared without witnesses, unprepared to proceed. We agree that such behavior supports a finding of bad faith. Thus, we affirm the trial court's award of attorney fees and costs.

CONCLUSION

T41 We conclude the trial court did not exceed its discretion in denying Rohan's motions for a continuance and voluntary dismissal and dismissing Rohan's action with prejudice. We also conclude the trial court did not err in awarding attorney fees and costs to the Bosemans. We therefore affirm.

€42 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JAMES Z. DAVIS, Judge.

      . The motion to continue and substitute counsel was actually filed eighteen days before trial.

      . Rohan also argues the trial court erred as a matter of law in denying his motion for a new trial after he made a prima facie showing that he was a qualified individual with a disability under the ADA. Rohan's arguments in support of his motion for a new trial do not materially differ from his arguments in support of his motions for a continuance and voluntary dismissal. Thus, we do not address them separately.

      . In relevant part, Rule 41(b) of the Utah Rules of Civil Procedure provides that "[f]or failure of the plaintiff to prosecute or to comply with ... any order of court, a defendant may move for dismissal of an action or of any claim against him."