author: JOE C. TAYLOR, Presiding Judge:

text:
    2003 OK CIV APP 49
    In the Matter of T.L. and L.N., Deprived Children. State of Oklahoma, Plaintiff/Appellee, v. D.N., Natural Mother, Defendant/Appellant.
    No. 97,308.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    April 29, 2003.

      Jeffery J. Sheridan, Assistant District Attorney, Muskogee, OK, for Plaintiff/Appellee.
    J. Eric Jones, Muskogee, OK, for Defendant/Appellant.
   Opinion by

JOE C. TAYLOR, Presiding Judge:

¶ 1 Natural mother, Debra Newton (Mother), seeks review of a judgment on a jury verdict terminating her parental rights to two minor children, T.L. and L.N. (Children). A third child, A.N., was originally a subject of this proceeding, but while the action was pending, reached the age of majority and has been dismissed from the case. The two issues raised by Mother on appeal are (1) whether the State of Oklahoma (State) presented evidence sufficient to sustain its burden of proving beyond a reasonable doubt that Mother’s parental rights should be terminated; and (2) whether the trial court erred in admitting evidence concerning the conditions that existed when Children were adjudicated deprived. Based on our review of the record, the parties’ briefs, and the applicable law, we answer the first question in the affirmative and the second in the negative. We find, however, the termination order is defective in that it does not contain certain mandatory findings required by Rule 8.2, Rules for District Courts of Oklahoma, 12 O.S.2001, ch. 2, app. We therefore affirm the judgment of termination but remand with instructions to enter a corrected final order that complies with Rule 8.2.

¶ 2 In July 1998, A.N., then age 16, T.L., age four, and L.N., age two, were taken into emergency protective custody based on allegations of sexual abuse of A.N., a genital injury to T.L., and general neglect and endangerment. State petitioned for adjudication of all three children as deprived on grounds that they did not receive proper parental care and guardianship, that their home was “filthy and unsafe for young children,” and that the two youngest children appeared malnourished. The petition also alleged the rape of A.N., and the injury to T.L., and Mother’s failure to protect the children. Mother stipulated to the allegations of the petition, and, in August 1998, the court entered an order adjudicating the children deprived. The Cherokee Nation later was permitted to intervene, and it is undisputed that Children are Indian children as defined by the Indian Child Welfare Act, 25 U.S.C. §' 1903(4).

¶ 3 The Department of Human Services’ (DHS) initial report to the court (and other reports thereafter) indicated Mother had “a history of living with abusive men” and that DHS had previously received referrals— some of which were confirmed, while others were ruled out — on the family. The initial report also stated Mother neglected the children, failed to protect them, and failed to provide proper medical care. It stated Mother was living with a female friend at the time of the report, and had not visited A.N. at all, but had regularly visited the two younger children, both of whom were (and are) in foster care.

¶4 The court approved a treatment plan requiring Mother to provide a home free of physical, emotional, and sexual abuse; attend parenting skills classes and obtain certain psychological assessments and counseling; recognize and take care of the children’s medical needs in a timely manner, including all immunizations; support the children financially; maintain a clean and safe home for at least six months; and provide adequate amounts of appropriate food for the children. Regular, periodic review hearings reiterated these requirements. It is undisputed that Mother was aware of these requirements and understood them.

¶ 5 In February 2000, at State’s recommendation, the court found that efforts to reunite the family had failed. State filed a petition to terminate Mother’s parental rights in January 2001, alleging Mother failed to correct the conditions leading to the adjudication of Children as deprived; she abandoned Children; she willfully failed to contribute to Children’s support; Children had been in foster care for 15 of the most recent 22 months; and termination was in Children’s best interests.

¶ 6 The matter was tried over a two-day period in July 2001. State called six witnesses, including a State DHS investigator whose investigation led to the children being removed from Mother’s home in 1998; the children’s primary DHS caseworker and permanency planning worker from Muskogee County; a DHS case and permanency planning worker from Sequoyah County, where Mother moved after leaving Muskogee County; a caseworker from the Cherokee Nation Indian Child Welfare Agency; and Children’s current foster mother.

¶ 7 The testimony in general showed that Mother was very slow to initiate work on the requirements of her treatment plan after it was entered, and that she brought progress on the plan to a complete halt in November 1999 when she abruptly decided to move from Muskogee to Sequoyah County. Mother told caseworkers she made the move in order to get married and take care of her ill mother, but even assuming the truth of that rationale the move resulted in a dramatic decrease in her visitation with Children, as well as the loss of her job and discontinuation of the minimal individual counseling services in which she had participated up to that time. Further, within a few months of making the move, Mother and her new husband had separated, and Mother began living with another man in another town. Mother had had another child in May 1999, and the new child was with her as well.

¶ 8 By the time of trial, according to the testimony, Mother was living in a “one and one-half to two-bedroom” house littered with debris (inside and out) and shared by Mother, Mother’s new boyfriend, Mother’s own mother, Mother’s brother, Mother’s new baby, and A.N. (who, as previously noted, had reached age 18 and been dismissed from these proceedings). According to the DHS workers, not only were Mother’s living accommodations inadequate and unsafe for the return of Children to Mother’s care, but Mother had failed to complete almost all of the other requirements of her treatment plan. She had lived independently and supported herself for fewer than six weeks out of the previous three years. Moreover, according to a DHS court report and testimony by one of the workers, the one time Mother had been reunited with Children for more than just a few hours of visitation — during a two-week period when Mother was living at a county shelter after the new baby was born, and Children were also at the shelter because they were between foster homes— Mother complained about what a “handful” Children were and wondered how much longer it would be before they would be placed in another foster home.

¶ 9 The DHS caseworkers testified Mother was still living in substantially the same manner and engaging in substantially the same behavior that led to the adjudication of Children as deprived in 1998. They stated that returning Children to Mother’s care was not in Children’s best interests and recommended termination. A social worker from the Cherokee Nation who was involved in the ease from its inception also testified that she had advised Mother on numerous occasions of the free or subsidized services available to Mother and encouraged Mother to pursue them, but that Mother had not followed the worker’s advice or attempted to take advantage of any of the services until after State moved to terminate her parental rights. The Cherokee Nation worker also recommended that Mother’s rights be terminated.

¶ 10 State rested after presenting its final witness, Children’s foster mother, who testified that Children were doing well in her family’s care, and that the foster family was willing to retain custody of Children. Mother demurred to State’s evidence and moved to dismiss, which the trial court denied. Mother then rested without putting on any evidence. The jury returned a verdict making specific findings that Mother had failed to correct the conditions leading to the deprived adjudication; Mother had been given at least three months to correct the conditions but failed to do so; and termination of Mother’s parental rights was in Children’s best interests. The jury further determined that Children had been in foster care for 15 of the most recent 22 months, and that termination was in their best interests. The trial court entered judgment on the jury’s verdict, and Mother appeals.

¶ 11 Because this is a case involving Indian children, the proceedings must comply with the provisions of both the federal ICWA, 25 U.S.C. §§ 1901 through 1963, and its Oklahoma counterpart, the Oklahoma ICWA, 10 O.S.2001 §§ 40 through 40.9. See In re J.W., 1987 OK CIV APP 60, 742 P.2d 1171. Mother does not contend State failed to comply with these Acts. Rather, she alleges as error the trial court’s failure to sustain Mother’s demurrer to State’s evidence as to the sufficiency of the evidence and as to the length of time Children had been in foster care before termination proceedings were filed. Mother also asserts the trial court erred by admitting evidence concerning the conditions existing when Children were taken into protective custody.

¶ 12 The statutory grounds for termination of parental rights are found at 10 O.S.2001 § 7006-1.1. Ordinarily, the State’s burden is to prove one or more of these grounds by “clear and convincing” evidence. However, in ICWA cases, State must prove “beyond a reasonable doubt” that continued custody by the parent is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(f); In re J.W., 1987 OK CIV APP 60, ¶ 15, 742 P.2d 1171, 1175; In re M.D.R., 2002 OK CIV APP 75, ¶ 6, 50 P.3d 1160, 1161. Appellate review of the evidence is thus directed toward assuring the evidence adduced by State, if believed, would support a conclusion by any rational trier of the facts that the State’s evidence demonstrated beyond a reasonable doubt that continued custody by Mother would result in serious damage to Children. State has met its burden here.

¶ 13 As discussed above, State presented evidence by six witnesses, whose testimony was unrefuted and demonstrated a long-term familiarity with Mother’s and Children’s situations. The testimony clearly supported State’s characterization of Mother as unable or unwilling to care for Children and of having a history of being involved with abusive partners to whom Mother turned over responsibility for Children’s discipline. Mother’s living situation when Children were adjudicated deprived was abhorrent. Her current situation is not much better and is certainly inadequate to accommodate two additional children of elementary school age. There is ample evidence indicating that Mother made little or no effort to improve herself or her situation during most of the time period that Children have been in foster care, and no evidence indicating Mother has any desire of her own to make such efforts now; in fact, one DHS worker testified that she had communicated more with Mother’s current boyfriend about the case than she had with Mother.

¶ 14 We also note that Children had been in foster care for more than 28 consecutive months at the time State filed its termination petition — a period considerably longer than the statutory limit of “fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition” for termination under 10 O.S.2001 § 7006-1.1(15). There is no evidence that the chief reason for foster care placement of this length of time was “the delay attendant to [Mother’s] exercise of [her] constitutional right to a jury trial,” In re M.C., 1999 OK CIV APP 128, ¶ 7, 993 P.2d 137, 139, and we, therefore, find no basis for Mother’s argument that State’s evidence on this issue was somehow deficient.

¶ 15 Accordingly, we find that State’s evidence was sufficient to convince a rational juror beyond a reasonable doubt that Mother failed to correct the conditions leading to the deprived adjudication, that Children had been in foster care for 15 of the 22 months immediately preceding the filing of the termination proceedings, and that Children’s emotional or physical safety and security would be jeopardized if Children were returned to Mother’s custody. We therefore reject Mother’s proposition of error on the ground of insufficient evidence.

¶ 16 Mother next alleges the trial court committed reversible error by admitting evidence related to the conditions existing when Children were adjudicated deprived. The crux of Mother’s argument on this point is that, because Mother stipulated to the allegations of State’s petition to adjudicate Children deprived, testimony and other evidence admitted at trial which went to the conditions in which Children were living when they were taken into protective custody was rendered either irrelevant or cumulative and unduly prejudicial under 12 O.S.2001 §§ 2402 or 2403.

¶ 17 We review a trial court’s evidentiary determinations for abuse of discretion only. “The relevance and admissibility of evidence are matters entrusted to the sound legal discretion of the trial court.” In re J.M., 1998 OK CIV APP 141, ¶ 6, 964 P.2d 972, 973-74.

¶ 18 The evidence to which Mother objected at trial on this issue was testimony by a DHS investigator and a deputy sheriff who were called to the house where Mother lived when Children were taken into protective custody. The witnesses described the information received by DHS which led them to the home (including information that A.N. had been raped), the house’s squalid and unhealthy condition, Children’s malnourished state, and Children’s and Mother’s reactions to Children being taken away.

¶ 19 Although it is true, as Mother argues, that this evidence was highly prejudicial, Mother’s argument ignores the fact that the evidence is directly relevant to two of the major elements that State must prove in order to terminate Mother’s parental rights: that Children were adjudicated deprived because of certain conditions which were caused or contributed to by acts or omissions of Mother, and that Mother failed to correct those conditions despite being given time to do so. 10 O.S.2001 § 7006-1.1(A)(5); see also In re J.M., 1998 OK CIV APP 141, 964 P.2d 972; In re M.K., 1998 OK CIV APP 118, 964 P.2d 241.

¶20 We find inapplicable Jones v. State, 1987 OK CR 103, 738 P.2d 525, the authority on which Mother relies to argue that the evidence, even if relevant, was unduly prejudicial and thus excludable under 12 O.S.2001 § 2403. Jones is a criminal case in which the Court of Criminal Appeals held the danger of unfair prejudice outweighed the probative value of allowing the jury to view more than one graphic color photograph of a murder victim whose body had been recovered from a river. The Court held that such evidence was cumulative and unnecessary to establish certain elements of the State’s case. Id. at ¶¶ 6-9, 738 P.2d at 527.

¶ 21 In the case at bar, however, the testimony by the DHS investigator and deputy sheriff were needed to establish and explain to the jury an essential element of State’s case by explaining the allegations of the adjudication petition. Without illustrating the conditions that existed when Children were taken into custody, State could not prove that Mother had failed to correct those conditions. The witnesses did not go into extreme, undue, or graphic detail, and Mother was afforded a full and fair opportunity to cross examine each witness at length. No graphic photos or inflammatory language was used, nor were photos or other visual exhibits introduced. We view the situation as distinguishable from Jones, and that case provides no authority for us to find an abuse of discretion in the trial court’s decision to allow the evidence about which Mother complains. We therefore reject Mother’s argument on this proposition of error.

¶ 22 Though not raised by Mother on appeal, a final issue which must be addressed concerns the final order entered by the trial court on the jury’s verdict. The order is flawed in that it does not contain the recitations required by District Court Rule 8.2, 12 O.S.2001, ch. 2, app.: the order lacks a recitation finding compliance with the ICWA, a finding of compliance with Oklahoma’s Uniform Child Custody Jurisdiction Act (UC-CJA), and specific findings as to Children’s full legal names and birth dates. Inclusion of such findings is mandatory, not optional, under rule 8.2. See also In re M.D.R., 2002 OK CIV APP 75, ¶ 9, 50 P.3d 1160, 1162. The record presented reflects compliance with the ICWA as well as the UCCJA, and as noted above Mother does not challenge the validity of the judgment on either of these grounds; thus, we do not vacate or reverse the trial court’s judgment due to these defects, but instead remand the case with instructions to the trial court to take such actions as are necessary to correct the delineated deficiencies in the final order. The court’s judgment is otherwise affirmed in all respects.

¶ 23 AFFIRMED AND REMANDED WITH INSTRUCTIONS.

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

      . An affidavit from a Department of Human Services child welfare worker in support of the emergency order recites that A.N., who was then age 16, had reported being touched inappropriately by her stepfather, and that she had been raped by a man who had been living in her home after the stepfather gave the man “permission” to have intercourse with A.N. In addition, T.L., who was four years old at the time, was reported to have an injury to his penis, which the stepfather admitted inflicting. The affidavit also recited dangerous conditions present at the home, and stated there were numerous people living in the home, including four adults, two teenagers, and two small children, but only three beds. Since the date these proceedings were filed, A.N. has reached the age of majority, and State did not seek to terminate Mother's parental rights as to her.

      . Later reports indicated Mother had settled her differences with A.N., however, and resumed visitation. A.N. reached age 18 in March 2000 and was dismissed from the case. By the time of trial in July 2001, she apparently was again living in the same house with Mother.


source: Caselaw Access Project

author: CAROL M. HANSEN, Judge:

license: Public Domain

text:
    2003 OK CIV APP 50
    Aleta COX, Reba Brotherton, Juanita Weaver, and Eudene Cheek, Plaintiffs/Appellants, v. Ronald Gene CLIFTON, Tamara Clifton, Michael Todd Clifton, and Wendy Clifton, Defendants/Appellees.
    No. 97,677.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    May 2, 2003.

      Dean Hart, Jr., Hart & Hart, Pauls Valley, OK, for Plaintiffs/Appellants.
    Bill C. Lester and Lawrence E. Bonnell, Bonnell and Bonnell, Purcell, OK, for Defendants/Appellees.
   OPINION BY

CAROL M. HANSEN, Judge:

¶ 1 In Oklahoma, the general rule is that a parol gift of land, accompanied by possession by the donee" will be enforced in equity when the donee has been induced by the promise of the gift to make valuable improvements to the land, of a permanent nature, and to such an extent as to render a revocation of the gift unjust, inequitable, and a fraud upon the donee. Such a case will take the case out of the statute of frauds, and entitle the donee to enforce specific performance of the gift and to defend his possession against the donor or his heirs. It must be shown, however, that possession was given and taken in pursuance of and in reliance on the gift, with knowledge and consent of the giver, and that such possession was exclusive. Loris v. Patrick, 1966 OK 79, 414 P.2d 249 citing Johnson v. Kimmell, 1935 OK 311, 172 Okla. 315, 44 P.2d 978.

¶ 2 Appellants, Aleta Cox, Reba Brother-ton, Juanita Weaver, and Eudene Cheek filed this action alleging ownership of certain real estate in McClain County through a warranty deed from Vida Clifton, their mother, dated October 8, 1997. They claimed Defendants occupied and used a portion of their property and refused to vacate the property or to pay for its use. They sought compensation for 24 months rental and for immediate possession of the property.

¶ 3 Defendants, Michael and Wendy Clifton, answered, stating they owned one acre of the property in question through an oral gift to Michael from their grandparents, Vida and Floyd Clifton, in December of 1990. They alleged they had made valuable improvements to the property in excess of $40,000.00 in reliance upon the gift. Defendants, Ronald and Tamara Clifton, made similar claim of an oral gift of one acre to Ron, but alleged they had made $10,000.00 in improvements.

¶ 4 After a bench trial, the court found that to allow Appellants to prevail would be unjust enrichment. It quieted title in the described one acre in Michael Todd Clifton and the described one acre in Ronald Gene Clifton. The four Plaintiffs appeal, arguing a sole proposition of error: that the decision of the trial court is against the clear weight of the evidence and is contrary to law and established principles of equity. They argue the facts presented did not support an oral gift of land. Wé disagree.

¶ 5 Testimony showed Michael and Ronald Clifton believed their grandparents gave them each one acre of the land. Their grandparents had given, by deed, another brother one acre of the land. Michael moved onto his one acre, and with the aid of his father and grandfather, repaired and refurbished a home located on the property. They drilled a well, built a fence, and put in a septic tank. Their grandfather advised Michael where to put the trailer to accommodate a water well. Ron Clifton moved on his one acre with his grandfather advising him where to put his mobile home and where to drill a well. He built a driveway, installed a septic system, and fenced the property. This all took place long before the grandparents died. At no time did Floyd or Vida repudiate the gift, request the two to leave or pay rent. Ronald and Michael have remained in possession of their tracts from the time of the gifts to the present.

¶ 6 To sustain a parol gift of real estate, the evidence in support thereof must go further than a mere preponderance; the same must be clear, explicit, and convincing as to every element necessary to constitute such a valid gift. There must be (1) intention to give; (2) delivery; and (3) acceptance. Travelers Ins. Co. of Hartford, Conn. v. Baker, 1938 OK 150, 182 Okla. 191, 77 P.2d 23.

¶ 7 In a case of purely equitable cognizance, the trial court’s judgment will not be disturbed on appeal unless clearly against the weight of the evidence. Davenport v. Board of Education of City of Drumright, 1951 OK 102, 204 Okla. 356, 230 P.2d 271. As in Davenport, here the evidence fully satisfies the requirements for establishing a valid gift of the land by parol under the rules set out above. The decision of the trial court is not clearly against the weight of the evidence.

¶ 8 Appellees request for appeal related attorney fees is denied.

¶ 9 AFFIRMED.

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

      . By amended petition, Appellants sought quiet title and ejectment.

      . Floyd Clifton died in August of 1997 leaving Vida Clifton as the sole owner of the property as the surviving joint tenant. Vida died in December of 1997.

      . Testimony indicated when he was offered a deed to the land Ron declined for fear an impending divorce might compromise his ownership.

      . The mobile home burned in October of 2002 and Ronald was forced to move, but he still retains control of the property.

      . Michael lived on the property and raised his family there until late 2000 when he moved to Purcell, Oklahoma, to take a position as Assistant Fire Chief there. He still retains control over the property.


author: TOM COLBERT, Vice Chief Judge:

text:
    2003 OK CIV APP 52
    Brenda FLEMING, Petitioner, v. OWENS ILLINOIS INC., Liberty Mutual Insurance Company, and The Workers’ Compensation Court, Respondents.
    No. 98,723.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    May 13, 2003.
    Gary G. Prochaska, Foshee & Yaffe, Oklahoma City, OK, for Petitioner.
    Aimeé J. Treece, Oklahoma City, OK, for Respondents.
   Opinion By

TOM COLBERT, Vice Chief Judge:

¶ 1 Claimant, Brenda Fleming, seeks this Court’s review of an order of the workers’ compensation court determining that her motion to reopen is barred by the statute of limitations. Because the relevant.facts are not in dispute, the issue presented for our review is one of law and we sustain the order.

BACKGROUND

¶ 2 Claimant suffered an on-the-job injury on July 8, 1987, while employed by Employer, Owens Illinois, Inc. She received workers’ compensation benefits and, on July 22, 1991, was adjudicated permanently partially disabled (PPD). On September 14, 1995, the workers’ compensation court entered an order on a change in condition, awarding additional PPD and “continuing medical care ... including prescriptions by [Dr. Duncan], until further order of this Court.”

¶ 3 On September 17, 1998, the workers’ compensation court entered a “miscellaneous order” directing Employer to reimburse Claimant $382.35 for expenses from prescriptions written by Dr. Duncan. On August 14, 2002, Claimant filed a motion to reopen based upon a change in condition. The workers’ compensation court denied her motion, finding that it was barred by the statute of limitations. Claimant seeks this Court’s review.

STANDARD OF REVIEW

¶ 4 We normally use the any-competent-evidence standard to review the factual determinations of the workers’ compensation court. Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 2, 684 P.2d 548, 549. Because this case, however, turns on whether the workers’ compensation court correctly applied a statute, we are presented with a question of law which we review de novo. Mangrum v. Fensco, Inc., 1999 OK 78, ¶ 4, 989 P.2d 461, 462.

DISCUSSION

¶ 5 Claimant’s motion to reopen is subject to the limitations period set forth in 85 O.S.2001 § 43(C). According to section 43(C), the limitations period begins to run from the date of the “last order.” The issue to be resolved is clear: if the “miscellaneous order” entered by the workers’ compensation court on September 17, 1998, qualifies as the “last order,” Claimant’s motion to reopen is timely. If it is not, Claimant’s motion is time-barred.

¶ 6 In Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 18, 16 P.3d 1120, 1126, the Oklahoma Supreme Court held “an order qualifies as a ‘last order’ within the meaning of § 43(C) only if it substantially affects the range of monetary, medical, or rehabilitative benefits conferrable by the workers’ compensation law.” (Emphasis omitted.) The Court concluded that an order directing an employer to provide a vocational rehabilitation evaluation was a “last order.” Id. at ¶ 19, 16 P.3d at 1126.

¶ 7 In Gratzer v. Happy Foods, 2001 OK CIV APP 44, ¶ 12, 24 P.3d 373, 375, cert. denied, another division of this Court applied Arrow Tool to hold that an order directing an employer to pay a medical expense was a “last order” for the purposes of section 43(C). Claimant argues that Gratzer is directly on point and should control our decision here. In Gratzer, however, the original order of benefits did not require the employer to pay continuing medical expenses. The more recent order, therefore, substantially affected the range of benefits accorded the Claimant, by requiring reimbursement for a specific medical expense. See also Herman Bros. v. Huffman, 2001 OK CIV APP 61, 23 P.3d 315 (order allowing attorney to withdraw was not a “last order” for the purposes of section 43(C)).

¶8 Here, the September 17, 1998, order did not change Claimant’s benefits. It merely reinforced or clarified the earlier order, which directed Employer to pay “continuing medical care ... including prescriptions by [Dr. Duncan].” The order did not “substantially affect[ ] the range of ... benefits conferred].” Arrow Tool, 2000 OK 86, ¶ 18, 16 P.3d at 1126. Claimant’s benefits were no greater or less after the September 17, 1998, order than they were before.

¶ 9 The September 17, 1998, order does not qualify as a “last order.” Thus, the workers’ compensation trial court correctly determined that Claimant’s motion to reopen is time-barred.

¶ 10 SUSTAINED.

TAYLOR, P.J., and STUBBLEFIELD, J., concur.

      . Employer, Owens Illinois, Inc., has apparently changed its name since the inception of this litigation to Owens Brockway. We are bound, however, by the case style used by the workers’ compensation court in its final order.

      . Although the order does not specify that the prescriptions ordered reimbursed were written by Dr. Duncan, the parties agree that they were.

      . In Herman Bros. v. Huffman, 2001 OK CIV APP 61, 23 P.3d 315, Judge Reif, of this Court, discussed whether 85 O.S.2001 § 43(C) is a statute of limitations or a statute of repose. While we find Judge Reif’s discussion persuasive, we need not address that issue here.

      . Both parties assume the limitations period is 300 weeks, but do not acknowledge that 85 O.S. 2001 § 43(C) was amended in 2001 to shorten the period to 208 weeks. We need not determine here which version of section 43(C) applies, since Claimant's motion to reopen was filed only 203 ¡4 weeks after the September 17, 1998, order.


text:
    2003 OK CIV APP 53
    Kent MEDCALF, D.O., Plaintiff/Appellant, v. Ronald COLEMAN, M.D.; Bruce Switzer; Broken Arrow Medical Center; Medical Executive Committee, Broken Arrow Medical Center, Inc.; Board of Directors, Broken Arrow Medical Center; and Saint Francis Hospital, Defendants/Appellees, and Leon Yoder, D.O.; Mark Mathers, D.O.; Bryan Lucenta, M.D.; Thomas Costner, D.O.; Carolyn Pimsler, D.O.; John Jennings, M.D.; and Harley Galusha, D.O., Defendants.
    No. 98,906.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    May 13, 2003.
    Charles L. Richardson, Mark L. Collier, Stephanie Dinsmore Phipps, Richardson, Stoops, Richardson & Ward, Tulsa, OK, for PlaintiffAppellant.
    Michael Barkley, F. Will DeMier, Elizabeth A. Ballard, Barkley, Titus, Hillis & Reynolds, Tulsa, OK, for Defendants/Appel-lees.
   Opinion by

TOM COLBERT, Vice Chief Judge:

¶ 1 Appellant, Kent Medcalf, D.O., appeals an order of the trial court refusing to reconsider a summary adjudication in favor of Appellees, Ronald Coleman, M.D.; Bruce Switzer; the Broken Arrow Medical Center, Inc. (BAMC); the Medical Executive Committee of BAMC; the Board of Directors of BAMC; and Saint Francis Hospital. The dispositive issue on appeal is one of law: whether the trial court had jurisdiction to decide Medcalfs claims. We hold it did not and affirm the court’s order.

FACTS AND PROCEDURAL HISTORY

¶ 2 Medcalf, an ophthalmologist, began practicing at BAMC, a private, non-profit hospital, in April 1993. On April 22, 1994, Medcalf received a letter from BAMC informing him that his clinical privileges at the hospital were being summarily suspended. He later learned the suspension resulted from an incident on April 20, 1994, when, shortly before performing two cataract surgeries, Medcalf took a medication which caused an adverse reaction. He stated he believed the medication was Propanolol, a drug commonly taken by surgeons to control “normal physiologic microscopic movements.”

¶ 3 On April 24, 1994, the Medical Executive Committee reviewed the suspension and recommended that it be upheld. The Board of Directors ultimately revoked Medcalfs staff privileges. Medcalf received a hearing before a Fair Hearing Panel, which recommended that he be reinstated, but the Board of Directors upheld the revocation.

¶ 4 Medcalf filed suit against BAMC on April 1, 1996. On August 14, 1997, he filed a second amended petition, naming as defendants Ronald Coleman, M.D.; Thomas Costner, D.O.; Carolyn Pimsler, D.O.; Leon Yo-der, D.O.; John Jennings, M.D.; Bruce Switzer; Bryan Lucenta, M.D.; and Mark Mathers, D.O.; who were members of the Medical Executive Committee of BAMC; Harley Galusha, D.O.; BAMC; the Medical Executive Committee of BAMC; the Board of Directors of BAMC; and Saint Francis Hospital, of which BAMC is an affiliate. The petition alleged wrongful termination, malicious interference with contract, breach of duty of procedural fairness, intentional infliction of emotional distress, and breach of confidentiality. Medcalf sought both injunc-tive relief and money damages.

¶ 5 In December 1999, Medcalf dismissed Drs. Yoder, Mathers, and Lucenta from the suit. In January 2000, he dismissed Drs. Costner and Pimsler. On October 16, 2002, the remaining defendants filed a motion for partial summary adjudication, arguing that, pursuant to Ponca City Hospital, Inc., v. Murphree, 1976 OK 4, 545 P.2d 738, Oklahoma courts do not have jurisdiction to review staffing decisions made by private, nonprofit hospitals. The motion was partial because it did not include Medcalfs claim of breach of confidentiality against Drs. Galu-sha and Jennings. On November 12, 2002, Medcalf dismissed his claim for injunctive relief and argued that the court could assert jurisdiction because his claim was only for money damages.

¶ 6 On December 19, 2002, the trial court granted the motion for partial summary judgment. On January 16, 2003, Medcalf dismissed Drs. Galusha and Jennings from the suit, leaving as defendants Dr. Coleman, Switzer, BAMC, the Medical Executive Committee of BAMC, the Board of Directors of BAMC, and Saint Francis Hospital. Med-calf filed a motion to reconsider which the trial court denied on January 29, 2003. Med-calf now appeals to this Court.

STANDARDS OF REVIEW

¶ 7 Questions concerning a trial court’s jurisdictional power invoke the de novo standard of review. Jackson v. Jackson, 2002 OK 25, ¶ 2, 45 P.3d 418, 422. Under this standard, we have “plenary, independent and non-deferential” authority to examine a trial court’s legal rulings. Id.

¶ 8 Medcalfs motion to reconsider was the functional equivalent of a motion for new trial. The standard of review of a trial court’s decision on a motion for new trial is abuse of discretion. Strubhart v. Perry Mem’l Hosp. Trust Auth., 1995 OK 10, ¶ 16, 903 P.2d 263, 269. Our decision regarding the jurisdictional issue will determine whether the trial court abused its discretion in denying the motion to reconsider.

DISCUSSION

¶ 9 The issue of jurisdiction is fundamental and may be raised at any time. Graves Dairy Farm v. Evans, 2000 OK CIV APP 3, ¶ 11, 997 P.2d 173, 175 (citing Hawkins v. Hurst, 1970 OK 56, 467 P.2d 159, 160 (syl. no. 1 by the Court)). We agree with Appellees that this matter is controlled by Ponca City Hospital, Inc. v. Murphree, 1976 OK 4, 545 P.2d 738.

¶ 10 The issue in Murphree was “whether the action of a private hospital in revoking staff privileges of a physician is subject to judicial review.” Id. at ¶ 1, 545 P.2d at 738. The plaintiff had been a physician in the radiology department of the hospital for nearly twenty years when the hospital’s board of trustees revoked his staff privileges because of alleged disruptive activities and the difficulty which radiology personnel experienced in working with him. The plaintiff sued the hospital, seeking both a temporary and a permanent injunction. The trial court asserted jurisdiction and issued the injunctions. The hospital appealed to the Oklahoma Supreme Court.

¶ 11 The plaintiff argued that the hospital by-laws constituted a contract between him and the hospital and that the revocation of his privileges amounted to a breach of that contract. He also argued that the receipt of public funds and the use of a trust naming the City of Ponca City as beneficiary made any action taken by the hospital state action. The Court disagreed, explaining, “[Tjhere must be [a] causal connection between the state conduct or involvement and the injury complained of. State action and thus jurisdiction does not arise merely because private hospitals or other institutions receive governmental aid.” Id. at ¶ 16, 545 P.2d at 740. The Court held that “there is no judicial review of Hospital’s termination of plaintiffs staff privileges, absent either a showing of a causal relationship between the state’s activity and the activity causing the injury, or a claim of discrimination because of race, sex or age.” Id. at ¶22, 545 P.2d at 742. Because the hospital’s actions were not subject to judicial review, the Court did not reach the contract issue. Id. at ¶ 24, 545 P.2d at 742.

¶ 12 Another case we find helpful is Theissen v. Watonga Municipal Hospital Board, 1976 OK 66, 550 P.2d 938. Although Theis-sen involved judicial review of a public hospital’s staffing decision, the Supreme Court quoted the following language from a federal district court case which had determined that a private hospital’s staffing decisions are not subject to judicial review:

There are sound reasons that lead the courts not to interfere in these matters. Judicial tribunals are not equipped to review the action of hospital authorities in selecting or refusing to appoint members of medical staffs, declining to renew appointments previously made, or excluding physicians or surgeons from hospital facilities. The authorities of a hospital necessarily and naturally endeavor to their utmost to serve in the best possible manner the sick and the afflicted who knock at their door. Not all professional men, be they physicians, lawyers, or members of other professions, are of identical ability, competence, or experience, or of equal reliability, character, and standards of ethics. The mere fact that a person is admitted or licensed to practice his profession does not justify any inference beyond the conclusion that he has met the minimum requirements and possesses the minimum qualifications for that purpose. Necessarily hospitals endeavor to secure the most competent and experienced staff for their patients. Without regard to the absence of any legal liability, the hospital in admitting a physician or surgeon to its facilities extends a moral imprimatur to him in the eyes of the public. Moreover not all professional men have a personality that enables them to work in harmony with others, and to inspire confidence in their fellows and in patients. These factors are of importance and here, too, there is room for selection. In matters such as these the courts are not in a position to substitute their judgment for that of professional groups.

Id. at ¶ 26, 550 P.2d at 941 (quoting Shulman v. Washington Hosp. Ctr., 222 F.Supp. 59, 64 (D.D.C.1963)).

¶ 13 The Court also quoted the following language from a Fifth Circuit case:

No court should substitute its evaluation of such matters [as hospital staffing decisions] for that of the Hospital Board. It is the Board, not the court, which is charged with the responsibility of providing a competent staff of doctors. The Board has chosen to rely on the advice of its Medical Staff, and the court cannot surrogate for the Staff in executing this responsibility. Human lives are at stake, and the governing board must be given discretion in its selection so that it can have confidence in the competence and moral commitment of its staff.

Id. at ¶ 28, 550 P.2d at 942 (quoting Sosa v. Bd. of Managers of Val Verde Mem’l Hosp., 437 F.2d 173, 177 (5th Cir.1971)). We, therefore, conclude that the trial court did not have jurisdiction to review BAMC’s revocation of Medealf s privileges and did not abuse its discretion in refusing to reconsider the partial summary adjudication.

¶ 14 Medealf also argues that Mur-phree does not dispose of his individual claims against Dr. Coleman and Switzer. The only allegations Medealf made against Coleman and Switzer were that they were members of the Medical Executive Committee which upheld his suspension; that their action in suspending him amounted to intentional infliction of emotional distress; and that they maliciously interfered with his employment contract. Because Medcalfs claims against Coleman and Switzer arise from BAMC’s staffing decision, Murphree disposes of his claims against them. Moreover, even when viewed in a light most favorable to Medealf, see Shelley v. Kiwash Elec. Coop., 1996 OK 44, ¶ 15, 914 P.2d 669, 674, he did not plead specific facts to survive summary judgment on his claims for malicious interference with contract and intentional infliction of emotional distress.

¶ 15 AFFIRMED.

TAYLOR, P.J., and STUBBLEFIELD, J., concur.

      . The record contains a Certificate of Incorporation, filed with the Oklahoma Secretary of State on January 21, 1985, showing that Broken Arrow Medical Center, Inc., was established as a non-profit corporation.

      . Medcalf stated the patients did not suffer any injuries as a result of the surgical procedures, and Appellees never alleged the patients suffered injuries.

      .Although Appellees termed their motion one for “partial summary adjudication,” the correct phrase is "interlocutory summary adjudication.” See Reams v. Tulsa Cable Tel., Inc., 1979 OK 171, ¶ 5, 604 P.2d 373, 376. Medcalfs dismissal of Drs. Galusha and Jennings made the interlocutory summary adjudication entered by the trial court a final judgment.

      . Medealf has cited numerous authorities from other jurisdictions which purportedly allow judicial review of a hospital’s staffing decisions. Because Ponca City Hosp., Inc. v. Murphree, 1976 OK 4, 545 P.2d 738, is directly on point, we cannot consider those authorities. We note that the Court of Civil Appeals has applied Muiphree in two unpublished cases factually similar to this case with the same result. See Rosenfeld v. Thirteenth St. Corp., Appeal No. 68,505 (1988) and Trang v. Integris Baptist Med. Ctr., Inc., Appeal No. 91,791 (1999).


text:
    2003 OK CIV APP 55
    William E. NEWTON, Plaintiff/Appellant, v. Gayle NEWTON, Defendant/Appellee.
    No. 98,028.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    May 20, 2003.

      W. Neil Wilson, Wallace, Owens, Landers, Gee, Morrow, Wilson, Watson & James, Miami, OK, for Plaintiff/Appellant.
    Gayle Newton, Miami, OK, Pro Se.
   Opinion By

TOM COLBERT, Vice Chief Judge:

¶ 1 Plaintiff, William E. Newton, appeals the trial court’s order adjusting the equities between the parties in an action to partition real property. The issue on appeal is whether the trial court’s order is against the weight of the evidence or contrary to law or established principles of equity. Upon review of the record and applicable law, we conclude that it is not and affirm.

BACKGROUND

¶ 2 Plaintiff and Defendant, Gayle E. Newton, were divorced on May 4, 1990. The divorce decree awarding the marital home to Plaintiff reflected the terms of the parties’ agreement. The decree ordered Plaintiff to pay all of the mortgage, tax, and insurance payments. It also provided that Defendant could occupy the home with the couple’s only child, a daughter, until or unless Defendant remarried, cohabited with a person of the opposite sex, vacated the premises, or the daughter turned eighteen. Defendant was not liable for any rent during that period, but agreed to keep the property free from liens and judgments and to vacate the property within 30 days of any of the above-described events.

¶ 3 On January 9, 1991, Plaintiff conveyed a one-half interest in the property to Defendant. He subsequently filed a petition to cancel that deed, resulting in a judgment confirming the deed. On January 24, 1997, Plaintiff again filed a petition to cancel the 1991 deed. In the order denying Plaintiffs petition, the trial judge stated that the 1991 deed was the “controlling document as to the true ownership” of the property. At no point did Plaintiff seek to modify the divorce decree.

¶ 4 The parties’ daughter’s 18th birthday was on June 9, 2000. On January 24, 2001, Plaintiff filed this action, seeking a determination that partition of the property was inappropriate, and requesting an order that it be appraised and sold at public auction. The trial court ordered the property sold, granted Defendant permission to remain in the home until it was sold, and required her to pay one-half of the taxes and insurance from March 1, 2002. The court determined, however, that Defendant was to be assessed no further expenses on the property.

¶ 5 The property sold for $22,500 at a Sheriffs sale on June 26, 2002. Plaintiff ultimately received one-half of the sale price of $22,500, minus one-half of the cost of the sale, plus $2,800, reflecting one-half of the mortgage payments, insurance, and taxes he paid after July 9, 2000, thirty days after the parties’ daughter turned eighteen. Plaintiff appeals.

STANDARD OF REVIEW

¶ 6 The partition of real estate is an equitable matter. In considering an appeal from a trial court’s judgment in equity, we examine the record as a whole and weigh the evidence, but we will not disturb the judgment unless it is clearly against the weight of the evidence or contrary to law or established principles of equity. Wetzel v. Johnson, 1970 OK 69, ¶ 7, 468 P.2d 479, 481.

DISCUSSION

¶ 7 In an action for the partition of real estate, the trial court has “full power to make any order ... necessary to make a just and equitable partition between the parties, and to secure their respective interests.” 12 O.S.2001 § 1516. On appeal, Plaintiff claims the trial court’s decision results in Defendant’s unjust enrichment. During the period of joint ownership of the property, Plaintiff paid $36,081.66 on the mortgage, while Defendant paid $260, and Plaintiff paid $1,995.01 in ad valorem taxes, while Defendant paid $212.98. Plaintiff argues that, when he conveyed the half interest to Defendant in 1991, the parties had no equity in the property. Because he has made the mortgage payments since that time, Plaintiff argues, “reasonable adjustments” should be made in his favor.

¶ 8 Plaintiff asserts that the trial court erred as a matter of law in failing to make equitable adjustments and setoffs in his favor. We disagree with Plaintiffs analysis of the law of partition. Section 1516 does not require the trial court to adjust the equities in a certain way, and the court’s refusal to adopt Plaintiffs position does not amount to an error of law. The cases to which Plaintiff cites do not support his position. Williams v. Williams, 990 S.W.2d 665 (Mo.Ct.App.1999), Brooks v. Kunz, 637 S.W.2d 135 (Mo.Ct.App.1982), and Sack v. Tomlin, 110 Nev. 204, 871 P.2d 298 (1994), are all factually dissimilar to this situation. In Williams, for example, a former husband sought the partition of the marital home which was not disposed of in the divorce proceedings. In both Brooks and Sack, tenants in common who never married were entitled to a partition based on their relative contributions. In all three cases there had been no prior determination of the parties’ responsibilities as to the property.

¶ 9 In contrast to those cases, this case involves a valid and final divorce decree setting forth the parties’ responsibilities as they pertain to the property. Per his agreement, Plaintiff received full ownership of the home and was ordered to and did pay the mortgage, tax, and insurance payments. Defendant was entitled to and did live in the home rent-free until it was sold. For reasons unknown, shortly after the divorce decree and well before her right of occupancy expired, Plaintiff gave Defendant a one-half interest in the home.

¶ 10 Plaintiffs gift to Defendant did not serve to amend his duties set forth in the divorce decree. Moreover, despite his obvious familiarity with the court system, Plaintiff never sought any modification of his duties under the divorce decree. The trial court gave Plaintiff credit for the costs he incurred after Defendant’s rights under the divorce decree ceased, but its refusal to adjust, at this late date, the parties’ responsibilities and rights under the final divorce decree is not against the clear weight of the evidence; nor is it contrary to law or any established principle of equity.

¶ 11 AFFIRMED.

TAYLOR, P.J., and STUBBLEFIELD, J., concur.

      . The $2,800 was awarded to Plaintiff pursuant to Defendant’s agreement when Plaintiff requested a rehearing of the division of proceeds.

      . Plaintiff filed a motion to strike Defendant's appellate brief. The Supreme Court deferred consideration, "if any,” of Plaintiff's motion. Plaintiff's motion is denied.


author: THORNE, Jr., Judge:

text:
    2003 UT App 131
    Jay BUSCH, Petitioner and Appellant, v. Cindy A. BUSCH, Respondent and Appellee.
    No. 20010789-CA.
    Court of Appeals of Utah.
    May 8, 2003.
    Scott B. Mitchell, Salt Lake City, for Appellant.
    Steven C. Tycksen and W. Kevin Tanner, Zoll & Tycksen, Murray, for Appellee.
    Before Judges DAVIS, GREENWOOD, and THORNE, Jr.
   OPINION

THORNE, Jr., Judge:

¶ 1 Jay Busch (husband) moved the trial court to clarify an earlier divorce decree. The court denied the motion on the ground that the issues therein had already been ruled upon by the United States Bankruptcy Court and were, therefore, barred by the doctrine of res judicata. Husband appeals and we reverse and remand.

BACKGROUND

¶2 Cindy A. Busch (wife) and husband were divorced on January 18, 2000. Wife retained physical custody of the minor child and husband was ordered to pay child support until the child reached the age of majority as well as alimony for thirteen years and eleven months or until wife remarried. Husband was also directed to “assume and pay and hold [wife] harmless from the ... second mortgage on the parties’ home.”

¶3 On July 28, 2000, husband filed for chapter 13 bankruptcy protection. Wife remarried in September 2000 and husband’s alimony obligation ceased at that time. On March 22, 2001, husband filed a motion asking the trial court to clarify its earlier divorce decree and arguing that his obligation to “pay and hold [wife] harmless ... from the parties’ second mortgage was in the nature of alimony which terminated upon [wife’s] remarriage.” Husband further “requested] a determination that his obligation to pay the second mortgage was not in the nature of child support.”

¶ 4 Wife opposed husband’s motion for clarification and argued that the issue of whether the second mortgage obligation was in the nature of child support or alimony had been addressed by the bankruptcy court. Wife claimed that the bankruptcy court’s ruling was res judicata. In support of her position, wife tendered an unsigned copy of an order from the bankruptcy court stating that husband’s obligation to pay the second mortgage “had the affect of providing support for the minor child ... and [was] entitled to priority status in bankruptcy.” The commissioner denied husband’s motion and husband objected to the district court, where his motion was again denied. In its order, the trial court stated:

1. The Court finds that the Bankruptcy Court exercised its concurrent jurisdiction in the [husband’s] bankruptcy ease and found that the [husband’s] obligation to pay the second mortgage was a debt that was in the nature of support and was therefore non-dischargeable.
2. In view of that ruling[,] it is the opinion of this Court that the issue now sought to be brought before this court in [husband’s] Motion is, in fact, Res Judicata because of [the bankruptcy court’s] ruling on the same issue.
3. The Court therefore declines to rule further on this matter.
4. The [husband’s] Motion to Clarify the Decree is therefore denied.

Husband appeals.

ANALYSIS

¶ 5 Husband argues that the trial court erred when it determined that res judi-cata prevented the court from considering his motion, because the issues litigated in bankruptcy court were different from the issues raised in the motion to the trial court. “A trial court’s determination of whether res judicata bars an action ‘presents a question of law. We review such questions for correctness, according no particular deference to the trial court.’” Macris & Assocs. v. Neways, Inc., 1999 UT App 230, ¶ 5, 986 P.2d 748 (citation omitted), modified, Macris & Assocs. v. Neways, Inc., 2000 UT 93, 16 P.3d 1214, aff'd, Macris & Assocs. v. Neways, Inc., 2000 UT 93, 16 P.3d 1214.

¶ 6 “The doctrine of res judicata has two branches, claim preclusion and issue preclusion.” PGM, Inc. v. Westchester Inv. Partners, Ltd., 2000 UT App 20, ¶ 4, 995 P.2d 1252. Wife’s claim of res judicata is based upon issue preclusion, also known as “collateral estoppel.” Stevensen v. Goodson, 924 P.2d 339, 353 (Utah 1996).

Issue preclusion [or collateral estoppel] bars relitigation of the same issue litigated in prior litigation when: ‘First, ... the issue challenged in the case at hand [was] identical to the issue decided in the previous action. Second, the issue in the previous action [was] decided in a final judgment on the merits. Third, the issue in the previous action [was] competently, fully, and fairly litigated. Fourth, the opposing party in the action at hand [was] either a party or privy to the previous action.’

PGM, Inc., 2000 UT App 20 at ¶ 5, 995 P.2d 1252 (second, third, fourth, fifth, and sixth alteration in original) (quoting Stevensen, 924 P.2d at 353 (other citations omitted)). The party asserting res judicata has the burden to prove its elements. See Macris & Assocs. v. Images & Attitude, 941 P.2d 636, 640 (Utah Ct.App.1997).

¶ 7 In Stevensen, defendant argued that res judicata prevented plaintiff from changing the valuation of a piece of property because plaintiff had already attributed a value to that piece of property in a previous bankruptcy proceeding. See 924 P.2d at 352-53. On appeal, the Utah Supreme Court rejected this claim because “a complete record of the bankruptcy proceeding was not made a part of the record in the instant case,” thus “nothing in the record shows that the elements of collateral estoppel[, or issue preclusion,] have been met.” Id. at 353.

¶ 8 Likewise, in Parrish v. Layton City Corp., the defendant alleged that the plaintiffs claims were barred by res judicata because they had been addressed in an earlier action. See 542 P.2d 1086, 1087 (Utah 1975). The trial court granted the defendant’s motion for summary judgment on this ground. See id. On appeal, the Utah Supreme Court noted that

[a] survey of the record reveals that defendant never submitted a copy of the pleadings and judgment in [the earlier case], either in its pleadings or in company with its motion for summary judgment. The mere fact that there was a record of another action on file in the clerk’s office did not place these records in evidence.... Since the record of the prior action was not before the trial court, there is no basis to sustain the determination that plaintiffs claim was barred by the doctrine of res judicata.

Id. (footnotes omitted); cf. Matthews v. Matthews, 102 Utah 428, 132 P.2d 111, 113 (1942) (noting that the record from an earlier case was attached to the defendant’s answer to prove res judicata).

¶ 9 Here, wife opposed husband’s motion, arguing that the previously entered bankruptcy court order was res judicata. However, in support of her position, wife tendered only an unsigned bankruptcy order. Without the benefit of the bankruptcy record, and without evidence that the order tendered by wife was in fact a final order signed by the bankruptcy court, we cannot determine what issues were addressed by the bankruptcy court. See Parrish, 542 P.2d at 1087; Stevensen, 924 P.2d at 352-53. Consequently, we cannot determine whether the issues challenged in husband’s motion are “identical to the issue[s] decided” by the bankruptcy court; whether the bankruptcy proceeding resulted in “a final judgment on the merits”; whether the issues in the bankruptcy court were “competently, fully, and fairly litigated”; or whether wife was “a party or privy to the previous action.” PGM, Inc., 2000 UT App 20 at ¶ 5, 995 P.2d 1252 (quotations and citation omitted). Thus, we conclude that the unsigned bankruptcy order is insufficient to establish res judicata. See Stevensen, 924 P.2d at 353; cf. Parrish, 542 P.2d at 1087 (reversing because record of other action had not been included).

CONCLUSION

¶ 10 Accordingly, we reverse and remand, directing the trial court to consider husband’s motion to clarify.

¶ 11 WE CONCUR: JAMES Z. DAVIS and PAMELA T. GREENWOOD, Judges.

      . We note that wife may encounter difficulty in reasserting her res judicata defense on remand. In Stevensen v. Goodson, 924 P.2d 339, 353 (Utah 1996), the court questioned whether there had been a final judgment in a bankruptcy action when "no bankruptcy discharge was obtained.” Here, wife claims that no discharge was obtained because husband voluntarily dismissed his bankruptcy petition.


author: BILLINGS, Associate Presiding Judge. THORNE, Judge

text:
    2003 UT App 141
    In the Matter of Edwin L. SHEVILLE, a protected person. David Grindstaff and Sandra Sheville Holman, Appellants, v. Sue Ann Sheville, Appellee.
    No. 20010642-CA.
    Court of Appeals of Utah.
    May 15, 2003.

      Cameron S. Denning, Hanks Rooker & Denning PC, Salt Lake City, for Appellants.
    Kent B. Alderman and Angie Nelson, Parsons Behle & Latimer, Salt Lake City, for Appellee.
    Before Judges BILLINGS, ORME, and THORNE.
   MEMORANDUM DECISION

BILLINGS, Associate Presiding Judge.

¶ 1 Sandra S. Holman (Holman) appeals the trial court’s order finding her and David Grindstaff (Grindstaff) jointly and severally liable for $81,820.41 in costs and attorney fees in a dispute over the guardianship of Holman’s father, Edwin Sheville (Edwin). We reverse in part, reverse and remand in part, and affirm in part.

COSTS

¶ 2 Holman argues that rule 54 of the Utah Rules of Civil Procedure barred the trial court from awarding any costs to Sue A. Sheville (Sheville). Under rule 54, “[t]he party who claims his costs must within five days after the entry of judgment” file and serve a memorandum of costs. Utah R. Civ. P. 54(d)(2). Because Sheville failed to comply with this requirement, the trial court’s award of costs must rest on some other authority. See Lyon v. Burton, 2000 UT 19, ¶ 77, 5 P.3d 616 (“[Fjailure to satisfy the requirement for filing a verified memorandum of costs is fatal to a claim to recover costs under [rjule 54.”).

¶ 3 Sheville claims section 75-1-310 of the Utah Uniform Probate Code separately authorized the trial court’s costs award, regardless of rule 54’s requirements. See Utah Code Ann. § 75-1-310 (1993). However, the trial court did not base its costs award on section 75-1-310, and Sheville raises this argument for the first time on appeal. Although we “may affirm” a trial court’s ruling on grounds not raised below, State v. Montoya, 937 P.2d 145, 149 (Utah Ct.App.1997) (emphasis added), we do not find the record sufficient to properly consider - this issue. See id. at 149-50 (“The record must-contain sufficient and uncontroverted evidence supporting the ground or theory to place a person of ordinary intelligence on notice that the prevailing party may rely thereon on appeal.”); cf. Trimble Real Estate v. Monte Vista Ranch, Inc., 758 P.2d 451, 456 (Utah Ct.App.1988) (“Utah courts have consistently followed a policy strongly opposed to the raising of issues for the first time on appeal”). Therefore, we reverse the trial court’s award and supplemental award of costs and expenses.

ATTORNEY FEES

¶ 4 Holman argues the trial court failed to comply with Utah Code Ann. § 78-27-56 (2002) in awarding a wide range of attorney fees to Sheville. “Under section 78-27-56, attorney fees may be awarded ‘if the court determines that the action or defense to the action was [i] without merit and [ii] not brought or asserted in good faith.’ ” Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998) (alterations in original) (quoting Utah Code Ann. § 78-27-56).

¶ 5 As a threshold matter, we conclude it was legal error to find Holman and Grindstaff jointly and severally liable for all of Sheville’s attorney fees. Grindstaff was hired to represent Edwin’s interests, not the interests of Holman, as permitted under section 75-5-303. See Utah Code Ann. § 75-5-303 (1993) (stating that “unless the allegedly incapacitated person has counsel of the person’s own choice, [the trial court] shall appoint an attorney to represent the person”). The trial court did not find that Grindstaff undertook any efforts to represent Holman’s position, and, in fact, it is clear that Holman was represented by counsel other than Grindstaff throughout the proceedings. Nor did the trial court find that Grindstaff had colluded with Holman, a finding that might support the decision to award attorney fees jointly and severally. Thus, we analyze each claim separately.

¶ 6 Holman’s legal objections to Sheville’s guardianship based on Holman’s claims that she deserved guardianship over Edwin and that Edwin was competent were without merit and brought in bad faith. Holman contends, for instance, that she “had a reasonable belief that Edwin was capable of making his own decisions,” and argued below that Edwin desired to remain in Utah, close to Holman. Given the overwhelming evidence of Edwin’s incapacity, those claims are “frivolous” and therefore without merit. Jeschke v. Willis, 811 P.2d 202, 204 (Utah Ct.App.1991). Holman also asserted below that she was on equal footing, as an adult child of Edwin, to request legal guardianship of Edwin, and that she was capable of caring for Edwin. Even if Holman was originally on equal footing with Sheville, her well-documented improper behavior, especially in light of Edwin’s obvious incapacity before she filed any objections, shows she does not have Edwin’s best interest in mind, as required by law. See, e.g., Utah Code Ann. § 75-5-307(1) (1993) (allowing removal of a guardian “if in the best interests of the ward”); Utah Code Ann. § 75-5-304(1) (1993) (providing appointment of a guardian must be “necessary or desirable as a means of providing continuing care and supervision of the incapacitated person”). This behavior also supports the trial court’s finding of “bad faith.” Thus, we affirm the trial court’s award of those attorney fees incurred by Sheville to defend against Holman’s legal objections concerning Edwin’s capacity and Holman’s claims for guardianship over Edwin.

¶ 7 All other attorney fees granted by the trial court against Holman are beyond the scope of section 78-27-56 and improper. For instance, although Holman’s wrongful behavior may have prompted Sheville’s petitions for emergency guardianship, such behavior did not amount to legal “action” contemplated by section 78-27-56. Cf. Faust v. KAI Techs., Inc., 2000 UT 82, ¶ 16, 15 P.3d 1266 (noting section 78-27-56 does not extend to a party’s legal response to bad faith conduct alone). Similarly, Sheville’s attorney fees for annulling Edwin’s marriage and defending Edwin’s protective order did not involve Holman as an opposing party, and the trial court did not find Holman colluded with Grindstaff, who was Edwin’s attorney, on either matter.

¶ 8 In sum, the trial court erred by “awarding] wholesale all attorney fees requested” by Sheville without recognizing that much of the fee amount was not recoverable under section 78-27-56. Valcarce, 961 P.2d at 315. We remand for a determination and award of only those attorney fees expended by Sheville in litigating Holman’s objections to Sheville’s guardianship that were based on Holman’s claims that she deserved guardianship over Edwin and that Edwin was competent. Further, the trial court must make findings of fact regarding the reasonableness of those specific fees. See Foote v. Clark, 962 P.2d 52, 55 (Utah 1998).

¶ 9 I CONCUR: GREGORY K. ORME, Judge.

THORNE, Judge

(concurring in part and dissenting in part):

¶ 10 I dissent from the majority’s decision to read a good faith threshold into what is an otherwise legally permitted objection, based upon statute, to the appointment of a guardian.

¶ 11 Under Utah Code Annotated Section 78-27-56, attorney fees are awardable only if the action or defense was brought or raised in bad faith and the action or defense was without merit. See id. § 78-27-56 (2002); Hermes Assocs. v. Park’s Sportsman, 813 P.2d 1221, 1225 (Utah Ct.App.1991). In this case, I accept the trial court’s conclusion that Holman acted in bad faith, and I am in agreement with the majority on this issue. However, because Holman had a statutory right to contest Sheville’s guardianship petition, I cannot agree that her objection was without merit. Thus, I cannot agree with the majority view concerning the propriety of the trial court’s award of attorney fees for this issue.

¶ 12 A claim should be deemed to be without merit only if it “is ‘frivolous’ or ‘of little weight or importance having no basis in law or fact.’ ” Jeschke v. Willis, 811 P.2d 202, 203 (Utah Ct.App.1991) (emphasis added) (quoting Cady v. Johnson, 671 P.2d 149, 151 (Utah 1983)); see also Chipman v. Miller, 934 P.2d 1158, 1162 (Utah Ct.App.1997). The probate code seems to anticipate objections just like that filed by Holman. See Utah Code Ann. § 75-5-303 (1993) (setting out the procedure for appointing a guardian for an incapacitated person); id. § 75-5-304 (establishing that the court may appoint a guardian if “the appointment is necessary or desirable as a means of providing continuing care and supervision of the incapacitated person”); id. § 75-5-309 (establishing notice requirements, including requiring the petitioner to served notice on all adult children of the possibly incapacitated person); id. § 75-5-311 (establishing the order of priorities in guardianship proceedings, with adult children of the incapacitated person occupying the second position). Therefore, I do not believe that we can declare Holman’s objection to Sheville’s guardianship petition merit-less.

¶ 13 I further believe that my position is in accord with the traditional posture taken by this court in similar circumstances. See, e.g., Porco v. Porco, 752 P.2d 365, 368-69 (Utah Ct.App.1988) (stating “[w]e recognize that sanctions for frivolous appeals should only be applied in egregious cases, lest there be an improper chilling of the right to appeal erroneous lower court decisions”). I see no reason to limit the application of this logic to cases involving fees under rule 33 of the Utah Rules of Appellate Procedure. By declaring Holman’s objection to be meritless merely because it was likely self-serving, we open the door to a possible chilling effect on the filing of meretricious objections to guardianship petitions similar to the chilling effect mentioned in Porco. See id. Here, regardless of her motives, Holman objected to the appointment of Sheville as guardian, as permitted under the Probate Code. In doing so, she offered the court a number of alternatives to the appointment of Sheville, ranging from Holman herself to, presumably, the appointment of someone outside the family. I feel it is inappropriate to sanction Holman for following a path laid out by statute and approved by the legislature.

¶ 14 Therefore, although I concur with the bulk of the majority decision, I dissent from its conclusion that Holman’s objection to She-ville’s guardianship petition was without merit.

      . David Grindstaff is deceased and not a party to this appeal, as no brief was submitted on his behalf subsequent to his filing a notice of appeal.

      . The trial court entered its order appointing Sheville as permanent guardian on December 19, 2000, yet Sheville did not file a memorandum of costs until January 30, 2001.

      . The five day requirement is a "well-established, ” blanket rule preventing Sheville from recovering costs pursuant to rule 54. See Lyon v. Burton, 2000 UT 19, ¶ 77, 5 P.3d 616; cf. Classic Cabinets, Inc. v. All Am. Life Ins. Co., 1999 UT App 88, ¶¶ 17-18, 978 P.2d 465 (stating plain error standard and finding plain error where trial court ignored a "well-established rule" when incorrectly assessing attorney fees).

      .The trial court erroneously awarded costs pursuant to Utah Code Ann. § 78-27-56 (2002), which does not deal with the issue of costs. See Valcarce v. Fitzgerald, 961 P.2d 305, 318 (Utah 1998) ("[S]ection 78-27-56 ... refers only to attorney fees, with no mention of 'costs' recoverable under the statute.”). ,

      . We respectfully disagree with the dissent's conclusion that Holman’s mere statutory right to contest Sheville's guardianship, without any potential for success, prevents a "without merit” finding. "Frivolous” actions are "without merit.” Jeschke v. Willis, 811 P.2d 202, 204 (Utah Ct.App.1991). Black’s law defines a "frivolous action” as a "groundless [action] with little prospect of success; often brought to embarrass or annoy the [other party]." Black's Law Dictionary 461 (6th ed.1991) (emphasis added). Here, Holman's assertions regarding Edwin's competency and Hplman’s claims for guardianship had no prospect of success.
      The dissent also insists that bad faith can have no bearing on a "without merit” finding. We disagree. In this instance, Holman’s bad faith helps to demonstrate that she does not have Edwin’s best interest in mind, as required, hy law for those seeking guardianship. Thus, Holman’s bad faith, when combined with Edwin’s obvious incapacity, shows that Holman's claim for guardianship was without merit. Conversely, Holman's assertion that Edwin was competent was without merit irrespective of Holman’s bad faith.

      . The trial court had reason to conclude that Holman’s bad faith and Edwin’s obvious incapacity were apparent prior to October 25, 2000, when Holman first objected to Sheville's guardianship of Edwin. The record supports the trial court’s conclusion, for instance, that Holman improperly participated in and concealed Edwin’s trip from New York to Salt Lake City in early October 2000. Further, in December 1999, Edwin was diagnosed with senile dementia. After examining Edwin in late October and November 2000, another medical doctor testified that Edwin had moderate to severe dementia, and that Edwin could not even remember his recent marriage or how he recently arrived in Salt Lake City. A social worker and gerontologist also opined, after visiting with Edwin in late October 2000, that any lay person spending time with Edwin would identify his profound incapacity and memory disability.

      . The trial court merely found, for instance, that, "[wjhoever participated in [the protective order] was perpetuating a fraud on the court," and that Holman’s general conduct throughout the proceedings was in question.

      . The majority opinion suggests that a finding of bad faith can be the predicate element supporting a finding that a claim or defense was " 'frivolous' ” and “ ‘of little weight or importance.’ Jeschke v. Willis, 811 P.2d 202, 203 (Utah Ct.App.1991) (citations omitted). I find this conclusion inadequately supported by any authority.

      .Nothing in our case law suggests that the likelihood of success is the controlling factor in assessing merit for the purpose of determining sanctions. Rather, the only question we must face is whether success is possible. Here, Holman is an adult child of an incapacitated person who occupies the same priority position as She-ville, the petitioner. Thus, while her actions and behavior certainly suggest she was not likely to succeed in her attempt, her objection to the appointment of her sister as guardian was legally permissible and the trial court needed to rule upon it; thus, her objection was not frivolous.


author: THORNE, Judge:

text:
    2003 UT App 146
    STATE of Utah, Plaintiff and Appellee, v. Dana WAGENMAN, Defendant and Appellant.
    No. 20010686-CA.
    Court of Appeals of Utah.
    May 15, 2003.

      Shelden R. Carter, Harris & Carter, Provo, for Appellant.
    Mark L. Shurtleff, Attorney General, and Kris C. Leonard, Assistant Attorney General, for Appellee.
    Before BILLINGS, Associate Presiding Judge, and ORME and THORNE, JJ.
   OPINION

THORNE, Judge:

¶ 1 Dana Wagenman appeals the denial of her motion to dismiss criminal charges for failure to prosecute within 120 days of her written demand pursuant to Utah Code Ann. § 77-29-1 (1999). We reverse and remand.

BACKGROUND

¶ 2 On December 26, 2000, police arrested Wagenman for possession of a controlled substance and detained her for a parole violation. On January 18, 2001, Wagenman demanded a 120-day disposition of her case pursuant to Utah Code Ann. § 77-29-1 (1999). The request was received by the Division of Institutional Operations (DIO) on February 1. The DIO mailed a copy of the disposition request to the Utah County Attorney and delivered a copy to the Fourth Judicial District Court on that same day.

¶ 3 On March 1, the court provided Wag-enman with court appointed counsel and set an initial hearing for March 9. At the March 9 hearing, the court set the preliminary hearing for March 30. ’ However, Wagenman’s appointed counsel was not present at the March 30 preliminary hearing, and it was rescheduled to April 13 to allow Wagenman’s counsel to attend. A orie-day jury trial was ultimately set for June 4.

¶ 4 On May 31, the court, sua sponte, rescheduled Wagenman’s one-day jury trial to June 25, noting that Wagenman’s trial had been “[bjumped by a high priority ease.” The court made no factual findings in support of its decision to set the trial beyond the 120 days and the State did not ask the court to make a good cause determination on the record.

¶ 5 On June 19, Wagenman filed a motion to dismiss, arguing that the charges against her had not been tried within 120 days of her demand as required by section 77-29-1. The court denied the motion and then, at the State’s request, rescheduled the trial for July 25. On July 25, pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App.1988), Wagenman entered a guilty plea, reserving her right to appeal the court’s denial of her motion to dismiss.

ANALYSIS

¶ 6 Wagenman argues that the trial court erred when it denied her motion to dismiss pursuant to Utah Code Ann. § 77-29-1, Utah’s “detainer” or “speedy trial statute.” Pursuant to section 77-29-1, whenever a Utah prisoner has an untried indictment or information, that prisoner can demand that the charges be brought to trial within 120 days of the demand. See Utah Code Ann. § 77-29-1(1) (1999). “[W]e review a trial court’s determination that a defendant’s charges should be dismissed pursuant to the [s]peedy [t]rial [sjtatute for abuse of discretion.” State v. Coleman, 2001 UT App 281,- ¶ 3, 34 P.3d 790, cert. denied, 42 P.3d 951 (Utah 2002). “An appellate court will find abuse of discretion only where there is no ‘reasonable basis in the record to support’ the trial court’s [s]peedy [t]rial [sjtatute determination of ‘good cause.’” Id. (citation omitted). “Before reviewing the trial court’s determination for abuse of discretion, however, we review the trial court’s [underlying] legal conclusions for correctness, and its factual findings for clear error.” Id. at ¶4 (quotations and citation omitted).

¶ 7 Section 77-29-1 directs the court to dismiss criminal charges against a defendant if that defendant is not tried within 120 days of invoking section 77-29-1(4), unless “good cause [is] shown in open court.” Utah Code Ann § 77-29-1(3) to -(4). The detainer or speedy trial statute was enacted “to protect the constitutional right of prisoners to a speedy trial and to prevent those charged with enforcement of criminal statutes from holding over the head of a prisoner undis-posed charges against him.” State v. Trujillo, 656 P.2d 403, 404 (Utah 1982) (decided under a previous version of the detainer statute).

¶ 8 “ ‘ “Deciding whether the district court properly denied [a defendant’s] motion to dismiss pursuant to the detainer [or speedy trial] statute requires a two-step inquiry. First, we must determine when the 120-day period commenced and when it expired.” ’ ” Coleman, 2001 UT App 281 at ¶ 6, 34 P.3d 790 (first alteration in original) (quoting State v. Lindsay, 2000 UT App 379, ¶ 9, 18 P.3d 504 (citation omitted)). “ ‘ “Second, if the trial was held beyond the 120 day period, we must then determine whether ‘good cause’ excused the delay.” ’ ” Id. (quoting Lindsay, 2000 UT App 379 at ¶ 9, 18 P.3d 504 (citation omitted)).

¶ 9 Here, the parties agree that the second trial date of June 25 was more than 120 days after Wagenman’s request for disposition of her case. Wagenman argues that continuing the trial to this date is grounds for dismissal. In response, the State argues that there was “good cause” for moving the trial to June 25. See Utah Code Ann. § 77-29-1(4) (noting that “[i]f the court finds that the failure of the prosecuting attorney to have the matter heard within the time required is not supported by good cause, ... the court shall order the matter dismissed with prejudice”).

¶ 10 “A finding of ‘good cause’ that will excuse failure of the prosecution to bring a defendant to trial within the time required means (1) delay caused by the defendant—• such as asking for a continuance; or (2) ‘a relatively short delay caused by unforeseen problems arising immediately prior to trial’ ” Coleman, 2001 UT App 281 at ¶ 6, 34 P.3d 790 (quoting State v. Petersen, 810 P.2d 421, 426 (Utah 1991)); see also State v. Heaton, 958 P.2d 911, 916-17 (Utah 1998) (noting that good cause excuses compliance with statute).

¶ 11 In ruling on Wagenman’s motion to dismiss, the trial court found good cause for rescheduling the jury trial to June 25, because it needed to hear a case of higher priority. Section 77-29-1 provides that all determinations of good cause shall be “shown in open court, with the prisoner or his counsel being present.” Utah Code Ann. § 77-29-1(3). Neither the State nor Wagenman objected to the rescheduling, nor did either party request a hearing on the matter. The State argues on appeal that we should “presume” good cause in the absence of a record disproving it. We decline to make such a presumption, for it is the State’s responsibility to ensure that section 77-29-1 is followed.

¶ 12 In State v. Petersen, a defendant moved for dismissal because he had not been tried within 120 days of filing a notice of disposition. See 810 P.2d at 422. In part, the trial court denied the motion because the defendant had not objected to the scheduling of the trial beyond the 120 days. See id. On appeal, the Utah Supreme Court concluded that section 77-29-1 “clearly places the burden of complying with the statute on the prosecutor”; thus, the defendant “was not required to object to the trial date in order to maintain his rights under section 77-29-1.” Id. at 424.

¶ 13 Similarly, in State v. Heaton, as a result of an error in the clerk’s office, the state did not prosecute a case within 120 days. See 958 P.2d at 915. The defendant moved to dismiss, but the trial court found that a clerk’s office error excused the delay. See id. The supreme court concluded that the state was responsible for keeping the case moving forward and had the “duty to notify the court that a detainer notice has been filed and to make a good faith effort to comply with the statute.” Id.

¶ 14 Finally, in State v. Coleman, at the defendant’s request, the court rescheduled his preliminary hearing. See, 2001 UT App 281 at ¶¶ 12,13, 34 P.3d 790. The State “passively accepted [djefendant’s request,” id. at ¶ 13, 34 P.3d 790 but argued on appeal that the defendant’s rescheduling constituted a waiver of the 120-day time restriction. See id. at ¶ 13, 34 P.3d 790. This court disagreed and stated:

The State knew that [the defendant’s request to move the preliminary hearing] might precede or come in conjunction with Defendant’s Notice, which would initiate running of the 120-day period.... Nevertheless, the prosecution did not object, request a finding that the delayed preliminary hearing constituted a delay attributable to Defendant, or make any motion regarding Defendant’s request. Simply put, the prosecution, knowing that it had or could soon have an obligation to bring the matter to trial within 120 days, may not passively accept a defendant’s delay of the preliminary hearing, and then turn around and claim the delay kept the prosecution from meeting its burden.

Id. at ¶ 14, 34 P.3d 790.

¶ 15 Thus, we conclude that the State has an affirmative obligation to ensure that good cause is “shown in open court.” Utah Code Ann. § 77-29-1(3). Here, the State improperly deferred to the trial court’s desire to reschedule Wagenman’s trial without requesting a hearing. The State had an affirmative duty to request that the trial court make its determination of good cause in open court and to ask the court to create a record in support of its good cause determination. See Coleman, 2001 UT App 281 at ¶ 14, 34 P.3d 790. The State failed in its duty by not requesting such a hearing.

¶ 16 From the trial docket, we know that the trial court rescheduled Wagenman’s trial to accommodate a “high priority case.” Subsequently, in its written order denying Wag-enman’s motion to dismiss, the court noted that it “continued the trial on June 4, 2001 from said date to hear State v. Kris Montoya, case No. 001402774. See the docket of the Ms. Montoya case.” However, the court did not provide any further information regarding Montoya. Consequently, we cannot determine on appeal whether there was good cause to delay Wagenman’s trial. Because we lack an adequate record to review a good cause determination, we conclude that the State did not carry its burden pursuant to section 77-29-1. Accordingly, we reverse and remand with direction that the trial court dismiss the information against Wagen-man with prejudice. See State v. Wilson, 22 Utah 2d 361, 453 P.2d 158, 159-60 (1969) (noting that if trial is not brought within time prescribed, by statute the court loses jurisdiction and must dismiss with prejudice).

¶ 17 Reversed and remanded with directions.

¶ 18 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and GREGORY K. ORME, Judge.

      . Wagenman had legal representation at the March 9 preliminary hearing, but it was not the representation that she wanted. Her counsel had been unable to attend and sent another attorney to act in his stead.

      . Utah Code Ann. § 77-29-1 provides in relevant part:
      (3) After written demand is delivered as required in Subsection (1), the prosecuting attorney or the defendant or his counsel, for good cause shown in open court, with the prisoner or his counsel being present, may be granted any reasonable continuance.
      (4) In the event the charge is not brought to trial within 120 days, or within such continuance as has been granted, and defendant or his counsel moves to dismiss the action, the court shall review the proceeding. If the court finds that the failure of the prosecuting attorney to have the matter heard within the time required is not supported by good cause, whether a previous motion for continuance was made or not, the court shall order the matter dismissed with prejudice.

      Utah Code Ann § 77-29-1 (1999) (emphasis added.)

      . Wagenman also argues that the original trial date of June 4 fell beyond the 120 days and that this is also a basis for dismissal. However, since we reverse on other grounds we do not address this argument.

      . Specifically, the State argues that Wagenman has the "burden of providing adequate record support for her appellate claims.” The State notes that "Defendant did not seek any explanation from the trial judge for the priority determination and did not give the judge an opportunity to elaborate on its reasoning by objecting to the continuance.” Normally, appellants have the responsibility to ensure an adequate record on appeal, see State v. Snyder, 932 P.2d 120, 131 (Utah Ct.App.1997) (noting that " '[pjarties claiming error below and seeking appellate review have the duty and responsibility to support their allegations with an adequate record’ ”) (citation omitted), but this obligation does not remove the State’s obligations pursuant to section 77-29-1.

      . Any argument by the State that it did not cause the delay because the trial court rescheduled sua sponte is also unpersuasive. The Utah Supreme Court has held that
      the mere fact that the delay was not caused by the prosecutor has never been considered dis-positive because "to hold that good cause is supported by the lone fact that the delay was not caused by the prosecutor would contradict the language in section 77-1-29(4) which places the burden of complying with the statute on the prosecution.”

        State v. Heaton, 958 P.2d 911, 915 (Utah 1998) (citation omitted).