text:
    2003 OK 101
    STATE of Oklahoma, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Michael I. ASTON, Respondent.
    SCBD No. 4810. OBAD No. 1573.
    Supreme Court of Oklahoma.
    Dec. 2, 2003.

      Nathan A. Lockhart, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, for Complainant.
    Michael I. Aston, Tulsa, Pro se.
   SUMMERS, J.

T1 This proceeding was brought by the Bar Association to discipline Respondent, Michael Aston, for his drug-related conduct that resulted in a felony conviction and two misdemeanor convictions.

12 The Bar requests that Aston be suspended from the practice of law for a period of six months with a following probation for two years. The Trial Panel also recommended a six-month suspension with a two-year probation. Aston argues that suspension would cause an economic hardship, and that protection of the public is afforded by random drug testing during his probation.

T3 On October 2, 2002, in Cause No. CH-2002-282, District Court of Tulsa County, Aston pled guilty to the crime of Possession of Controlled Drug, Schedule II (methamphetamine). He received a deferred sentence of three years, and ten days in the Tulsa County Jail beginning October 3, 2002. He was also sentenced to eighty hours of community service. Aston also entered pleas to misdemeanor charges of possession of drug paraphernalia and possession of a Controlled Drug, Schedule IV, marijuana. He was ordered to pay fines and costs in the amount of $1,826.50. He pays $100.00 per month on the fines and costs, and an additional $60.00 per month in probation fees.

'I 4 Aston apologized to the members of the Trial Panel, expressed contrition for his actions, explained that he had been married for a year, had an infant son, and was trying to "grow up" and be an adult. Aston completed a course of substance abuse treatment.

15 He explained the history of his methamphetamine and marijuana use. He explained that he failed a urine screen one time during the year because of his use of marijuana. After this drug test Aston was required attend a class, and receive a warning that an additional test positive for drug use would result in incarceration. He stated that after this he increased his counseling. At the time of the hearing he was attending counseling sessions twice a week, and church meetings.

16 A lawyer testified on Aston's proficiency in practicing law, and gave an opinion that Aston is a good lawyer. However, he did not have specific information relating to Aston's rehabilitation, except that Aston had strong family support for rehabilitation. Aston's minister sent a letter to the Bar Association, and stated that Aston's behavior had improved in the last year.

T7 Aston called his probation officer to testify. He asked the probation officer to identify himself to the trial panel, and then turned the witness over to the panel for questioning. The probation officer testified that Aston never misses an appointment, and is timely paying his fees. He said that Aston had no problem during the probation, except one positive drug test. The program authorizes a sanction of incarceration should Aston receive a second positive test for prohibited drugs. A third positive test would result in an appearance before the sentencing judge for a determination whether Aston’s probation should be revoked. He testified that one relapse is “very, very common” for individuals on probation for drug offenses. He also testified that Aston would receive additional treatment because of the relapse, a “relapse intervention program.”

¶ 8 The probation officer testified that a condition of Aston’s probation is that he be employed full time. He stated that Aston will need to find other employment if he is not working as a lawyer. The officer was asked to speculate on Aston’s success in the program. He stated that “I don’t look into the future,” but “he [Aston] knows now that he’s at the crossroads of where he’s going to go to jail if something happens again,” and “he’s sincere about not wanting to mess up,” and “I think he’s probably going to be okay.” The officer also said that Aston had “never given me any grief about coming to his house and looking around or popping in on him unexpectedly ... I think he’s trying to do what he can right now.”

¶ 9 Counsel for the Bar Association strongly recommended that Aston be required to participate in Lawyers Helping Lawyers and a probationary period that coincided with this probation in the criminal proceeding. However, counsel for the Bar expressed concern on how a suspension could have a nega-five impact upon Aston’s rehabilitation. Aston stated that he did not know how he would support his family and satisfy the employment requirement of his probation if his license to practice law was suspended. He stated that he would do what was necessary to support his family and satisfy his probation requirements and any requirements imposed by this Court.

[1-3] ¶ 10 The trial panel determined that Aston’s conduct constituted a violation of Rule 8.4(b) of the Rules of Professional Conduct, and a violation of Rule 1.3 of the Rules Governing Disciplinary Proceedings. We exercise exclusive original jurisdiction in lawyer discipline proceedings, and use a de novo review of the record before us. We treat the findings and recommendations of the trial panel as merely advisory when we decide whether professional misconduct has occurred and the appropriate discipline to impose., State ex rel. Oklahoma Bar Association v. Taylor, 2003 OK 56, ¶ 2, 71 P.3d 18, 21; State ex rel. Oklahoma Bar Association v. Giger, 2001 OK 96, ¶ 5, 37 P.3d 856, 860. We review the evidence to determine if the allegations of misconduct are established by clear and convincing evidence. State ex rel. Oklahoma Bar Association v. Bolusky, 2001 OK 26, ¶ 7, 23 P.3d 268, 272.

[4] ¶ 11 Rule 8.4(b) states that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on that person’s fitness as a lawyer. We have said that the phrase “fitness to practice law” encompasses more than an absence of detriment to specific clients. In State ex rel. Oklahoma Bar Association v. Willis, 1993

OK 138, 863 P.2d 1211, we explained that conviction for possession of cocaine demonstrated an unfitness to practice law.

In State ex rel. Oklahoma Bar Association v. Arnett, 815 P.2d 170 (Okla.1991), the respondent entered a plea of guilty to the charge of possession of a controlled and dangerous substance (cocaine) which did mot involve conduct in an attorney-client relationship or in the performance or nonperformance of any obligation while acting on behalf of any client. The parties had stipulated that several witnesses would testify that the respondent was fit to practice law. We stated that Arnett's conduct violated the provisions of Rule 8.4(b) of the Rules of Professional Conduct in that he committed a criminal act that reflected adversely on his fitness to practice law. We imposed a ninety day suspension and a two-year probationary period in that case, which did not involve elements of fraud or misrepresentation.

State ex rel. Oklahoma Bar Association v. Willis, 868 P.2d at 1214, (emphasis added).

12 Rule 1.3 states that a lawyer may be disciplined when he or she commits and act that is contrary to the prescribed standards of conduct and would reasonably be found to bring discredit upon the legal profession. In 1999 we said that three convictions (two misdemeanors and a felony) for driving while under the influence of alcohol showed a pattern of repeated offenses indicating indifference to legal obligations. State ex rel. Oklohoma Bar Association v. Doris, 1999 OK 94, 991 P.2d 1015, 1026. Also in that year, in State ex rel. Oklahoma Bar Association v. Blackburn, 1999 OK 17, 976 P.2d 551, we said the following:

Felony drug offenses are of great concern to this Court, both because of their criminal nature and because addiction prevents an attorney from adequately caring for the legal affairs of his clients, putting the public in danger. See State ex rel. Oklahoma Bar Ass'n v. Denton, 1979 OK 116, 598 P.2d 663, 665 (deferred sentence for possession of marijuana is a crime and warrants discipline); State ex rel. Oklahoma Bar Ass'n v. Bradley, 1987 OK 78, 746 P.2d 11830, 11838 (evidence of a nolo contendere plea and receipt of a deferred sentence was admissible and relevant in disciplinary proceeding relating to attorney's use of client funds); State ex rel. Oklahoma Bar Ass'n v. Hogue, 1995 OK 64, 898 P.2d 158 (attorney's guilty pleas for drug and alcohol related offenses were cause for six month suspension).

Id. 1999 OK 17, at 1 12, 976 P.2d at 554.

We have said that substance abuse is incompatible with the practice of law. State ex rel. Oklahoma Bar Association v. Giger, 2001 OK 96, 121, 37 P.3d 856, 864. See eg., Matter of Reinstatement of Pierce, 1996 OK 65, 919 P.2d 422, 426, (we discussed the problem and denied a petition for reinstatement based, in part, on a lawyer's lack of evidence showing rehabilitation). Our opinions in Willis, Arnett, Doris, Blackburn, and others, predate Aston's conduct examined in this proceeding. Aston, as have all the members of the Bar, received notice that conduct resulting in convictions for felony drug offenses is not acceptable for a member of the Bar. The evidence is clear and convincing that Aston's convictions for possession of methamphetamine, marijuana, and drug paraphernalia show violations of both Rule 1.3 and 8.4(b).

118 Prior discipline for professional misconduct is used to enhance discipline. State ex rel. Oklahoma Bar Association v. Mothershed, 2008 OK 34, 142, 66 P.3d 420, 428. When enhancing discipline the Court has considered a previous private reprimand from the Professional Responsibility Commission when the facts supporting that reprimand are made part of the record. State ex rel. Oklahoma Bar Association v. Vincent, 2002 OK 40, 120, 48 P.3d 797, 801; State ex rel. Oklahoma Bar Association v. Gasaway, 1993 OK 138, 863 P.2d 1189, 1205.

1 14 Aston received a private reprimand by the Professional Responsibility Commission in January 2001 for his pleas of no contest to misdemeanor charges of possession of marijuana and being drunk in public 'These charges followed an arrest by the Oklahoma City Police Department. The trial panel report also details that in a separate cireum-stance in August 2002, Aston received a suspended sentence of one year after pleading no contest to possession .of marijuana and actual physical control of a motor vehicle while intoxicated.

15 Mitigating factors when imposing discipline include a respondent's cooperation with the Bar's investigation and prosecution of the matter, whether a respondent accepts responsibility for the misconduct, and whether clients did not suffer adversely. State ex rel. Oklahoma Bar Association v. Parsons, 2002 OK 72, 1 17, 57 P.3d 865, 869; State ex rel. Oklahoma Bar Association v. McGee, 2002 OK 32, 1122-26, 48 P.8d 787, 798. Counsel for the Bar said that Aston had cooperated in every part of the disciplinary process. ko.

It's important to note along with that punishment, that Mr. Aston has been very cooperative throughout, from the time we learned of his latest arrest until today, he's been cooperative. And we've gotten through this fairly quickly. There was really no arguing about the stipulations. He's met with Dan and I here at the Bar, and we've gone over a number of things, talked about the problems that he's had.

Counsel for the Bar also noted that Aston had not, except for the previous private reprimand, had any problems with the Bar Association. ~

It's important to know, too, that Mr. Aston hasn't had any other problems with the bar. As far as his legal work and legal competency and things of that nature.

Counsel for the Bar also explained that in cases involving drug use by lawyers the Bar normally discovered neglect of clients and their cases by those lawyers. However, the Bar did not discover any of those problems in this case. Further, Aston's apologies to the trial panel coupled with his past representations to his probation officer show that he assumed responsibility for his actions. In mitigation, Aston fully cooperated with the Bar, assumed responsibility for his acts, and no clients were damaged by his conduct.

1 16 In State ex rel. Oklahoma Bar Association v. Giger, 2001 OK 96, 37 P.3d 856, the respondent was disciplined with a suspension from the practice of law for one year and a two-year period of supervision. Giger violated rules of professional conduct in addition to those violated by Aston. However, Giger had not received a prior reprimand as had Aston.

17 Aston's deferred sentence requires supervision until October 3, 2005, at which time he is to appear before the District Court. We agree with the trial panel that Aston's conduct shows that supervision is needed. We place Aston on two years of conditioned supervision under the auspices of a member of the Lawyers Helping Lawyers Committee. During this time, Aston shall be required to: (1) abide by the Rules of Professional Conduct, (2) cooperate with and participate in the Lawyers Helping Lawyers Committee, (8) refrain from the use or possession of any illegal drug, and (4) remain unimpaired from the use of any legal substance, whether pre-seribed or not, that interferes with his ability to function as a lawyer. See Giger, at 1 23. We further order that a term of his conditioned supervision is that he refrain from engaging in conduct that would cause revocation of his deferred sentence.

T18 As in Giger, supro, if at any time during the two-year period of conditioned supervision the General Counsel of the Oklahoma Bar Association concludes that Aston has violated any of the terms of his supervision, the Bar may file an application with the original trial panel to impose discipline for that violation. Notice of the filing of the application shall be sent to Aston by certified mail. The trial panel shall then schedule a hearing on the application and make a determination as to whether Aston has violated the terms of his supervision. If the trial panel determines that no violation has occurred, the period of conditioned supervision shall continue. If the trial panel finds a violation did occur, then a record of the proceedings sufficient for our de novo review together with a recommendation for an appropriate discipline shall be forwarded to this court. See Giger, at " 24.

{19 Aston states that he now knows that his past conduct must be changed, and that a suspension is not necessary. Aston received a private reprimand from the Professional Responsibility Commission and this expression of professional disapproval was apparently insufficient to cause a change in his conduct. Considering the mitigating factors and comparing this misconduct with similar disciplinary proceedings, we conclude that the appropriate period of suspension is six months.

120 The Bar Association filed an application for assessment of costs against Aston in the amount of $500.63. The application is granted, and Aston shall pay the costs within ninety (90) days of the date this opinion is final.

121 Respondent is suspended from the practice of law for six months and placed under conditioned supervision for two years. The suspension and supervision will commence on the day this opinion becomes final. Respondent is directed to pay the costs as ordered herein within ninety days of the date this opinion becomes final.

122 OPALA, V.C.J., LAVENDER, KAUGER, BOUDREAU, WINCHESTER, JJ., concur.

1 23 WATT, C.J., Dissents.

"I would suspend Respondent for a longer period of time."

124 HODGES, HARGRAVE, JJ., Dissent.

      . The Bar’s Lawyers Helping Lawyers Committee is a program designed to (a) assist, through direct contact, lawyers impaired by substance abuse, depression, stress and other practice— related malaise and (b) assure the public of competent legal representation. State ex rel. Oklahoma Bar Association v. Giger, 2001 OK 96, n. 12, 37 P.3d 856, 860.

      . 5 O.S.2001, Ch. 1, App. 3 A, Rule 8.4(b)
      Rule 8.4. Misconduct
      It is professional misconduct for a lawyer to:
      (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;....

      .5 O.S.2001, Ch.l, App. 1 A, Rules Governing Disciplinary Proceedings, Rulel.3 slates:
      “The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemean- or, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.”

      . 5 0.$.2001, Ch.1, App. 1 A, Rules Governing Disciplinary Proceedings, Rule 6.2 states:
      ''The complaint shall set forth the specific facts constituting the alleged misconduct, and if prior conduct resulting in discipline, or evidence from prior investigations, is relied upon to enhance discipline, the prior acts or conduct relied upon shall be set forth."


source: Caselaw Access Project

author: LUMPKIN, Judge. CHAPEL, J.,

license: Public Domain

text:
    2003 OK CR 28
    Kenneth Ray KINCHION, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-2002-601.
    Court of Criminal Appeals of Oklahoma.
    Dec. 12, 2003.

      Robert Ravitz, Public Defender, Jeffrey Contreras, Assistant Public Defender, Oklahoma City, OK, counsel for appellant at trial.
    Wesley C. Lane, III, District Attorney, James Siderias, Steve Deutsch, Assistant District Attorneys, Oklahoma City, OK, counsel for the State at trial.
    Carolyn L. Merritt, Assistant Public Defender, Oklahoma City, OK, counsel for appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, William R. Holmes, Assistant Attorney General, Oklahoma City, OK, counsel for the State on appeal.
   SUMMARY OPINION

LUMPKIN, Judge.

T1 Appellant Kenneth Ray Kinchion was tried by jury and found guilty of Conspiracy to Commit a Felony, Robbery with a Dangerous Weapon (Counts 1 and 8) (21 0.S8.1991, §§ 421 & 801); First Degree Murder (Count 2) (21 0.8.1991, § 701.7); Robbery with a Dangerous Weapon (Count 4) (21 0.8.Supp. 1997, § 801); and Felonious Possession of a Firearm (Counts 5 and 7), Case No. CF-2000-6468, in the District Court of Oklahoma County. The jury recommended as punishment twenty five (25) years imprisonment in each of Counts 1 and 3, life imprisonment in Count 2, fifty (50) years imprisonment in Count 4, and ten (10) years imprisonment in each of Counts 5 and 7. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

T2 On November 8, 2000, Appellant also known as Peanut, DeWayne Shirley also known as Pudgy, and Teron Armstrong, also known as T-Noc, members of the Oak Grove Posse, robbed two convenience stores in Oklahoma City. The first armed robbery was committed at Coker's Corner, on South Kentucky Street, at approximately 10:00 a.m. The second armed robbery was attempted shortly after 8:00 p.m. at Tran's Food Mart on South May. Appellant carried the gun in the first robbery. However, in the second robbery, Armstrong carried the gun. After Armstrong threatened the owner of the store, Han Vo, with the gun, Han Vo shot and killed Armstrong with a .38 caliber revolver he kept under the counter.

T3 Appellant raises the following propositions of error in support of his appeal:

I. The statutory offense of Felony Murder does not arise from the shooting death of a co-felon by a robbery victim during a convenience store robbery.
II. The evidence was insufficient to prove the conspiracy allegations beyond a reasonable doubt.
III. Two counts of conspiracy violate the constitutional prohibition against double jeopardy.
IV. There was no evidence that Appellant possessed a firearm at the robbery at Tran's Food Mart.
V. The trial court erred in refusing defense counsel's request for a jury instruction on the exculpatory statement doctrine.
VI. Appellant's sentences on the conspiracy and robbery convictions were improperly enhanced under the Habitual Criminal Statute.
VII. When considered eumulatively, the multiple errors addressed herein denied Appellant due process and fundamental fairness.

14 At the request of the Court, oral argument was held September 17, 2003. 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 5, Felonious Possession of a Firearm.

15 In Proposition I, the issue of the criminal responsibility of a defendant for the death of a co-felon was first addressed by this Court in State v. Jones, 859 P.2d 514, 515 (Okl.Cr.1993). This Court found that under 21 O.S.1991, § 701.7(B) a defendant could not be charged with and convicted of felony-murder for the death of a co-felon who was shot by the intended victim of a burglary. Title 21 0.8.1991, § 701.7(B) read as follows:

A person also commits the crime of murder in the first degree when he takes the life of a human being, regardless of malice, in the commission of forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, first degree burglary, first degree arson, unlawful distributing or dispensing of controlled dangerous substances, or trafficking in illegal drugs.

T6 This Court held that the express language of the felony-murder statute precluded prosecutions where the victim was killed by someone other than the defendant or an accomplice. In 1996, section 701.7(B) was amended and the language broadened to include deaths, which occur at the hands of the intended victim of the underlying felony, police officers, or innocent bystanders. The 1996 amendment provided:

B. A person also commits the crime of murder in the first degree, regardless of malice, when that person or any other person takes the life of a human being during, or if the death of a human being results from, the commission or attempted commission of murder of another person, shooting or discharge of a firearm or crossbow with intent to kill, intentional discharge of a firearm or other deadly weapon into any dwelling or building as provided in Section 1289.17 of this title, forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, first degree burglary, first degree arson, unlawful distributing or dispensing of controlled dangerous substances, or trafficking in illegal drugs. -

T7 The amended language is consistent with our long-standing interpretation of the felony-murder doctrine. In Hatch v. State, 662 P.2d 1377 (Okl.Cr.1983), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986) this Court stated:

The legislature's definition of murder in 701.7(B) is a reflection of the policy that one who, by his willful criminal conduct, sets in motion a chain of events so perilous to the sanctity of human life that death results therefrom; must bear the ultimate responsibility for his actions. We agree with the legislature that murders effected in such a manner are as abhorrent as those, which are premeditated. Proserib-ing such actions under our first-degree murder statutes performs the rational function of deterring the commission of felonies so inherently dangerous as to create foreseeable risks of death.

662 P.2d at 1884.

8 Although the Court was addressing the language of the pre-1996 statute in Hatch, the policy expressed remains valid in the 1996 amendment. Indeed, the felony-murder statute, and particularly the 1996 amendment, were designed to apply to just such a situation as we have in the present case. Here, the evidence showed Appellant planned and actively participated in two armed robberies. During the first armed robbery, Appellant carried the weapon. During the second robbery, Appellant acted as the lookout and Armstrong carried the weapon. It can be reasonably inferred from the evidence that Appellant knew Armstrong was going to carry the loaded gun in the second robbery. Further, it is reasonably foreseeable that threatened with a weapon, the store clerk might shoot at his assailant. While Appellant did not personally carry the loaded gun into the store during the second robbery, his criminal conduct of planning and carrying out the armed robbery, set in motion "a chain of events so perilous to the sanctity of human life" that the likelihood of death resulting was foreseeable. Therefore, Appellant should bear the ultimate responsibility for his actions, which in this case means prosecution for first degree murder.

T 9 In his appellate brief and in oral argument before this Court Appellant argued that under the law of imputed intent, the unintended death of his co-felon cannot be imputed to him. The doctrine of imputed intent is a common law principle. The common law has been abrogated by state statute in Oklahoma. See 22 00.98.2001, § 9. Further, the very language of 21 O0.8.8upp.1996, § 701.7(B) evidences an intent by the Legislature to hold a defendant criminally responsible for the death of a co-felon when that death occurs during a felony so inherently dangerous as to create a foreseeable risk of death. Accordingly, we find the statutory offense of felony-murder applies to the present case and Appellant was properly charged and convicted of first degree felony-murder.

110 In Proposition II, we find the existence of two conspiracies to commit a robbery was clearly supported by evidence that two separate agreements had been reached between Appellant and his co-conspirators to rob the convenience stores. See Powell v. State, 995 P.2d 510, 528 (Okl.Cr.), cert. demied, 531 U.S. 935, 121 S.Ct. 321, 148 L.Ed.2d 258 (2000).

¶ 11 In Proposition III, we review ouly for plain error as no objection on the grounds of double jeopardy was raised at trial. See Simpson v. State, 876 P.2d 690, 693 (Okl.Cr.1994). After reviewing the case law, we find that cases addressing the specif-ie issue before us of a double jeopardy challenge to multiple conspiracy convictions provides the most assistance in our resolution of the issue. The sole case from this Court on the issue is Jones v. State, 965 P.2d 385, 386 (Okl.Cr.1998). Applying the law as set forth in Jones, we find the facts of this case distinguish it from the holding in Jones. The evidence in this case, unlike that in Jones, does not suggest one continuous transaction or one agreement to commit several crimes. Evidence that several hours separated the two robberies, the two robberies occurred at different locations and involved different vie-tims, and that the participants in the robberies played different roles from one robbery to the next indicates two separate plans were made for two separate robberies. Accordingly, Appellant's two convictions for conspiracy are not prohibited by the rules of double jeopardy. See Davis v. State, 998 P.2d 124, 126 (Okl.Cr.1999). Further, as there were two separate criminal acts, the two convictions do not violate 21 O.S.Supp.1999, § 11.

$12 In Proposition IV, we find the evidence was insufficient to support the conviction in Count V, felonious possession of a weapon at the attempted robbery of Tran's Food Mart. It is undisputed that the single gun carried by the robbers at the second robbery was in the hands of the murder victim, and not in Appellant's hands. The legal theories of constructive possession and vicarious lability do not apply in this situation. In cases addressing constructive possession of guns and illegal drugs, the guns and drugs were found in locations where they were not in any one person's actual possession, ie, car glove boxes, closets, etc. Therefore, whether or not they belonged to the person found nearest to them was an issue to be determined. In the present case, a gun was unquestionably in Armstrong's hands, not Appellant's hands. Further, unlike illegal drugs, which can be divided and parceled out and therefore possessed jointly, this Court has never found that a gun can be possessed jointly.

113 Additionally, under the language of 21 O.8.Supp.1999, § 12883, Appellant did not have the firearm in his "immediate control." The State's reliance upon an aiding and abetting theory that because Appellant had been found guilty of participating in the robbery, he was also guilty of being a felon in possession is insufficient to satisfy the elements of the statute. Accordingly, the evidence is insufficient to support a conviction for felonious possession of a firearm in Count 5. That conviction should be reversed with instructions to dismiss.

$14 In Proposition V, we find the trial court did not abuse its discretion in refusing to give a jury instruction on exeulpatory statements as Appellant's statement to the police was disproved by other evidence in the case. See Rogers v. State, 890 P.2d 959 (Okl.Cr.), cert. denied, 516 U.S. 919, 116 S.Ct. 312, 183 L.Ed.2d 215 (1995). Further, Appellant was not prejudiced by the absence of the instruction as the jury was fully instructed on the State's burden of proof, the presumption of innocence, and the voluntariness of the defendant's statement.

115 Filed by Appellant subsequent to his brief-in-chief is a Motion to Supplement. In this motion, Appellant seeks to supplement the record with a statement from Lieutenant Dexter Nelson. Lt. Nelson was one of the investigating officers in Appellant's case. The motion states that while attending two different police training programs on June 11 and 13, 2003, co-defendant DeWayne Shirley told attendees that Appellant had gone into Tran's Food Mart to use the restroom and had not participated in the attempted robbery. Lt. Nelson contacted the Assistant District Attorney who prosecuted Appellant's case who in turn contacted appellate counsel with this potentially exculpatory evidence.

" 16 Appellant now asserts Shirley's statements are not being offered in support of a motion for new trial but to counter the State's appellate argument that the trial court's refusal to the give the exculpatory statement instruction was harmless. Appellant contends that supplementation of the record is necessary to prevent a miscarriage of justice and to preserve the integrity of the judicial process.

§17 The statement of Lit. Nelson is an unnotarized statement containing hearsay. The motion to supplement and its accompanying statement do not fall under the provisions for supplementation of the record as set out in Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003). The hearsay statements are not necessary to resolve Appellant's challenge to the trial court's refusal to give the jury instruction on exculpatory statements. The information contained in the statement repeats information already presented to this Court in Appellant's brief-in-chief. Accordingly, supplementation of the record is not necessary to this Court's consideration of the issues on appeal. Therefore, the motion to supplement is denied.

T18 In Proposition VI, we find no plain error occurred in the use of the single prior conviction as an element of the offense in Count 5, felon in possession, and to enhance the sentences in Counts 1 and 3, robbery and conspiracy. Use of the single prior conviction in this manner is not prohibited by the Habitual Offender Statute, 21 00.98.1991, § 51.1(B). Further, it is distinguishable from the prohibition to using a prior conviction as an element of an offense and as enhancement of punishment of that same offense. See Ruth v. State, 966 P.2d 799 (OkL.Cr.1998), Chapple v. State, 866 P.2d 1213 (Okl.Cr.1993).

19 In Proposition VII, we find Appellant was not denied a fair trial by cumulative error. The only error to warrant relief was found in Proposition IV of Appellant's brief, and we have consequently ordered the conviction in Count 5, felon in possession, to be reversed and dismissed for insufficient evi-denee. None of the other allegations of error raised warrant any relief,. Therefore, as this Court has failed to sustain any of the other errors raised, this cumulative error argument is denied. See Ashinsky v. State, 780 P.2d 201, 209 (Okl.Cr.1989). See also Conover v. State, 933 P.2d 904, 923 (Okl.Cr. 1997).

DECISION

The Judgment and Sentence in Count 5, Felonious Possession of a Firearm is RE-VYERSED WITH INSTRUCTIONS TO DISMISS. The Judgments and Sentences on all remaining counts are AFFIRMED. Appellant's Motion to Supplement is DENIED.

JOHNSON, P.J., concurs in res1_11_t.

LILE, V.P.J., concurs.

CHAPEL, J., and STRUBHAR, J., dissent.

CHAPEL, J.,

dissenting:

T1 I disagree with the majority's resolution of Proposition I. I believe our felony murder statute does not apply where a co-defendant is shot and killed by a victim during the course of the crime. Felony murder holds a defendant accountable for murders which are foreseeable as a result of his actions or those of an accomplice. The Legislature enacted the felony murder statute in order "to deter, with the death penalty, those crimes of a particularly heinous and brutal nature as well as those felonies necessarily involving great risk of death or serious bodily injury to the victim." Felony murder is intended to punish those defendants who, with lethal force, commit a felony inherently dangerous to human life. The doctrine's primary function is to remove the State's burden of proving malice by imputing the intent involved in the commission of the felony to the commission of the homicide; however, "there must be a nexus between the underlying felony and the death of the victim."

T2 As the majority notes, "one who, by his willful criminal conduct, sets in motion a chain of events so perilous to the sanctity of human life that death results therefrom; must bear the ultimate responsibility for kis actions." Felony murder has an intent element: a felon is liable for the consequences resulting from his intent to commit a particular felony.

13 Oklahoma's felony murder statute applies where a defendant or any other person takes the life of another, or if the death of a human being results, during the commission or attempt to commit one of several enumerated felonies, including robbery with a dangerous weapon. The majority states this language shows the Legislature's intent to impute criminal responsibility to a defendant for any death which may occur as a crime is committed. I do not interpret the statute so broadly, nor do I agree that the language unambiguously reflects that intent. On its face, the statute makes a defendant Hable for any homicide occurring during the commission of an enumerated crime. The language itself does not automatically include lability for lawful acts committed by third persons. Self-defense is a form of justifiable homicide, i.e. a taking of life as a matter of right. In other words, self-defense, like the defense of property, is not a crime. The majority extends the law of felony murder to include deaths legally caused by third persons.

T 4 Kinchion and his accomplice threatened the store clerk with a gun during the course of an armed robbery. In self-defense, the clerk killed the accomplice. In holding Kin-chion liable for the accomplice's death, the majority essentially chooses to interpret felony murder as a law of strict liability holding a criminal defendant responsible for any death that happens at the time the defendant attempts to commit a felony, whether or not the death occurs as a result of the felony, and whether or not the act which caused the death was itself lawful. This Court has not previously adopted this interpretation, before or after the 1996 statutory amendment on which the majority relies. The "proximate cause" theory is directly borrowed from civil law, and disregards the actual cause of any death which happens while the defendant is committing a crime.

15 I believe this misinterprets the language of the felony murder statute for two reasons. First, criminal law does not impose strict liability. The criminal justice system focuses on each particular defendant and his personal culpability in a particular crime, taking into account the cireumstances of each crime in order to determine appropriate charges and a just punishment. Second, the majority disregards the fact that the accomplice's death was the result of a lawful act. When he shot Kinchion's accomplice, the victim was acting lawfully in self-defense. He could not be charged with murder or any other form of homicide. A person died when Kinchion participated in an armed robbery. However, under the law, there was no actionable homicide. On its face, the felony murder statute restricts lability for murder to a death resulting from, or occurring during the commission of, an offense. I do not believe the Legislature intended to extend lability for murder to a death that did not result from a crime at all.

1 6 The majority's interpretation yields potentially absurd results. For example, if an innocent bystander sees a robbery, is frightened, and dies of a heart attack, the robber should be guilty of felony murder. Since according to the majority opinion, the death need not be a homicide, a defendant should foresee that bystanders might be frightened and, if they have health problems, might die. During oral argument, the State suggested that if a co-defendant kills himself during the commission of a crime, that would not be felony murder as the death would not be the result of the crime. At least one jurisdiction adopting the proximate cause theory has held that this situation does constitute felony murder, as no independent force intervened between the erime and the death.

17 Finally, I believe this broad extension of the felony murder doctrine poses constitutional problems. Due process requires that a defendant know what constitutes a crime. This Court has often stated, "It is fundamental that statutes creating criminal offenses must be drawn in language sufficient to apprise the public of exactly what conduct is forbidden." I do not believe a felon can be expected to understand that he will be guilty of murder if, while he commits a crime, someone else's lawful act causes a death. I dissent.

T8 I am authorized to state that Judge Strubhar joins in this dissent.

      . Williams v. State, 1975 OK CR 171, 542 P.2d 554, 586, overruled on other grounds by Riggs v. Branch, 1976 OK CR 216, 554 P.2d 823; James v. State, 1981 OK CR 145, 637 P.2d 862, 865, overruled in part on other grounds, Brown v. State, 1987 OK CR 181, 743 P.2d 133 (felony murder statute is intended to prevent certain felonies as well as homicide).

      . Stiles v. State, 1992 OK CR 23, 829 P.2d 984, 996; Brown v. State, 743 P.2d at 138.

      . Wade v. State, 1978 OK CR 77, 581 P.2d 914, 915. See also State v. Sophophone, 270 Kan. 703, 19 P.3d 70, 73 (2001) (purpose of felony murder is to deter defendants from killing negligently or accidentally, and to relieve State of the burden of proving premeditation and malice when victim's death is caused by the killer while he is committing another felony).

      . Hatch v. State, 1983 OK CR 47, 662 P.2d 1377, 1384 (emphasis added).

      . See, eg., Gilson v. State, 2000 OK CR 14, 8 P.3d 883, 903, cert. denied, 532 U.S. 962, 121 S.Ct. 1496, 149 L.Ed.2d 381 (2001); Fields v. State, 1996 OK CR 35, 923 P.2d 624, 634, cert. denied, 520 U.S. 1216, 117 S.Ct. 1704, 137 L.Ed.2d 829 (1997); Powell v. State, 1995 OK CR 37, 906 P.2d 765, 773-74, cert. denied, 517 U.S. 1144, 116 S.Ct. 1438, 134 L.Ed.2d 560 (1996); Hammon v. State, 1995 OK CR 33, 898 P.2d 1287, 1308-09; Freeman v. State, 1994 OK CR 37, 876 P.2d 283, 287, cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503; Hopkins v. Reeves, 524 U.S. 88, 99-100, 118 S.Ct. 1895, 1902, 141 L.Ed.2d 76 (1998) (to support a sentence of death, felony murder statute needs no other mens rea requirement than intent to commit the underlying felony).

      . 21 0.9.2001, § 701.7(B).

      . 21 0.S.2001, § 733.

      . For example, a defendant convicted of felony murder who was liable for murder because he intended to commit the underlying felony is only eligible for the death penalty if he is also personally culpable for the murder, i.e. if he killed, tried to kill or intended to kill the victim, intended use deadly force, or was a major participant in a felony and acted with reckless disregard for bu-man life. Matthews v. State, 2002 OK CR 16, 45 P.3d 907, 923-24, cert. denied, 537 U.S. 1074, 123 S.Ct. 665, 154 L.Ed.2d 570; Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982)(death penalty may be imposed only where defendant intended life be taken or contemplated that lethal force would be used); Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), (requiring a finding that defendant had substantial personal involvement in the underlying felony and exhibited reckless disregard or indifference to the value of human life).

      . Interpreting a similar felony murder statute, the Kansas Supreme Court has recently come to the same conclusion. State v. Sophophone, 270 Kan. 703, 19 P.3d 70, 73 (2001); State v. Murphy, 270 Kan. 804, 19 P.3d 80 (2001).

      . Howard v. State, 545 So.2d 352 (Fla. 1st DCA 1989), review denied, 553 $o.2d 1165 (Fla.1989) (co-defendant died after swallowing cocaine during arrest). Other jurisdictions hold that a co-defendant's death while setting an arson fire creates liability for felony murder. In Re Leon, 122 RJL 548, 410 A2d 121 (1980); State v. Sotteriou, 132 N.J.Super. 403, 334 A2d 47 (1975), cert. denied, 70 N.J. 144, 358 A.2d 191 (1976); State v. Morran, 131 Mont. 17, 306 P.2d 679 (1957); Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464 (1955), overruled on other grounds by Commonwealth ex rel. Shadd v. Myers, 223 A.2d 296 (Pa.1966).

      . See, eg., Gilson, 8 P.3d at 913; Wilkins v. State, 1999 OK CR 27, 985 P.2d 184, 186, cert. denied, 528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000); Hayes v. Municipal Court of Oklahoma City, 1971 OK CR 274, 487 P.2d 974, 976. See also Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, 396, cert. denied, 531 U.S. 888, 121 S.Ct. 208, 148 L.Ed.2d 146 (2000) (statute must be sufficiently clear and explicit for the understanding of ordinary persons).


author: KENNETH L. BUETTNER, Judge.

text:
    2003 OK CIV APP 100
    John R. ROBERSON, David B. Magill, and Andrew O'Dwyer, Plaintiffs/Appellants, v. PAINEWEBBER, INC; Painewebber Group, Inc.; Lehman Brothers, Inc.; Smith Barney, Inc.; Blythe Eastman Painewebber Servicing, Inc.; Fourth Street Associates; RMM Corporation; AJ Corporation; Greater Southwestern Funding Corporation; PHC Corporation; and Midtown Associates Limited Partnership, Defendants/Appellees.
    No. 97,278.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    July 2, 2003.
    Rehearing Denied Aug. 11, 2003.

      C. Michael Barkley, Brad Smith, Elizabeth A. Ballard, Barkely, Titus, Hillis & Reynolds, PLLC, Tulsa, OK, and, Joel H. Bernstein,
    Andrew R. Turner, P. Scott Hathaway, Conner & Winters, Tulsa, OK, and, John T. Schmidt, Willcox & Savage, Norfolk, VA, for Defendants/Appellees UBS Financial Services, Inc., formerly UBS PaineWebber, Inc.; UBS Americas, Inc.; Greater Southwestern Funding Corporation.
    Charles A. Gilman, George Wailand, Cahill, Gordon & Reindel, LLP. formerly Cahill, Gordon & Reindel, New York, NY, and, Reuben Davis, Seott R. Rowland, Boone, Smith, Davis, Hurst & Dickman, Tulsa, OK, for Defendants/Appellees UBS Financial Services, Inc., formerly known as UBS Paine-Webber, Inc. and UBS Americas, Inc.
   Opinion by KENNETH L. BUETTNER, Judge.

KENNETH L. BUETTNER, Judge.

11 Plaintiffs sought class certification to pursue their allegations of fraud in the marketing and sale of high-risk corporate bonds against Defendants. The trial court denied the application finding that Plaintiffs "failed to establish that the relevant questions of law or fact common to the members of the class predominate over any questions affecting any individual member." Finding no abuse of discretion, we affirm.

T2 A trial court's class certification order is reviewed for abuse of discretion. Scoufos v. State Farm Fire & Cas. Co., 2001 OK 113, 41 P.3d 366. A denial of class certification rests on an adequate record when any of the five 12 O.S. Supp.1984 § 2023 prerequisites is absent. Mattoon v. City of Norman, 1981 OK 92, 633 P.2d 735.

{3 Plaintiffs invested in Serial Zero Coupon Series B Bonds of Greater Southwestern Funding Corporation, an entity created by PaineWebber to issue the B Bonds. Integral parts of the structure supporting the value of the bonds was Reading & Bates Corporation's tenancy in the Mid-Continent Tower, a Tulsa, Oklahoma office building, and mortgages on the building. Plaintiffs claim that the appraisal of the property was conducted fourteen months before the initial public offering of the B Bonds; that it was greatly inflated and that they were not informed of this They further stated that they were totally dependent on the representations of PaineWebber brokers who used uniform sales materials to induce them to buy. Plaintiffs sought a nation-wide class.

1 4 The issues appealed relate to Plaintiffs' claim of fraud. Plaintiffs contend that the trial court (a) ignored the substantial evidence submitted showing commonality and predominance and precedent with respect to standardized fraudulent sales methods or omissions of material fact; (b) improperly found that fraud claims premised in part on oral misrepresentations cannot be certified; (c) improperly found that individual reliance issues will overwhelm any common issues; and (d) ignored the settled rule that close questions respecting the propriety of class certification must be resolved in favor of certifying a class.

T5 With respect to the assertion that the trial court ignored their evidence of commonality and predominance of fact and law, we hold that the trial court did not abuse its discretion when it found Plaintiffs did not carry this burden. Plaintiffs' common law fraud claims include at least 875 Series B bondholders who invested more than $6 million pursuant to the April 1, 1985 Prospectus and many different brokers with deals struck in about twenty states.

16 The record reveals that the Prospectus was distributed to some but not all investors, and that brokers used various internal PaineWebber memoranda as their primary resource when talking with potential customers. These memoranda were not shown to customers. They do not contain all of the information found in the prospectus. Plaintiffs argue that these memoranda are the equivalent of a "seript," so as to rebut the usual course that fraud based upon oral representations is not generally amenable to class certification. See Bunch v. K-MART Corporation, 1995 OK CIV APP 41, 898 P.2d 170, cert. den. (Plaintiffs alleged, inter alia, that K-Mart automotive employees misrepresented that they needed repairs. In common law fraud, the reliance element each individual must prove defeated class action certification.); Yadlosky v. Grant Thornton L.L.P., 197 F.R.D. 292 (E.D.Mich.2000)(Class action usually inappropriate when plaintiffs indicate they relied primarily on oral representations when deciding to buy securities); Kelley v. Mid-America Racing Stables, Inc., 139 F.R.D. 405 (W.D.Okla.1990) (Plaintiffs relied on advice given by stockbrokers. Common law fraud claims require showing of individual reliance which every member of the proposed class would have to prove, making individual claims predominate.) However, the trial court found that the relationship between each investor and PaineWebber would be a critical jury question and that individual reliance issues would "overwhelm any common issues." Rather than relying on misrepresentations or omissions in documents received by each investor, it is clear that Plaintiffs alleged oral misrepresents tions and omissions for the principal bases of their fraud claims. We cannot say that the trial court abused its discretion in making these findings.

1 7 Although not impossible, a common law claim of fraud in multiple states is always difficult. "... [Plurported class members residing in other states could not be bound by a fraud action governed by Oklahoma law." Sias v. Edge Communications, Inc., 2000 OK CIV APP 72, ¶ 18, 8 P.3d 182, 188. The Stas court also stated that the fraud element of individual reliance meant that common issues of law and fact could not predominate.

18 Finally, Plaintiffs contend that there was a close question and that the trial court should have certified the class on that ground. See Ysbrand v. DaimlerChrysler Corporation, 2003 OK 17, 81 P.3d 618, citing Perry v. Meek, 1980 OK 151, ¶ 15, 618 P.2d 934, 940. The record, however, does not support the existence of a close question.

I 9 Because the record presented supports the trial court's finding that Plaintiffs failed to carry their burden of showing that questions of law or fact common to the members would predominate over questions affecting individuals, we hold it did not abuse its discretion in denying class certification and therefore AFFIRM.

ADAMS, P.J., and JOPLIN, C.J., concur.

      . 12 0.8. Supp.1984 § 2023:
      A. PREREQUISITES TO A CLASS ACTION. One or more members of a class may sue or be sued as representative parties on behalf of all only if:
      1. The class is so numerous that joinder of all members is impracticable;
      2. There are questions of law or fact common to the class;
      3. The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
      4. The representative parties will fairly and adequately protect the interests of the class.
      B. CLASS ACTIONS MAINTAINABLE. An action may be maintained as a class action if the prerequisites of subsection A of this section are satisfied and in addition:

      3. The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superi- or to other available methods for the fair and efficient adjudication of the controversy. The maiters pertinent to the findings include:
      a. The interest of members of the class in individually controlling the prosecution or de-{ense of separate actions,
      b. The extent and nature of any Iftigation concerning the controversy already commenced by or against members of the class,
      c. The desirability or undesirability of concentrating the litigation of the claims in the particular forum, and
      d. The difficulties likely to be encountered in the management of a class action.

      . "A bond which pays no coupons, is sold at a deep discount to its face value, and matures at its face value. A zero-coupon bond has the important advantage of being free of reinvestment risk, though the downside is that there is no opportunity io enjoy the effecis of a rise in market interest rates. Also, such bonds tend to be very sensitive to changes in interest rates, since there are no coupon paymenis to reduce the impact of interest rate changes. In addition, markets for zero-coupon bonds are relatively illiquid. Under U.S. tax law, the imputed interest on a zero-coupon bond is taxable as it accrues, even though there is no cash flow." fnvestor-words.com, WebFinance, Inc., © 1997-2003.

      . Reading & Bates was an off-shore drilling company which apparently fell on hard times after the oil bust of the early 1980's. It defaulted on its lease obligations.

      . Plaintiffs pled negligent and intentional breach of fiduciary duties as well, but do not appeal the denial of class certification on those grounds.


author: PER CURIAM:

text:
    2003 UT 35
    In re INQUIRY CONCERNING A JUDGE, 00-3JU-094 and 01-3JU-013.
    No. 20030345.
    Supreme Court of Utah.
    Sept. 12, 2003.
    Colin R. Winchester, Salt Lake City, for the Judicial Conduct Commission.
    A. Robert Thorup, Scott H. Clark, Stephen B. Nebeker, Salt Lake City, for Judge Anderson.
   PER CURIAM:

T1 This case raises the issue of disqualification of a Supreme Court Justice in the context of judicial disciplinary proceedings. Judge Joseph W. Anderson has filed a motion seeking to disqualify Justice Michael J. Wilkins from participating in this court's review of proceedings before the Judicial Conduct Commission involving Judge Anderson.

PROCEDURAL BACKGROUND

12 The Judicial Conduct Commission investigated and conducted hearings regarding complaints against Judge Anderson. The Commission's findings and proposed sanctions were forwarded to this court for review pursuant to article VIII, section 13 of the Utah Constitution. Thereafter, Judge Anderson moved to recuse Justice Wilkins. In an order dated July 23, 2003, we summarily denied the motion, indicating that an opinion would follow. We now address the basis for our denial of Judge Anderson's motion to recuse.

DISCUSSION

13 Judge Anderson relies on two facts in requesting recusal. First, he notes that Justice Wilkins authored an opinion critical of Judge Anderson in another case. Second, Judge Anderson points to the fact that Justice Wilking' son-in-law is a partner in the law firm of Ray, Quinney & Nebeker, the same firm that Judge Anderson recently retained to represent him in these proceedings. For the reasons set forth below, we conclude that neither of these facts warrants disqualification of Justice Wilkins.

14 We begin by considering whether either of the facts raised by Judge Anderson requires disqualification under the provisions of the Code of Judicial Conduct, which was enacted by this court pursuant to its constitutional rule-making authority. Utah Const. art. VIII, § 4. We first examine whether the Code requires disqualification because Justice Wilkins authored an opinion in another matter involving Judge Anderson.

1 5 The provisions of the Code addressing disqualification are contained in Canon 3 E. The applicable portion of Canon 3 E requires disqualification in proceedings in which the judge's impartiality might reasonably be questioned, including but not limited to instances where the judge has a personal bias or prejudice concerning a party or a strong personal bias involving an issue in the case. Code of Judicial Conduct Canon 3 E(1), (1)(a) (2003). The fact that Justice Wilkins previously heard and decided a case involving Judge Anderson does not establish any bias or prejudice concerning either Judge Anderson or any of the issues presented by this case.

16 Judges typically bring to the bench a wealth of both legal and life experience that shapes their views and reasoning. Accordingly, the fact that a judge may have views on a particular issue or that a judge adopted a particular point of view or interpretation of the law in a prior case does not constitute bias or prejudice. Simply put, the concepts of bias and prejudice do not include the general views that a judge may have regarding legal issues presented in a lawsuit. Rather, " '[Tblias and prejudice are only improper when they are personal!" In re Inquiry Concerning a Judge, 1999 UT 81, ¶ 35, 984 P.2d 997 (quoting Jeffrey M. Shaman et al., Judicial Conduct and Ethics § 4.04 (2d ed.1995) [hereinafter Shaman]).

T7 In this case, Judge Anderson has not alleged that Justice Wilkins harbors any personal bias or prejudice toward Judge Anderson. Rather, Judge Anderson's allegation is limited to the fact that Justice Wilkins previously ruled against Judge Anderson on the particular issue that was presented in a prior case. There is neither a factual nor a legal basis, however, for concluding that a judge who rules against a party on a particular legal issue is biased against that party. For this reason, bias or prejudice must usually stem from an "extrajudicial source," not from occurrences in proceedings before the judge. Id. (citing Shaman, supra ).

T8 In summary, we hold that Justice Wil-king' prior ruling against Judge Anderson in another case does not establish bias or prejudice requiring disqualification, nor does it constitute a situation where Justice Wilkins' impartiality might reasonably be questioned.

19 We now turn to the second basis for disqualification asserted by Judge Anderson-the fact that Justice Wilkins' son-in-law is a member of the law firm that Judge Anderson recently retained to represent him in this matter. Canon 83 E(1)(d) provides guidance in analyzing this asserted basis for disqualification. It specifies that a judge shall disqualify himself in those cases where the judge, the judge's spouse, or a person within the third degree of relationship to either of them or the spouse of such person "is acting as a lawyer in the proceeding" or "is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding." Code of Judicial Conduct, Canon 3 (ii) (2008).

T10 Justice Wilkins' son-in-law does fall within the third degree of relationship to Justice Wilkins. However, in this case, Justice Wilking' son-in-law is not personally acting as a lawyer in the proceeding. "The fact that a [lawyer] in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge." Model Code of Judicial Conduct Canon 3, emt. (E)(1)(d) (1990). We therefore address whether Justice Wilkins' son-in-law has more than a de minimis interest in the outcome of Judge Anderson's case.

111 The commentary to the Model Code of Judicial Conduct, upon which Utah's Code is based, recognizes the difficulty of determining whether and under what cireum-stances a law firm partner who is related to a judge has an interest that could be "substantially affected" when other attorneys from his or her firm represent a party before that judge. Many factors are relevant to such a determination. They include the size of the firm, the status of the judge's relative within the firm, the type of proceeding, the amount in controversy, and the fee arrangement between the firm and its client. For example, a high profile case involving a substantial amount in controversy, where the firm of the judge's relative had entered into a contingent fee arrangement, would present a much different case from one in which the amount in controversy was small or nonexistent, the firm billed its time hourly, and the case was not likely to have a significant effect on the firm's stature or reputation.

{ 12 We are aware that this court, in interpreting this Canon, has adopted a bright-line rule that a judge should disqualify herself or himself in any case where the judge is related to a partner of a party's attorney(s). Regional Sales Agency, Inc. v. Reichert, 830 P.2d 252, 257 (Utah 1992). For a number of reasons, however, we decline to apply the holding in Reichert to this particular case involving a matter of alleged judicial misconduct.

T13 The Reichert court adopted this "bright-line proscription" largely to avoid "expensive and time-consuming inquir[ies] into every fee arrangement." 880 P.2d at 257. In so doing, it noted the difficulty of determining whether interests are "more than de minimis" or whether such interests might be "substantially affected" by the outcome of a case. Those difficulties are simply not present in cases involving review of judicial discipline matters where no money is at issue and there is no possibility of a contingent fee arrangement.

T14 Other considerations also counsel against application of the bright-line rule in cases involving review of judicial discipline matters under this court's constitutional authority. The Utah Constitution charges the Supreme Court with the sole responsibility of reviewing the findings and recommendations of the Judicial Conduct Commission. Utah Const. art. VIII, § 18. Accordingly, we are concerned that applying the bright-line Reic-hert rule to cases involving judicial discipline could too easily cause us to abdicate our constitutional duty.

115 We are satisfied that in this case, where money is not at stake, neither a firm as large and well-established as Ray, Quin-ney & Nebeker nor its partner, the son-in-law of Justice Wilkins, stands to gain or lose financially or in reputation sufficiently to raise a reasonable question as to Justice Wilkins' impartiality. This is particularly true where any bias on the part of Justice Wilkins would presumably benefit, rather than prejudice, the moving party.

" 16 We hold that the facts on which Judge Anderson relies do not create a reasonable basis for questioning the impartiality of Justice Wilkins. Accordingly, Judge Anderson's motion to disqualify Justice Wilkins from this case is denied.

T 17 Justice WILKINS does not participate herein.

      . Prior to his appointment to this court, Justice Wilkins was a member of the Utah Court of Appeals, where he wrote the opinion in Office of the Guardian Ad Litem v. Anderson, 1999 UT App 251, 987 P.2d 611. That case involved a petition filed by the office of the guardian ad litem seeking an extraordinary writ directing Judge Anderson to hold a final adjudication hearing within the timetable mandated by statute. In granting the writ, the court of appeals held that the sixty-day period imposed by the statute was mandatory and not subject to waiver.
      The judicial conduct matter now before this court bears some relationship to that case inasmuch as it arises from a complaint filed with the Judicial Conduct Commission by the office of the guardian ad litem, in which one of the bases for the complaint was Judge Anderson's alleged failure to hold final adjudication hearings within the statutory period.

      . We use "related" here in the way it is used in the Canon, ie., to mean "the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person." Code of Judicial Conduct Canon 3 E(1)(d) (2003).

      . Our rejection of the bright-line rule in this case is based on the unique circumstances of a judicial discipline matter where we exercise our constitutional responsibility as the only body assigned to review and implement orders of the Judicial Conduct Commission. In other situations, the bright-line rule enunciated in Reichert remains applicable.

      . Justice Wilkins' son-in-law is a partner in the firm hired by Judge Anderson. Accordingly, if Justice Wilkins were to be biased, he presumably would be biased in favor of Judge Anderson. In this case, the Judicial Conduct Commission, the party presumably disadvantaged by the firm's relationship to Justice Wilkins, has not sought disqualification. While we do not suggest that Judge Anderson selected his lawyers with disqualification in mind, we are nevertheless cognizant of the fact that allowing a party to disqualify a judge by doing nothing more than hiring a firm where a judge or one of the judge's family members is related to a partner invites judge shopping. See, eg., Statement of Recusal Policy, United States Supreme Court press release, November 1, 1993 (signed by seven justices) (opining that a bright-line rule would multiply opportunities for "selecting law firms with an eye to producing the recusal of particular Justices"); Pashaian v. Eccelston Props., 88 F.3d 77, 84-85 (2d Cir.1996) (noting the "potential for mischief in ... an inflexible rule" that would allow "a party to recuse a judge by hiring a particular lawyer").


author: THORNE, Judge:

text:
    2003 UT App 383
    Nile CHAPMAN; Roger Chapman; and Gordon Harmston, Trustee of Eugene Harmston Trust, Plaintiffs and Appellants, v. UINTAH COUNTY; Commonwealth Land Title Insurance Company; and Basin Land Title and Abstract, Inc., Defendants and Appellees.
    No. 20010816-CA.
    Court of Appeals of Utah.
    Nov. 14, 2003.

      James A. Beckwith, Arvada, Colorado, and Daniel S. Sam, Vernal, for Appellants.
    Clark B. Allred and Clark A. McClellan, McKeachnie Allred McClellan & Trotter, Vernal, and Richard A. Rappaport and Leslie Van Frank, Cohne Rappaport & Segal, Salt Lake City, for Appellees.
    Before Judges BILLINGS, ORME, and THORNE.
   OPINION

THORNE, Judge:

T1 Nile Chapman, Roger Chapman, and Gordon Harmston, as trustee for the Eugene Harmston Trust (collectively, Chapman), appeal a jury verdict, finding that a road adjacent to Chapman's property was a Uintah County public road. Chapman also appeals a grant of summary judgment to Commonwealth Land Title Insurance Company and Basin Land Title & Abstract, Inc. (collectively, Commonwealth). We affirm.

BACKGROUND

1 2 In 1997, Chapman anticipated purchasing property located in Uintah County adjacent to a road commonly referred to as the "Wyasket Bottom Road." Chapman obtained a title insurance policy from Commonwealth which led Chapman to believe the road next to the property was a private road attached to the property. Before Chapman purchased the property, the road had been used frequently by members of the public. Specifically, oil company employees testified that they used the road on average four or five times per month when returning to Vernal, Utah, from surrounding oil fields. These oil company employees also testified that they used the road when accessing surrounding government land and often saw government workers doing the same. Other members of the public testified that they used the road year-round, without permission and without encountering any gates or other restrictions, to hunt, trap, fish, sightsee, and bird-watch.

T3 Chapman ultimately purchased the property in August and erected a gate across the Wyasket Bottom Road. Uintah County informed Chapman that the road was public and ordered Chapman to remove the gate. Chapman filed a declaratory judgment against the County seeking to clarify whether the road was private or public. Chapman joined Commonwealth in the suit, claiming Commonwealth had breached its contractual duty to Chapman by not defending Chapman's title against Uintah County, had negligently misrepresented to Chapman that the Wyasket Bottom Road was not a county road, and had performed its title search negligently.

{4 Commonwealth filed a motion for partial summary judgment, which was granted. The remaining matters proceeded to trial and the jury returned a verdict in favor of Uintah County. Chapman appeals.

ISSUES AND STANDARDS OF REVIEW

T5 Chapman argues that the trial court erred in granting Commonwealth's motion for summary judgment. "We review the district court's summary judgment ruling for correctness, granting no deference to its legal conclusions." Woodbury Amsource, Inc. v. Salt Lake County, 2003 UT 28,¶ 4, 73 P.3d 362.

16 Chapman next argues that the trial court erred by not giving plaintiffs instructions 5, 6, 7, and 9 and in giving instruetion 33, which Chapman claims inaccurately states the law. " ''Whether the trial court's refusal to give a proposed jury instruction constitutes error is a question of law, which we review for correctness" " State v. Bluff, 2002 UT 66,¶ 21, 52 P.3d 1210 (citations omitted). Likewise, "[wlhether a jury instruction correctly states the law presents a question of law which we [also] review for correctness." State v. Houskeeper, 2002 UT 118,¶ 11, 62 P.3d 444.

17 Chapman next claims that the trial court erred in excluding certain exhibits as irrelevant. "The trial court has broad discretion in determining the relevancy of offered evidence, and error will be found only if the trial court abused its discretion." Larsen v. Johnson, 958 P.2d 953, 956 (Utah App.1998).

18 Chapman, lastly argues that the jury verdict is not supported by clear and convincing evidence.

" 'We view the evidence in the light most supportive of the verdict, and assume that the jury believed those aspects of the evidence which sustain its findings and judgment.... [Wle will upset a jury verdict only upon a showing that the evidence so clearly preponderates in favor of the ... appellant that reasonable people would not differ on the outcome of the case." "

Brookside Mobile Home Park, Ltd. v. Pee-bles, 2002 UT 48," 29, 48 P.3d 968 (alteration in original) (citations omitted).

ANALYSIS

I. Commonwealth's Motion for Summary Judgment

A. Breach of Title Insurance Contract

19 Chapman claims that the trial court erred in dismissing his claim against Commonwealth for breach of contract. Below, Chapman argued that Commonwealth breached its contractual duty by not defending Chapman's title against Uintah County. In contrast, Chapman, for the first time on appeal, argues that Commonwealth breached the contract because it did not pay Chapman damages for the diminution in value to Chapman's title.

110 Chapman's claim is without merit. First, the issue of whether Chapman may recover damages under the title insurance policy for any diminution in value to its property is not before us because Chapman did not raise this issue below and does not argue plain error or exceptional cireumstances on appeal. See State v. Hodges, 2002 UT 117,-TI 5, 63 P.8d 66 (noting, " [tlhe general rule is that [absent a elaim of plain error or exceptional cireumstances] issues not raised [in the district court] cannot be argued for the first time on appeal ...' ") (quoting State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994)).

{11 Second, when the trial court granted Commonwealth's motion for summary judgment it preserved Chapman's right, in a latter action, to seek damages against Commonwealth under the title insurance policy. Commonwealth also conceded this point during oral argument before this court. Thus, we do not reach the issue of whether Chapman may recover under the title insurance policy for any diminution in value to its property.

B. Negligence

112 Chapman next argues that Commonwealth is liable for professional negligence for not discovering that the road was a county road. Chapman claims that Utah Code Annotated section 31A-20-110(1) sets forth a "specific standard for title searches, the breach of which would be negligence per se." Utah Code Ann. § 31A-20-110(1) (1999). Section 31A-20-110(1) provides: "No title insurance policy may be written until the title insurer or its agent has conducted a reasonable search and examination of the title and has made a determination of the insurability of title under sound underwriting principles." Id.

113 In the alternative, Chapman argues that Christenson v. Commonwealth Land Title Insurance Co., 666 P.2d 302 (Utah 1983), establishes a duty requiring title insurance companies "to use reasonable care to not mislead one whom [the company] knew would justifiably rely upon the facts as represented." Id. at 306. In summary, Chapman asserts that Commonwealth is liable, not only in contract for defects in the title insurance policy, but also in tort for negligence. We disagree.

114 In Culp Construction Co. v. Build-mart Mall, 795 P.2d 650 (Utah 1990), the Utah Supreme Court addressed the issue of whether a title insurance company was liable for errors in tort, in addition to its liability under the insurance policy. See id. at 658.

15 In Culp, a mortgage company agreed to lend a builder funds to complete a project in exchange for a second position deed of trust. See id. The mortgage company obtained title insurance and sent the title insurance company a letter containing escrow instructions, which restricted distribution of funds from escrow until the title insurance company verified that the mortgage company was given a second position deed of trust and that the "only prior exception to the Trust Deed [was] those listed in [the] Commitment for Title Insurance." Id. at 652. After the funds were distributed, the builder defaulted and the mortgage company learned of the existence of several liens that had not been reported in the title insurance commitment. See id. The mortgage company's lien was extinguished in a subsequent foreclosure action and the mortgage company sued the title insurance company. See id. The trial court granted the title insurance company summary judgment and the mortgage company appealed, arguing that material issues of fact existed as to whether the title insurance company negligently misrepresented the state of the title. See id.

T16 When considering whether the title insurance company was liable in tort, as well as under the insurance policy, the supreme court stated that " [tlhe prevailing view remains not to impose liability in tort on a title company.' " Id. at 658 (alteration in original) (citations and footnotes omitted). The court stated that "even though section 31A-20-110(1) imposes a duty [to conduct] reasonable search and examination for the purpose of determining the insurability of title, it does not impose a duty to abstract titles upon title insurance companies." Id. at 654.

The function, form, and character of a title insurer is different from that of an abstractor. One who hires a title insurance company does so for the purpose of obtaining the assurance or guarantee of obtaining a certain position in the chain of title rather than for the purpose of discovering the title status. A title insurance company's function is generally confined to the practice of insurance, not to the practice of abstracting.

Id. Accordingly, Chapman's claim that Commonwealth is liable in tort, similar to an abstractor, for its error in representing the title in the insurance commitment and policy is not supported by our case law.

However, Chapman next argues that Commonwealth "voluntarily assume[d] the role of abstractor" in this case by "mak{[ing] legal conclusions about the public records." In Culp, the court concluded that, despite the general prohibition against title insurance company's tort liability, the title insurance company could be liable for a tort independent of the title insurance policy. See id. There, the second lienholder placed conditions on the title insurance company distributing the escrow funds. See id. at 655. The court concluded that the title insurance company "may have assumed the duties and responsibilities of an abstractor when it received the escrow instructions from [the see-ond lien holder] which explicitly directed [the title company] not to transfer the loan funds unless the title status remained the same as stated on the commitment." Id. Accordingly, in that case, summary judgment on this tort was improper.

[ 18 Chapman, however, asserts that when Commonwealth stated in the policy that the road was not a county road that Commonwealth had made a legal determination and thereby assumed the role of an abstractor. We disagree. Unlike in Culp, where the title insurance company assumed a role separate and apart from the issuance of the title insurance commitment and policy, see id., Commonwealth has not assumed any additional role and did not act as an abstractor. Thus, Commonwealth is held to the standard of care of an ordinary title insurance company and is liable only under the principles of contact. Chapman's attempt to recover under tort is without merit.

II. Jury Instructions

A. Instructions Number 5, 6, and 7

119 Chapman argues that the trial court erred in not submitting to the jury proposed instructions 5, 6, and 7. In these instructions, Chapman wanted to instruct the jury that a landowner could only abandon his land if he consented to the road becoming a public thoroughfare. The court provided the parties an opportunity to argue this issue. After hearing arguments from both sides the court concluded that

"it's clear that there's only three elements [to abandonment].... [The Supreme Court [has] clearly indicate{d] that it is not necessary to show consent of the owner [to prove abandonment].". ... The road is a public road if the evidence establishes by clear and convincing evidence each of the following: One, continuous use by the public; two, as a public thoroughfare; three, for a period of ten [continuous] years.

120 We agree. In Heber City Corp. v. Simpson, 942 P.2d 307 (Utah 1997), the City sought to condemn property near a local airport. See id. at 308. The landowners, disappointed with the compensation offer, argued that the City had not considered the loss of access to their property resulting from the taking of a private road. See id. The City responded that the road was a public road and could be closed at the City's discretion. See id. at 309. The court set forth the following standard to determine whether a road was public: "for a road to become a public highway by dedication ... there must be (i) continuous use, (M) as a public thoroughfare, (iii) for a period of ten years." Id. at 810. The court did not indicate that landowner consent was necessary to prove abandonment or dedication of a road. Thus, an "owner['s] intent is ... irrelevant to determining whether a road has been dedicated or abandoned to public use," Campbell v. Box Elder County, 962 P.2d 806, 807 n. 3 (Utah Ct.App.1998), and the trial court did not exceed its permitted range of discretion in refusing to give the tendered jury instructions.

B. Instruction Number 9

121 The jury was instructed that Uintah County had to prove by clear and convincing evidence that the road had been used continuously by the public as a public thoroughfare for a period of ten years. Chapman also asked the trial court to instruct the jury that " 'seasonal use' [such as use only in hunting season] . was not sufficient to establish" continuous use. In contrast, the County introduced evidence that the road was used year round and argued that "continuous use" did not require that the public use the road constantly.

22 In Campbell v. Box Elder County, 962 P.2d 806 (Utah Ct.App.1998), this court made clear that there can be "continuous and uninterrupted use of a road over ten years where 'the public, even though not consisting of a great many persons, made a continuous and uninterrupted use ... as often as they found it convenient or necessary.' " Id. at 809 (citations omitted). Furthermore, the court stated that " 'use may be continuous though not constant ... provided it occurred as often as the claimant had occasion or chose to pass. Mere intermission is not interrupted." " Id. (citations omitted).

123 The trial court did not exeeed its permitted range of discretion in refusing instruction number 9, for the law supports the County's position.

C. Instruction Number 33

$24 Chapman next argues that the trial court erred in not giving instruction number 38. This instruction "advised the jury that they were to determine whether the existence of gates 'interrupted' the continuity of the use of [the frload." Chapman maintained that the presence of a gate served to interrupt the "continuity of use."

T25 At trial, Chapman argued, during his closing argument, that the presence of gates across the property signified that the road was private. Uintah County objected. The court allowed Chapman to finish his closing argument and then discussed the issue with the attorneys. After much discussion, the court decided to give the following instruction to the jury:

There has been testimony concerning certain gates across the roadway at various times. Such gates may or may not interrupt public use of the roadway. Whether the gates which were placed across the roadway did in fact interrupt use by the public is an issue for the jury to decide.

Chapman's attorney not only failed to object to this instruction but actually agreed to it on the record.

126 "[In order to appeal the giving or the refusal of a jury instruction, a party must properly object to the instructions in the trial court and explain its grounds, with specificity, for challenging the instructions." R.T. Nielson Co. v. Cook, 2002 UT 11,¶ 10, 40 P.3d 1119. "If a party does not object and articulate the grounds with sufficient specificity such that the issue is presented before the trial court for consideration, that issue cannot be raised on appeal." Id. Chapman never renewed any objection to jury instruction number 38 after the parties agreed upon its content and thus, cannot raise this argument on appeal.

D. Failure to Admit Exhibits 4 and 5

127 Chapman claims that the trial court improperly excluded two trial exhibits on the grounds that they were irrelevant. Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evi-denee." Utah R. Evid. 401. "Evidence which is not relevant is not admissible." Utah R. Evid. 402.

128 " '[Wle will find error in a relevancy ruling only if the trial court has abused its discretion. Additionally, an erroneous evidentiary ruling will lead to reversal only if, absent the error, there is a reasonable likelihood that there would have been a more favorable result. . . .' " Larsen v. Johnson, 958 P.2d 953, 957 (Utah App.1998) (citations omitted).

129 Here, Chapman tendered exhibits 4 and 5 for admission. Chapman claimed that exhibits 4 and 5 were "rights-of-way agreements" with the oil companies evidencing that Chapman and his fellow landowners had given the oil companies permission to use the road to maintain a pipe that ran parallel to the road. Consequently, Chapman argues, the oil company traffic could not be used to show that the road was public. See Campbell v. Box Elder County, 962 P.2d 806, 809 (Utah Ct.App.1998) (noting that "permissive use cannot result in either adverse possession or dedication of private property to the public"). The court disagreed and stated:

The way I read [the right-of-way agreements] ... is that [they] give [the oil companies] a right to come upon the property in connection with their rights ... to maintain the pipe.... [When oil company employees] drive[ ] across [the property] to get to some other location,] they're not proceeding, in my judgment, on this right-of-way.
[In order to introduce [these exhibits] you've got to lay a foundation.... [Its your burden to show that this particular document has relevance. You can only do that, in my judgment, by showing that there were oil field companies on that property pursuant to this [right-of-way], and you haven't done that.
[Greg Harmston testified that the pipe was laid] but he hasn't said that there was anybody that had ever come on to inspect it, and that's what you're arguing to me, is that the people were going by and inspecting as they go by....

30 We conclude that the trial court did not exceed its permitted range of discretion in excluding these two exhibits The evi-denee did not support Chapman's theory that the oil company utilized the road only as a result of having been authorized by Chapman in the right-of-way agreements. The trial court provided Chapman with an opportunity to lay a proper foundation for admitting these exhibits and Chapman was unable to do so. In light of this, Chapman's claim is without merit.

E. Jury Verdict is Not Supported by the Evidence

181 Chapman asks this court to set aside the jury verdict because it is "not supported by clear and convincing evidence of dedication by abandonment." "To support an insufficiency of the evidence claim on appeal, 'the one challenging the verdict must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict" " Child v. Gonda, 972 P.2d 425, 433 (Utah 1998) (citations omitted).

' 32 Here, Chapman has "failed to properly marshal all evidence supporting the jury verdict and explain how, in spite of this evidence, the jury verdict should be overturned." Brookside Mobile Home Park v. Peebles, 2002 UT 48, ¶ 30, 48 P.3d 968. Instead, Chapman picks and chooses the facts in favor of his position and then merely restates the arguments raised below. For this reason, we .conclude that Chapman has not complied with his marshaling requirement and do not further address this argument.

III. Attorney Fees

183 Uintah County seeks an award for attorney fees on appeal, pursuant to Utah Rules of Appellate Procedure 83, on the grounds that Chapman's appeal was frivolous. "Under rule 33, a frivolous appeal is one that 'is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law.' " Prince v. Bear River Mut. Ins. Co., 2002 UT 68,¶ 59, 56 P.3d 524 (quoting Utah R.App. P. 83(b)). While we have determined that each of Chapman's claims is without merit, his appeal of these claims is not frivolous. Thus, we conclude that Uintah County is not entitled to fees.

CONCLUSION

'I 34 For the first time on appeal, Chapman argues that Commonwealth breached its contractual duty to pay damages. Because the trial court was not given an opportunity to rule on this issue, we do not address it. We also conclude that Chapman's negligence claim against Commonwealth is without merit. Also, Chapman's claim that Commonwealth assumed the role of an abstractor in this case is without sufficient factual support.

135 We further conclude that the trial court did not exceed its permitted range of discretion when it refused to give Chapman's proposed instructions 5, 6, 7, 9, and 33. Furthermore, the trial court did not exceed its permitted range of discretion in excluding exhibits 4 and 5, since Chapman neither laid the proper foundation for their admission nor demonstrated their relevance. We decline to address Chapman's final argument that the jury verdict is not supported by the evidence because Chapman does not properly marshal the evidence. Finally, we deny Uintah County's request for attorney fees.

1 36 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and GREGORY K. ORME, Judge.

      . The policy stated that "[this policy does not insure against loss or damage (and the Company will not pay costs, attorney's fees or expenses) which arise [because the] ... Property is not located on a county road{[. Furthermore,] Company DOES NOT INSURE ACCESS."

      . Chapman also argues that the "easement must be limited to its historical use, and the trial court erred in refusing to do so." Chapman did not raise this issue below and does not argue plain error or exceptional circumstances on appeal. Thus, we do not address this argument. See State v. Hodges, 2002 UT 117,¶ 5, 63 P.3d 66.

      . Specifically, Chapman argues that the amount of these damages is undetermined, thus a material fact is in dispute.

      . Chapman also raises for the first time on appeal the contention that the trial court dismissed his claims against Commonwealth on the mistaken belief that the parties had agreed to arbitration. " 'The general rule is that issues not raised [in the district court] cannot be argued for the first time on appeal. ...' " Hodges, 2002 UT 117 at ¶ 5, 63 P.3d 66 (quoting State v. Lopez, 886 P.2d 1105, 1113 (WViah 1994)). For this reason, we do not address this issue.

      . " 'Abstractor' is not defined in the Utah Code; however, 'abstract of title' has been defined as [a] condensed history of the title to land, consisting of a synopsis or summary of the material or operative portion of all the conveyances, of whatever kind or nature, which in any manner affect said land, or any estate or interest therein, together with a statement of all liens, charges, or liabilities to which the same may be subject, and of which is in any way material for purchasers to be apprised. An epitome of the record evidence of title, including maps, plats, and other aids." Culp Constr. Co. v. Buildmart Mall, 795 P.2d 650, 654 (Utah 1990) (quoting Black's Law Dictionary 10 (5th ed.1979)).

      . Furthermore, the policy itself specifically limits Commonwealth's liability. The policy provides: "Any claim of loss or damages, whether or not based on negligence and which arises out of the status of the title to the estate or interest covered hereby or by any action asserting such claim, shall be restricted to this policy."

      . Additionally, Chapman attacks the reasoning in Heber City Corp. v. Simpson, 942 P.2d 307 (Utah 1997), and argues that we should either overturn or ignore the case. We decline to ignore clear precedent and note that we are not empowered to reverse rulings of the Utah Supreme Court. See generally State v. Thurman, 846 P.2d 1256 (Utah 1993).