author: ORME, Judge:

text:
    The ESTATE OF Amy Allen PRICE, Appellee, v. Michael HODKIN, Katherine S. Hodkin, and the Estate of Virginia S. Anderson, Appellants.
    No. 20170279-CA
    Court of Appeals of Utah.
    Filed August 8, 2019
    Stephen P. Horvat and Heather M. Sneddon, Salt Lake City, Attorneys for Appellants
    Vincent C. Rampton, Salt Lake City, Attorney for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judges Kate Appleby and Diana Hagen concurred.
    Opinion
   ORME, Judge:

¶1 Plaintiff Amy Allen Price (Amy) brought an action to quiet title in a property's mineral rights by challenging a deed that had been recorded 47 years earlier. Because Amy and her predecessors unreasonably delayed in bringing suit after obtaining constructive knowledge of the cause of action and because their lack of diligence likely prejudiced the defendants to her quiet title action, we hold that the district court improperly granted summary judgment in favor of Amy. We thus reverse the summary judgment and remand for further proceedings consistent with this opinion.

BACKGROUND

¶2 The property at issue (the Property) consists of two parcels of land in Duchesne County. It was co-owned by two sisters, Virginia Nutter Price (Virginia) and Catherine Nutter Story (Catherine) (collectively, the Sisters), for more than 20 years.

¶3 In 1945, the Property was conveyed by two separate deeds (the 1945 Deeds) to the Sisters "as joint tenants and not as tenants in common, with full rights of survivorship." Their mother, Katherine F. Nutter (Mother), conveyed the first parcel of land to them. Robert E. Mark (Mark), an attorney who, for decades, represented the Nutter family and its business, the Preston Nutter Corporation (PNC), conveyed the second parcel of land to the Sisters. As there is no record of any conveyance taking place between 1945 and 1966 that would have severed the Sisters' joint tenancy, it would appear that their co-ownership of the Property came to an end in 1966 with Catherine's passing.

¶4 Mark served as executor of Catherine's estate. Virginia presented a claim to the estate in the form of a promissory note in favor of Mother that Catherine had signed in 1960 (the Note). The Note was "for the principal sum of $10,000.00 payable six months after [Catherine's] death bearing interest at 6% per annum." It was secured by 210 shares of PNC stock. Virginia succeeded to the Note and its security following Mother's death. And at the time of Catherine's passing, the Note was worth $13,614.99. Because Catherine's estate did not possess sufficient funds to pay the Note, Mark petitioned the district court for authorization to convey Catherine's full "undivided one-half interest" in the Property's surface rights to Virginia in full satisfaction of the debt. This petition (the Petition) stated that in exchange for Catherine's interest in the Property's surface rights, Virginia agreed (1) to pay the estate the difference between the value of Catherine's interest in the Property and the amount owed Virginia on the Note, (2) to return the PNC stock that she had held as security on the Note, and (3) that the conveyance expressly excepted "one-half of all oil and gas and one-half of all other minerals contained in [the Property]." The Petition further indicated that "Virginia N. Price has accepted said offer made to her by [Mark]," and it also bore her signature. Apparently no one at the time questioned whether Catherine's one-half interest in the Property had already passed to Virginia, the surviving joint tenant, upon Catherine's death.

¶5 The court granted the Petition, authorizing Mark to convey Catherine's full interest in the Property's surface rights to Virginia while retaining a half-interest in all oil, gas, and mineral rights. Mark executed and recorded a deed reflecting the court's order in late 1966 (the 1966 Deed). In 1968, the court further ordered that the Property's income from "one-half of all oil and gas and one-half of all other minerals" be distributed to Mark as trustee of Catherine's testamentary trust. Katherine S. Hodkin and Virginia S. Anderson (collectively, Defendants) are Catherine's daughters and are the beneficiaries of Catherine's testamentary trust.

¶6 In the years following the 1966 transaction, Virginia made a number of payments to Catherine's trust reflecting its share of proceeds from oil and gas leases on the Property, which payments continued after her death in 1977. Upon her passing, Virginia's husband, Howard Price (Howard), succeeded to her interest in the Property. He later married Amy, who likewise succeeded to his interest in the Property following his death in 1982. There is evidence of Amy making intermittent payments to Defendants for Catherine's estate's portion of the proceeds on oil and gas leases on the Property after Howard's passing.

¶7 In 2013, forty-seven years after the 1966 transaction, Amy initiated the current action seeking to quiet title "in and to the surface and subsurface interests in the [Property]" and "seeking related declaratory and equitable relief." In her subsequent motion for summary judgment, Amy argued that because neither sister had severed the joint tenancy ownership of the Property prior to Catherine's death in 1966, Virginia took full title to the Property-including all mineral rights-by right of survivorship. As a result, "[Catherine]'s estate never received, and therefore could not make disposition of, any rights [in the Property]." And as Howard's successor in interest to the Property, who in turn succeeded to Virginia's original interest, Amy argued that the Property's full mineral rights belonged to her by operation of law. She argued that this defeated Defendants' claims of right, title, or interest in any portion of the Property's mineral rights.

¶8 Defendants opposed the motion for summary judgment on several grounds. Among other things, they argued that the 1966 transaction raised a genuine issue of material fact as to whether the joint tenancy created in 1945 had been severed prior to Catherine's passing in 1966. In support of this argument, Defendants relied on Virginia's and Mark's sophistication as well as their conduct following Catherine's death. Specifically, Virginia served as president and treasurer of PNC for more than two decades. At that time, "PNC was one of the largest cattle ranching operations in the Intermountain West, leasing and owning substantial acres of grazing land with cattle herds ... in Utah, in Arizona, and in various other locations." In addition to cattle ranching, PNC also leased oil and gas rights to major oil companies. Virginia was knowledgeable about real property transactions and, while she served as its president, PNC became one of the first companies to separate leases for tar sands from ordinary oil leases, thereby achieving additional revenue for PNC. Moreover, Mark was PNC's long-time attorney and grantor of one of the parcels of land that made up the Property. Defendants argued that a person possessing Virginia's business acumen and knowledge of real property transactions, or Mark's legal expertise, would have known that if the Property was owned in joint tenancy, full title would have passed to Virginia by operation of law following Catherine's death. And because both Virginia and Mark entered into the 1966 transaction under the apparent belief that Catherine's estate owned an "undivided one-half interest" in the Property, Defendants argued that they were entitled to the inference at the summary judgment stage that a severance of the Sisters' joint tenancy had somehow occurred prior to Catherine's death notwithstanding the lack of any documentation substantiating that theory.

¶9 Defendants also argued that even if the joint tenancy had not been severed, the 1966 transaction between Mark and Virginia was sufficient to operate as a conveyance of the Property's mineral rights to Catherine's estate. Additionally, they contended that Amy's suit to quiet title was barred by the doctrines of laches, estoppel, waiver, and res judicata given that Amy and her predecessors in interest had acted in accordance with the 1966 transaction for decades and because she and her predecessors waited 47 years, collectively, to file an action to quiet title.

¶10 The district court granted Amy's motion for summary judgment. The court concluded that because Defendants were unable to present direct evidence of severance of the joint tenancy, it was not severed as a matter of law and Catherine's entire one-half interest in the Property, including its mineral rights, passed to Virginia upon Catherine's death. The court stated that "evidence suggesting [Virginia] possessed strong business acumen in no way eliminates the possibility that she erred or had a lapse of memory" when she entered into the 1966 transaction. "The conclusion that [Virginia] believed in or intended a severance would be purely speculative ... [as well as] irrelevant without evidence of an act of severance." The court also rejected Defendants' argument that the 1966 transaction and subsequent decades of performance constituted a conveyance of the Property's mineral rights to Catherine's estate. It held that because Catherine's estate did not possess an interest in the Property with which to bargain, the 1966 transaction did not constitute a binding agreement due to a lack of consideration. It also declined to enforce the agreement on the ground that it was "just as likely" that Virginia was acting under a mistake of fact or law when she entered into the agreement. The court further stated that even if the agreement was enforceable, it did not require Virginia to transfer mineral rights to Catherine's estate. And finally, the court rejected Defendants' other arguments, including those based on estoppel, laches, waiver, and res judicata. Regarding Defendants' laches argument, the court stated that "Defendants [had] provided the Court with no evidence to suggest that [Virginia] or her assigns failed to pursue the action after becoming aware of the facts."

¶11 Following additional filings, the district court entered final judgment in favor of Amy, ordering Defendants to disgorge all proceeds they had received from the Property's mineral rights leases since July 15, 2008. Based on the stipulation of the parties, the amount was set at $18,000. Defendants appeal.

ISSUES AND STANDARDS OF REVIEW

¶12 On appeal, Defendants raise several issues that can be separated into two categories. First, they argue that Amy is barred from bringing the current action to quiet title after the passage of 47 years since the 1966 Deed was executed and recorded, and after the parties' decades-long performance in accordance with the 1966 transaction. In support of this argument, Defendants rely on the doctrines of estoppel, laches, waiver, and res judicata. Second, Defendants challenge the district court's grant of summary judgment in favor of Amy on the basis that Defendants had insufficient evidence to show that the Sisters' joint tenancy had been severed prior to Catherine's death. Among other things, they argue that, at the summary judgment stage, they were entitled to the reasonable inference that the Sisters' joint tenancy had been severed based on the sophistication of the parties who entered into the 1966 transaction and their behavior being consistent with recognition that a severance had occurred. Because we agree with Defendants that the district court improperly granted summary judgment to Amy in view of Defendants' laches defense and reverse on that basis, we limit our analysis to that issue and do not address Defendants' other arguments.

¶13 "The application of laches to a particular set of facts and circumstances presents a mixed question of law and fact," meaning "we review the trial court's conclusions of law for correctness and will disturb its findings of fact only if they are clearly erroneous." Veysey v. Nelson , 2017 UT App 77, ¶ 5, 397 P.3d 846 (quotation simplified).

ANALYSIS

¶14 The equitable doctrine of laches "is based upon the maxim that equity aids the vigilant and not those who slumber on their rights." Insight Assets, Inc. v. Farias , 2013 UT 47, ¶ 17, 321 P.3d 1021 (quotation simplified). "It is a negative equitable remedy which deprives one of some right or remedy to which he would otherwise be entitled, because his delay in seeking it has operated to the prejudice of another." Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne , 2012 UT 66, ¶ 37, 289 P.3d 502 (quotation simplified). Accordingly, to prevail on a defense of laches, a defendant must show that (1) the plaintiff-and, in appropriate cases, the plaintiff's predecessors-failed to diligently pursue its claim against the defendant and (2) the defendant was injured by the plaintiff's lack of diligence. See Insight Assets , 2013 UT 47, ¶ 19, 321 P.3d 1021 ; Horne , 2012 UT 66, ¶ 29, 289 P.3d 502.

¶15 The fact that a plaintiff presents a meritorious claim against a defendant does not preclude the application of the doctrine of laches. See Horne , 2012 UT 66, ¶ 37, 289 P.3d 502 (rejecting the argument that "a court's recognition of meritorious claims could defeat a laches defense" because such a conclusion "would be antithetical to the whole point of the doctrine of laches"). Furthermore, because "Utah has abolished any formal distinction between law and equity," "the doctrine of laches may apply in equity, whether or not a statute of limitation also applies and whether or not an applicable statute of limitation has been satisfied." Veysey v. Nelson , 2017 UT App 77, ¶ 7, 397 P.3d 846 (quotation simplified).

¶16 Utah courts have regularly considered the applicability of the doctrine of laches in cases concerning interests in real property. See, e.g. , Insight Assets , 2013 UT 47, ¶ 22, 321 P.3d 1021 (holding that laches barred a lender from asserting an interest in real property); Walker v. Walker , 17 Utah 2d 53, 404 P.2d 253, 257 (1965) (holding that laches did not prevent siblings from asserting an interest in real property against their brother because the siblings were not unreasonable in delaying suit until after the death of their mother); Gold Mountain Dev., L.L.C. v. Missouri Flat, Ltd. , 2005 UT App 276U, para. 8, 2005 WL 1405312 (considering defendant's laches argument in a quiet title action and holding that it did not apply because defendant failed to show a lack of diligence on the plaintiff's part). But see Sweeney Land Co. v. Kimball , 786 P.2d 760, 762 (Utah 1990) (holding that laches was inapplicable to an action asserting adverse possession because, in such cases, the court's focus should be on the actions of the adverse possessor); 74 C.J.S. Quieting Title § 55, at 51 (2002) ("Laches is also ordinarily not a bar to an action to quiet title based on a forged deed or a forged alteration."). Here, after the passage of 47 years, Amy brought a quiet title action seeking to set aside the 1966 transaction and void the 1966 Deed. The district court rejected Defendants' laches argument on the ground that "Defendants have provided the Court with no evidence to suggest that [Virginia] or her assigns failed to pursue the action after becoming aware of the facts."

¶17 We disagree. This disagreement will require us to also consider whether Defendants were prejudiced by Amy's delay.

I. Lack of Diligence

¶18 "The length of time that constitutes a lack of diligence depends on the circumstances of each case, because the propriety of refusing a claim is equally predicated upon the gravity of the prejudice suffered and the length of the delay." Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Lindberg , 2010 UT 51, ¶ 28, 238 P.3d 1054 (quotation simplified).

¶19 Amy recognizes "that the state of title to [the Property] was a matter of public record from 194[5] onward." But she argues that Defendants "have come forward with no indication that [Amy] delayed unreasonably after obtaining knowledge of her rights."

Amy essentially argues that a finding of a lack of diligence should be limited to a showing that a plaintiff unreasonably delayed after obtaining actual knowledge of a cause of action, rather than constructive knowledge. In support of this argument, Amy cites Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne , 2012 UT 66, 289 P.3d 502, which approvingly quoted a New Hampshire Supreme Court decision that stated, "Delay for an unreasonable length of time in bringing the suit after knowledge of the breach may be the basis for the equitable defense of laches." Id. ¶ 32 (emphasis added) (quoting Valhouli v. Coulouras , 101 N.H. 320, 142 A.2d 711, 713 (1958) ). However, the quoted language relied on by Amy is only a portion of the entire quote, which our Supreme Court cited in support of its holding that one of its prior cases should be read to mean that " 'harm to the plaintiff' is a factor that works with laches-not within it-to evaluate whether an injunction for restrictive covenant violations or the like is proper." Id. ¶ 31. In Horne , our Supreme Court was not presented with, nor did it address, the issue of whether the diligence prong of laches was limited to actual knowledge. Moreover, even if the language quoted by Amy were to have precedential value for the issue at hand, the language itself employed the broad term "knowledge" and did not distinguish between actual and constructive knowledge.

¶20 Utah courts have stated that constructive knowledge can trigger the due diligence prong of laches. See Leggroan v. Zion's Sav. Bank & Trust Co. , 120 Utah 93, 232 P.2d 746, 749-51 (1951) (holding that laches barred a trust beneficiary's suit against the trustee for an accounting of the trust assets because the beneficiary unreasonably delayed after obtaining "constructive notice of final distribution"); Nilson-Newey & Co. v. Utah Res. Int'l , 905 P.2d 312, 314-15 (Utah Ct. App. 1995) (holding that laches barred plaintiff's action for an accounting and distribution of profits because, in part, plaintiff unreasonably delayed in bringing suit and that although defendants did not formally repudiate their obligation to plaintiff until 1993, plaintiff had constructive knowledge of such repudiation because it knew of a transaction that occurred 25 years earlier from which it never received a distribution of profits). Furthermore, we see no reason why we should not consider constructive knowledge when a defendant raises the doctrine of laches as a defense to a quiet title action when constructive knowledge is otherwise pervasive in Utah property law, particularly in quiet title actions. See, e.g. , Allen v. Hall , 2005 UT App 23, ¶¶ 10-11, 107 P.3d 85 ("[Defendant] is deemed to have had notice of [plaintiff's] interest from the time of recording .... [Defendant's] notice of [plaintiff's] interest destroys any equitable ground upon which the court could quiet title in [defendant]."), aff'd in part, rev'd in part , 2006 UT 70, 148 P.3d 939. See also Utah Code Ann. § 57-3-102(1) (LexisNexis 2010) ("Each document [properly] executed, acknowledged, and certified ... shall, from the time of recording with the appropriate county recorder, impart notice to all persons of their contents.").

¶21 Here, the 1945 Deeds unambiguously stated that the Property was conveyed to the Sisters "as joint tenants and not as tenants in common, with full rights of survivorship," and, as part of the public record, the 1945 Deeds were readily available for review long before the 1966 transaction and recordation of the 1966 Deed. Amy succeeded to Virginia's interest in the Property in 1982, upon Howard's passing. But Amy did not bring the present quiet title action until 2013-31 years after she inherited the Property or an interest in it. Likewise, even assuming that Virginia and Mark entered into the 1966 transaction under the mistaken belief that the Sisters were granted the Property as tenants in common and not joint tenants, Amy and her predecessors in interest had constructive knowledge of this mistake for 47 years before Amy initiated the current action. As such, Amy and her predecessors certainly cannot be characterized as "vigilant." See Insight Assets, Inc. v. Farias , 2013 UT 47, ¶ 17, 321 P.3d 1021 ("Equity aids the vigilant and not those who slumber on their rights.") (quotation simplified). And because Amy has not identified a circumstance that would excuse the 47-year delay, that delay surely appears to be unreasonable. See Nilson-Newey , 905 P.2d at 315 (stating that the plaintiff's failure to act for 25 years after obtaining constructive knowledge was unreasonable "unless the delay [was] excused by some other circumstance").

¶22 Amy next argues that because "[Defendants] were on record, constructive notice-just as much as [she] was-as to who owned mineral rights in [the Property] and who did not," they were equally "derelict in failing to seek clarification by the court." Amy is correct that Defendants also had constructive notice of the Sisters' joint tenancy in the Property, at least initially, but Defendants did not have the same duty as Amy to bring a timely action to quiet title in the mineral rights. This is because

a property owner who has record notice of possible problems with the owner's title may, but is not required to, bring an action to eliminate those problems. When a property interest is actually repudiated or challenged, or an adverse claim is asserted against that interest, the property owner is obligated to act within a reasonable time to protect the owner's interests. In the face of such a challenge, an action unreasonably delayed is time barred, because to allow it would result in injury, prejudice or disadvantage to the party against whom the action is brought.

Association of Unit Owners of the Inn at Otter Crest v. Far West Fed. Bank , 120 Or.App. 125, 852 P.2d 218, 222 (1993) (quotation simplified). See 74 C.J.S. Quieting Title § 55, at 50 (2002) ("A plaintiff in possession under a claim of title is entitled to wait until possession is invaded or the title attacked before taking steps to vindicate it, and a mere lapse of time will not bar the action."). Cf. In re Hoopiiaina Trust , 2006 UT 53, ¶ 26, 144 P.3d 1129 (stating that "true" quiet title actions, which the Court defined as those "brought to quiet an existing title against an adverse or hostile claim of another," are "not subject to a statute of limitations") (emphasis in original) (quotation otherwise simplified).

¶23 Here, Defendants own half of the Property's mineral rights under color of title by virtue of the 1966 Deed. They have also long benefitted from their share of the mineral rights as they collected rents attributable to their portion of the mineral leases. For that reason, they were under no obligation to bring an action to quiet title before their interest in the mineral rights was actually challenged. So laches may be asserted against Amy, but it cannot be claimed against Defendants absent a showing that they unreasonably delayed after their interest was challenged, which showing Amy has not made.

¶24 For these reasons, it appears that Amy failed to exercise due diligence in asserting her interest in the other half of the Property's mineral rights because she and her predecessors unreasonably delayed by waiting 47 years to bring an action to quiet title.

II. Injury to Defendants

¶25 Once a defendant has established a lack of diligence on the part of the plaintiff, the defendant, to prevail on the laches defense, must show that the lack of diligence resulted in an injury to the defendant. See Insight Assets, Inc. v. Farias , 2013 UT 47, ¶ 19, 321 P.3d 1021. "[U]navailable or long-lost evidence and witnesses" have "long [been] recognized" as injuries that the doctrine of laches is intended to prevent. Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne , 2012 UT 66, ¶ 38, 289 P.3d 502. See Young v. Western Piling & Sheeting , 680 P.2d 394, 395 (Utah 1984) ; Leggroan v. Zion's Sav. Bank & Trust Co. , 120 Utah 93, 232 P.2d 746, 750 (1951) ; 12A C.J.S. Cancellation of Instruments § 112, at 582 (2004) ("Laches may be a defense where, by reason of the death of the participants or other important witnesses, weakened memories, or the loss or destruction of documents, proof has been lost so that the controversy cannot be determined without the danger of doing injustice.").

¶26 Here, Amy brought an action to quiet title in the Property's mineral rights, which action would require a determination that the 1966 Deed is void. She contends that because the Property was conveyed to the Sisters "as joint tenants and not as tenants in common," Virginia took title to the entire Property by right of survivorship upon Catherine's death. Defendants counter by arguing that based on the sophistication of the parties who entered into the 1966 transaction, it is reasonable to instead infer that a severance of the joint tenancy occurred sometime between 1945 and 1966.

¶27 A brief overview of joint tenancy is helpful to the current analysis. A joint tenancy is "[a] tenancy with two or more coowners who are not spouses on the date of acquisition and have identical interests in a property with the same right of possession." Joint Tenancy , Black's Law Dictionary 1694 (10th ed. 2014). It differs from a tenancy in common in that "each joint tenant has a right of survivorship to the other's share." Id. A severance of a joint tenancy has the effect of terminating the right of survivorship between the joint tenants. Crowther v. Mower , 876 P.2d 876, 879 (Utah Ct. App. 1994). "Either party to a joint tenancy may terminate it and the consent of the other tenants to the severance or termination is not required." Id. at 878 (quotation simplified). Prior to 1996, severance of a joint tenancy was achieved "by destroying one of the four unities essential to joint tenancy-time, title, interest, and possession." In re Estate of Knickerbocker , 912 P.2d 969, 974 (Utah 1996). If a joint tenant desired to terminate the joint tenancy without mortgaging or selling his interest to a third party, the joint tenant had to arrange a " 'strawman' transaction, in which he would convey his interest to a third party who would immediately convey it back to the grantor." Id. Because conveyances of a joint tenant's interest to a third party did not need to be recorded, Crowther , 876 P.2d at 878-79, it follows that such "strawman" transactions likewise did not require recordation, see Knickerbocker , 912 P.2d at 976 (recognizing the existence of unrecorded strawman transactions by noting that "a recorded strawman transaction ... is superior to an unrecorded one"). It was in 1996 that our Supreme Court issued Knickerbocker , in which it held that "it is the intent of the parties, not the destruction of one of the four unities, that should govern" the severance of joint tenancies. Id. at 975. It further dispensed with the requirement of "strawman" transactions in favor of recorded unilateral self-conveyances. Id. at 976 ("[A] joint tenant may effectively sever a joint tenancy by executing and recording a unilateral self-conveyance.") (emphasis added).

¶28 Undoubtedly referencing the "strawman" transactions that prior to 1996 were the sole means of severing a joint tenancy when it was not intended to actually transfer an interest in the property to a third party, the district court correctly noted that although "the conveyance that effectuates the severance need not be recorded, ... delivery of a deed severing the joint tenancy by transferring title must be proven." The court cited Crowther , 876 P.2d at 878, and Nelson v. Davis , 592 P.2d 594, 597 (Utah 1979), in support of its decision. And therein lies the prejudice Defendants have apparently suffered as a result of the lack of due diligence on the part of Amy and her predecessors in interest. Proof of whether a severance occurred has seemingly been lost to history. In the 47 years since the 1966 Deed was recorded, all parties who were involved in the 1966 transaction have died. Virginia passed in 1977, Mark in 1975, and Howard in 1982. And Mark's business records have likewise been lost. It is now impossible to determine whether Virginia and Mark entered into the 1966 transaction based on a mutual mistake about how the Property was actually titled or whether they did so knowing that the Sisters' joint tenancy had been severed through a "strawman" transaction, recordation of which was not required.

¶29 Because all known witnesses and evidence regarding a potential severance of the Sisters' joint tenancy have long since become unavailable, the injury prong of laches appears to be satisfied.

CONCLUSION

¶30 We hold that the district court improperly granted summary judgment in Amy's favor. The 1945 Deeds upon which Amy bases her claim that the entirety of the Property vested in Virginia upon Catherine's death were a matter of public record since the end of World War II, conferring upon Amy and her predecessors in interest constructive notice regarding the Sisters' initial joint tenancy in the Property. As such, Amy and her predecessors appear to have unreasonably delayed by waiting 47 years to challenge the 1966 Deed and transaction. And Defendants seemingly were injured by Amy's lack of diligence because all known witnesses to the Sisters' joint tenancy have long since died and any evidence of severance has been lost.

¶31 We accordingly reverse the summary judgment entered in favor of Amy and remand for further proceedings consistent with this opinion.

      As is our practice when parties share a last name, we sometimes refer to them by their first names, with no disrespect intended by the apparent informality.

      "In reviewing a district court's grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party and recite the facts accordingly." Ockey v. Club Jam , 2014 UT App 126, ¶ 2 n.2, 328 P.3d 880 (quotation simplified).

      We are unsure as to the correct spelling of Catherine's given name because documents within the record use various spellings. The 1945 Deeds, the key documents in this case, conveyed a joint tenancy interest in the Property to "Catherine" N. Story. Accordingly, we use that spelling in this opinion.

      The Petition describes the Property as consisting of three-not two-parcels of land in Duchesne County. The history of the third parcel is not apparent from the record, but neither party argues that Catherine's interest in that third parcel differed in any way from that of the remaining two parcels.

      Since the initiation of the current litigation, Virginia Anderson and Amy have passed. Their estates have been substituted in their place.

      The collective term "Defendants" also includes defendant Michael Hodkin. He is presumably the husband of Katherine S. Hodkin, but this is not clear from the record. The record and parties' briefing are also unclear as to the genesis of Michael Hodkin's claim to the Property's mineral rights and as to his relationship to his co-defendants and the Nutter family more generally.

      Because laches can apply even when an action's statute of limitations has been satisfied, we need not determine whether Amy's action constitutes a "true" quiet title action that is not subject to a statute of limitations. See In re Hoopiiaina Trust , 2006 UT 53, ¶¶ 26-27, 144 P.3d 1129.

      Utah's jurisprudence is consistent with that of other jurisdictions. See, e.g. , Villa Park Village v. Strickland , 60 Ill.App.3d 406, 17 Ill.Dec. 718, 376 N.E.2d 1047, 1048-49 (1978) (listing prior cases in which Illinois courts applied laches to bar quiet title actions); Knight v. Northpointe Bank , 300 Mich.App. 109, 832 N.W.2d 439, 444-45 (2013) (holding that laches barred the plaintiff from challenging whether the defendant, who had power of attorney for the original property owner, validly transferred land to herself); Johnson v. Estate of Shelton , 232 Mont. 85, 754 P.2d 828, 831 (1988) (holding that defendant's counterclaim to nullify the exchange of quitclaim deeds was barred by laches); Skaggs v. Conoco, Inc. , 1998-NMCA-061, ¶ 13, 125 N.M. 97, 957 P.2d 526 (holding that laches barred plaintiff's suit to quiet title to mineral leasehold); Robinson v. Estate of Harris , 391 S.C. 114, 705 S.E.2d 41, 44 (2011) (holding that laches barred plaintiffs' quiet title action where plaintiffs waited 60 years to challenge grantor's conveyance by deed).

      The record does not reveal the date or circumstances surrounding Amy's realization that the 1945 Deeds conveyed the Property to the Sisters "as joint tenants and not as tenants in common, with full rights of survivorship."

      Actual knowledge is "[d]irect and clear knowledge, as distinguished from constructive knowledge." Actual Knowledge , Black's Law Dictionary 1004 (10th ed. 2014). And constructive knowledge is "[k]nowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person." Constructive Knowledge , Black's Law Dictionary 1004 (10th ed. 2014) (emphasis added).

      In its entirety, the quoted language reads:
      "Delay for an unreasonable length of time in bringing the suit after knowledge of the breach may be the basis for the equitable defense of laches, particularly where a mandatory injunction is being sought. This is particularly so in view of the further finding that the relative hardship in granting relief to the plaintiffs was disproportionate to the benefit secured thereby. Thus a combination of laches and disproportion between harm and benefit may have the effect of causing the denial of an injunction when neither alone would have caused such denial."
      Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne , 2012 UT 66, ¶ 32, 289 P.3d 502 (quoting Valhouli v. Coulouras , 101 N.H. 320, 142 A.2d 711, 713 (1958) ).

      This change in the law also helps prevent future situations similar to those of the current case that arose from a possible unrecorded "strawman" transaction.


source: Caselaw Access Project

author: KAUGER, J.

license: Public Domain

text:
    2002 OK 24
    Ricky JOHNSON, Plaintiff/Appellee, v. FORD MOTOR COMPANY, Defendant/Appellant.
    No. 95,873.
    Supreme Court of Oklahoma.
    April 2, 2002.

      James D. Sill, Mary A. Black, James C. Winterringer, Shawnee, OK, Richard L. Den-ney, Lydia J. Barrett, Norman, Oklahoma, Brent D. Berry, Oklahoma City, OK, for Plaintiff/Appellee.
    A. Thomas Elder, Jr., Curtis L. Smith, Oklahoma City, OK, George E. Wolf, Paul A. Williams, Kansas City, MO, Craig A. Morgan, Austin, TX, for Appellant.
   KAUGER, J.

11 This cause concerns manufacturers' products liability as it relates to automobile accidents in which the alleged defective product did not cause the accident to occur, but allegedly caused injuries after the initial impact. This theory of recovery is commonly known as the "second impact injury" or "second collision doctrine". Three issues are addressed:") whether the trial court's omission of a jury instruction regarding enhanced injuries resulting from the alleged defect is grounds for reversal; 2) whether the evidence was sufficient to support the jury verdict; and 83) whether the calculation of pre-judgment interest should have commenced from the date the amended petition was filed and the defendant was served or from the date the cause was filed. Under the facts presented, we hold that: 1) the omission of the manufacturer's requested instruction relating to enhanced injuries does not require reversal; 2) the plaintiffs evi-denee that the seat belt and restraint system caused his permanent brain injury was suffi-clent to support the jury verdict; and 3) prejudgment interest commenced from the date the cause was filed.

FACTS

12 On June 16, 1997, the appellee, nineteen-year-old Ricky Johnson (Johnson) apparently lost control of his 1988 Ford Ranger pickup truck while driving on a country road near his home in Tecumseh, Oklahoma. The pickup went off of the right side of the road, swerved to the left side of the road, flew off the road and the edge of a creek bank, smashed into an embankment, and landed at the bottom of the creek bed on its passenger's side. Johnson has no recollection of the accident.

During the accident, Johnson's seat belt webbing tore apart at the latch plate and he landed against the passenger-side door. Johnson sustained a broken pelvis, broken left arm, broken bone in his spine, ruptured bladder and a severe head injury with bruising and hemorrhaging in the brain. As a result of the brain injury, Johnson has permanent physical impairment and a reduction in his mental functioning.

T4 On August 6, 1998, Johnson's parents initiated a suit against the manufacturer of the pickup, Ford Motor Company (Ford). They sought to recover compensatory and punitive damages resulting from Johnson's injuries. They alleged that: 1) Johnson suffered severe and disabling injuries because his seat belt failed during the accident; 2) the pickup's seat belt system was defective and unreasonably dangerous; and 3) Ford wilfally disregarded public safety in its design and manufacture of the vehicle, and that it was grossly negligent in its testing and warnings to consumers.

15 Ford defended, denying that the seat belt was defective, or that it was the cause of Johnson's injuries. A jury returned a verdict in favor of Johnson for $5,000,000.00. On October 6, 2000, the trial court entered a journal entry of judgment on the jury verdict and awarded pre-judgment interest. On October 16, 2000, Ford filed a motion for judgment notwithstanding the verdiet/motion for new trial, arguing that: 1) the trial court improperly refused to allow its requested jury instructions regarding enhanced injuries allegedly caused by the defect; 2) Johnson's evidence was insufficient to support the jury verdict; and 8) the calculation of pre-judgment interest should not have begun until the amended petition was filed and Ford was served. The trial court overruled both of Ford's motions on January 12, 2001. Ford appealed on February 16, 2001, and filed a motion for oral argument and a motion to retain the cause in this Court. On September 21, 2001, we retained the cause and briefing was completed on October 22, 2001.

T6 I.

UNDER THE FACTS PRESENTED, THE OMISSION OF THE MANUFACTURER'S REQUESTED INSTRUCTION RELATING TO ENHANCED INJURIES DOES NOT REQUIRE REVERSAL.

T7 This cause involves a single-car accident, and it is undisputed that the failure of the seat belt and restraint system were not the cause of the accident. Ford asserts that the trial court committed reversible error when it neglected to specifically instruct the jury that if it determined that the seat belt and restraint system were defective, then Johnson could only recover damages for the portions of his injury which were enhanced because the seat belt separated.

18 Johnson argues that; 1) the evidence presented at trial showed that, regardless of why Johnson's vehicle left the road, Johnson would not have suffered any permanent disabling brain injury if the defective seat belt had not failed; 2) Ford's proposed jury instruction was unnecessary and it would have mislead the jury because Johnson's brain damage was not merely "enhanced" by the defect, it was caused by the defect; and 3) the jury instructions which were given properly reflected Oklahoma products liability law. Both parties rely upon Lee v. Volkswagen of America, Inc., 1984 OK 48, 688 P.2d 1288 in support of their arguments.

19 In giving instructions, the trial court is not required to frame issues, but it must state the law correctly. Instructions are explanations of the law of a case which enable a jury to understand its duty and to arrive at a correct conclusion. The instructions need not be ideal, but they must reflect the Oklahoma law regarding the subject at issue.

110 Oklahoma adopted the theory of manufacturers' products liability in Kirkland v. General Motors Corp., 1974 OK 52, 521 P.2d 1353. Kirkland teaches that one who sells a product in a defective condition, which is unreasonably dangerous to the user or consumer, is strictly liable for the physical harm to the person or property caused by the defect. In Kirkland, we recognized that the burden of proof regarding causation was on the plaintiff and that a defense to a products liability action was that the defect did not cause the injury.

¶11 Ten years later, in Lee v. Volkswagen of America, Inc., 1984 OK 48, 688 P.2d 1283, we determined that a manufacturer is liable for the damages caused by a defect even if the defect may not have caused the accident-if the defect caused an injury or increased the severity of the injury sustained as a result of the first impact. In Leg, the plaintiff's car collided with another vehicle. After the initial impact, the plaintiff was thrown from the car and sustained a cervical fracture which rendered him quadriplegic. Lee brought a negligence action against the driver of the other vehicle and a manufacturers' products liability action against Volkswagen. The application of products liability was based on the contention that a defective door latch caused the plaintiff's cervical fracture by allowing the door to come open, causing the plaintiff to be thrown from the car. The jury rendered a verdict in favor of the plaintiff and against both defendants. Volkswagen appealed, arguing that the plaintiff did not offer sufficient proof of causation to submit the cause to the jury.

112 On appeal we affirmed, recognizing that a manufacturer should be liable for damages if the plaintiff can prove that he or she suffered injuries as a result of the defect or "second impact" in addition to those suffered as a result of the latent defect. Regarding the plaintiff's burden to prove causation, we held that: 1) the plaintiff was required to prove by a preponderance of the evidence that the product was in a defective condition which was unreasonably dangerous as defined by ordinary expectations when it left control of the manufacturer; and 2) after the original, initial impact the defect caused an injury or enhanced injuries.

113 Rather than require the plaintiff to prove precisely and exactly those injuries which are attributable to the accident and those which are attributable to the alleged design defect, we determined that; 1) the plaintiff should be required to prove by a preponderance of the evidence the extent of the enhanced injuries resulting from the defect; and 2) the manufacturer is liable for damages only for injuries which resulted from the defect. We also noted that when injuries are sustained which are separate and divisible, the burden of proof remains on the plaintiff including the burden of proving "enhancement". In other words, the plaintiff must offer sufficient proof to prove which of the injuries are attributable to the manufacturer's defective product and the degree of "enhancement" occasioned by the product as distinguished from the injuries flowing from a third party's acts of negligence.

¶14 However, we also recognized that when the principal injury complained of is single and indivisible and therefore incapable of apportionment, there can be no "enhancement." Accordingly, under this theory, the plaintiff has the burden of presenting sufficient evidence to prove to the jury that each defendant's act was a contributing factor in producing the plaintiff's injuries. Once the plaintiff meets this burden, the burden of proving that the plaintiff's injury was either the result of a third party's negligence or only in part attributable to the manufacturer's defective product shifts to the manufacturer. Under these cireumstances, the relationship of the manufacturer and the third party are concurrent tortfeasors in the sense that their independent acts combine to cause a single injury. Should the plaintiff's injuries be indivisible, the defendants are held jointly and severally liable as concurrent tortfeasors for plaintiffs total damage. If reasonable minds could differ on whether the plaintiff's injuries are divisible, the trier of fact determines whether the injury can be reasonably apportioned among the defendants and the extent of each defendant's liability.

115 Although Lee involved a third party who caused the accident, we hold that its rationale applies regardless of whether the initial accident is caused by the plaintiff. In the present cause, Johnson sustained several injuries as a result of the accident. Nevertheless, a review of the record reveals that Johnson postulated his claim for damages on the principal brain injury, as a single and indivisible injury which rendered him permanently impaired. Johnson did not assert that his brain damage was "enhanced" by the defect or made worse than it would have been absent the defect. Rather, Johnson's theory at trial was that if the seat belt and restraint system had not been defective and had not failed, he would not have suffered the serious, permanent injury at all. He offered testimony that the seat belt and restraint system were defective; that there were other safer seat belts and restraint systems available which operated in a safer manner; and that he would not have suffered the permanent brain damage if the seat belt had not failed. Ford offered contrary testimony to show that: 1) the seat belt was not defective; 2) because of the severity of the accident, the seat belt would have broken regardless of whether it was defective; and 3) Johnson would have suffered the same injuries even if the seat belt had not broken.

116 When reviewing jury instructions, the standard of review requires the consideration of the accuracy of the statement of law as well as the applicability of the instructions to the issues. The instructions are considered as a whole. When the trial court submits a case to the jury under proper instructions on its fundamental issues and a judgment within the issues and supported by competent evidence is rendered in accord with the verdict, the judgment will not be reversed for refusal to give additional or more detailed instructions requested by the losing party, if it does not appear probable that the refusal has resulted in a miscarriage of justice or substantial violation of constitutional or statutory rights. A judgment will not be disturbed because of allegedly erroneous instructions, unless it appears reasonably certain that the jury was misled thereby. The test of reversible error in instructions is whether the jury was misled to the extent of rendering a different verdiet than it would have rendered, if the alleged errors had not occurred.

117 With regard to causation, the omission of Ford's proposed instruction did not cause an entire absence of instructional support for Ford's causation defense. The jury was given two causation instructions, One informed the jury that the plaintiffs personal injuries must have been directly caused by the defect in the truck and its seat belt system. The other instruction defined direct cause. The instructions which were given, as applied to the evidence and issues presented, generally encompassed Ford's causation theory and did not foreclose a defense verdict on that theory. Additionally, Ford's theory, that the force of the collision was the cause of Johnson's injuries, was obvious throughout the trial. Having considered the instructions given, the evidence, and the issues raised, and the instruction requested, we conclude that the instructions given substantially covered the issues and that the applicable law was adequately and fairly explained to the jury. Nothing in the record indicates that the jury itself was confused on the issue or that its deliberations were affected. The general causation instruction allowed Ford to escape liability had Johnson's brain injury occurred regardless of any de-feet. Consequently, the omission of the requested instruction does not constitute reversible error under the facts presented.

IL.

{18 THE PLAINTIFF'S EVIDENCE WAS SUFFICIENT TO SUPPORT A JURY DETERMINATION THAT THE FAILURE OF THE SEAT BELT AND RESTRAINT SYSTEM CAUSED HIS INJURIES.

119 Ford also argues that the jury verdict cannot be allowed to stand because Johnson's evidence was insufficient to support a jury determination that the failure of the seat belt and restraint system caused his injuries. Ford insists that Johnson offered no proof that, under the immense forces of the accident, the seat belt and restraint system would not have failed even if the seat belt and restraint system were not defective. Johnson argues that he offered sufficient evidence to meet his general burden of proof and to support the jury verdict.

¶20 Again, Lee v. Volkswagen of America, Inc., 1984 OK 48, 688 P.2d 12838, is dispositive of Ford's argument. Pursuant to Leg, Johnson had the general burden of proving by a preponderance of the evidence that the product was in a defective condition which was unreasonably dangerous as defined by ordinary expectations when it left control of the manufacturer; and that after the original, initial impact the defect caused his injury. Johnson, like the plaintiff in Lege sought damages for a principal injury which was indivisible. In Lee, the plaintiff offered sufficient evidence to meet his general burden of proof by offering testimony that: 1) his injury was caused by the defective door lateh's failure to operate and his subsequent contact with the road; 2) the injuries more likely than not occurred as a result of the collision with the ground; and 3) there were other door latches available that operated in a safer manner.

121 A review of the record reveals that Johnson met the causation burden required by Lee. Johnson presented evidence showing that: he suffered permanent, critical brain injuries because the sharp edge of the seat belt latch plate, which was installed by Ford in its pickup truck, sliced through and severed the belt webbing during the collision, and that Ford knew of the dangers posed by the sharp edges of its restraint system. He presented testimony that the latch plate was defective; the seat belt was cut by the latch plate; that his injury was caused by the seat belt's failure; that he would not have sustained the permanent disabling injury had his seat belt remained intact; and that other, safer seat belt and restraint systems were available. Onee Johnson met this burden, the burden of proving that Johnson's injury was attributable to the accident and not attributable to the manufacturer's defective product shifted to Ford. Ford attempted to prove this by providing testimony in support of its theory that forces of the collision were responsible for the seat belt failure, regardless of any defect. In an appeal from a case tried and decided by a jury an appellate court's duty is not to weigh the evidence and determine which side produced evidence of greater weight, that job is reposed in the jury.

HL

122 UNDER THE FACTS PRESENTED, PRE-JUDGMENT INTEREST COMMENCED FROM THE DATE THE CAUSE WAS FILED.

123 Ford argues that the trial court erred in awarding Johnson pre-judgment interest commencing from August 6, 1998, the date the initial petition was filed, rather than from January 21, 1999, the day the summons was mailed to Ford. Ford relies on Parker v. O'Rion Industries, Inc., 769 F.2d 647 (10th Cir.1985) in support of the proposition that it would be improper to hold it liable for prejudgment interest during a delay that was entirely beyond its control. Johnson contends that pre-judgment interest is calculated from the date the petition was filed; and that Parker is distinguishable on its facts.

124 Pre-judgment interest is only awarded if authorized by statute. Heiman v. Atlantic Richfield Co., 1995 OK 19, 1 14, 891 P.2d 1252; Withrow v. Red Eagle Oil Co., 1988 OK 16, ¶10, 755 P.2d 622; Sisney v. Smalley, 1984 OK 70, ¶8, 690 P.2d 1048. Title 12 O.S. Supp.1998-727 authorizes prejudgment interest in an action for personal injuries from the date the suit was commenced. Title 12 O.S.1991-2008 provides that an action is commenced upon the filing of the petition. The petition was filed in the district court on August 6, 1998. In Parker, the Tenth Cireuit Court of Appeals considered the application of § 727 to a lawsuit which was delayed by the plaintiff who filed a suit in federal court after a prior state court suit was filed.

125 Parker involved a plaintiff who filed suit in Oklahoma state court and subsequently initiated a suit in federal court, ceasing to pursue its state court action. After the jury rendered a verdict in favor of the plaintiff, she sought pre-judgment interest commene-ing from the date of the filing of her state court action. The district court granted the plaintiff's request and on appeal, the Tenth Circuit reversed and remanded. It held that pre-judgment interest should have run only from the date on which the plaintiff filed her action in federal court, and that any delays resulting from the change in courts were the plaintiff's responsibility.

126 Parker is clearly distinguishable from the present cause on its facts. The Parker plaintiff filed one cause in state court, ceased to pursue it, and then filed another independent suit in federal court. The judgment awarding the plaintiff damages arose from the second suit. Here, there is only one lawsuit and any delays that occurred did not result from plaintiff's change of courts. Even if Parker were not distinguishable, on matters of state law we are not restrained by federal cases, but look first to our own decisions for authority. Federal court decisions are not binding or controlling upon this Court when construing Oklahoma law.

127 The record does not disclose why service was not accomplished earlier than January of 1999. Nevertheless, service of process is always timely if made within 180 days after the petition is filed. The petition was filed on August 6, 1998, and service was mailed on January 21, 1999, and received on January 22, 1999. Service was timely made within 180 days after the petition was filed. The purpose of pre-judgment interest is to provide full compensation for the loss of use of money due as damages from the time the claim acerues until judgment is entered. Under the facts presented, we are not convinced that the trial court's award of prejudgment interest commencing from the date the cause was initially filed was erroneous.

CONCLUSION

¶28 A judgment will not be disturbed because of allegedly erroneous instructions, unless it appears reasonably certain that the jury was misled thereby. The test of reversible error in instructions is whether the jury was misled to the extent of rendering a different verdict than it would have rendered, if the alleged errors had not occurred. Nothing in the record indicates that the jury was confused or that its deliberations were affected. The instructions which were given, as applied to the evidence and issues presented, generally encompassed Ford's causation theory and did not foreclose a defense verdict on that theory. Accordingly, omission of the instruction does not constitute reversible error under the facts presented.

A review of the record reveals that the appellee met the causation burden required by Lee v. Volkswagen of America, Inc., 1984 OK 48, 688 P.2d 1283. The plaintiff presented sufficient evidence to support a jury determination that the failure of the seat belt and the restraint system caused his injuries. Additionally, because service was timely made after the petition was filed and the purpose of pre-judgment interest is to provide full compensation for the loss of use of money due as damages from the time the claim accrues until judgment is entered, the trial court's award of pre-judgment interest commencing from the date the cause was initially filed was not erroneous.

MOTION FOR ORAL ARGUMENT DENIED; AFFIRMED.

30 HARGRAVE, C.J., WATT, V.C.J, HODGES, LAVENDER, SUMMERS, JJ., concur.

1381 OPALA, J., concurs in part; dissents in part.

132 BOUDREAU, WINCHESTER, JJ., dissent.

      . Lee v. Volkswagen of America, Inc., 1984 OK 48, ¶11, 688 P.2d 1283. The term "second collision" usually refers to the collision between a passenger and an interior part of the vehicle following an impact or collision. Caiazzo v. Volkswagenwerk, 647 F.2d 241, n. 2 (2nd Cir. 1981).

      . Ford asserts nine separate points of error in its petition in error. Nevertheless, it succinctly briefed the three issues which are addressed. To the extent that each of its allegations of error were not contained within the arguments in its brief, they are waived. Parties waive issues by failing to brief them. Burrows v. Burrows, 1994 OK 129, ¶3, 886 P.2d 984; American First Abstract Co. v. Western Info. Syst., Inc., 1987 OK 24, 111, 735 P.2d 1187.

      . Although Johnson's parents initiated the lawsuit as parents and next friend of Ricky Johnson, the trial court subsequently aligned the parties to leave the only plaintiff, Ricky Johnson. It determined that, although Johnson was incompetent when the lawsuit was filed because of his comatose condition, he was no longer incompetent.

      . Johnson's parents also named Townsend Motors, LLC., as a distributor of the vehicle and Breed Technologies, Allied Signal, Inc., and TRW Safety Systems, Inc. as the manufacturers of the seat belt which was placed in the vehicle. However, prior to trial, claims against Townsend, Breed, and Allied were dismissed and the claim against TRW was apparently settled prior to the jury's verdict.

      . The Johnsons also asserted a negligence claim against Ford alleging negligent design and manufacture of the vehicle and failure to use due care in testing the vehicle and its restraint system. However, the claim was subsequently dismissed.

      . The jury rendered a verdict for $5,000,000.00 and the trial court, giving credit of $150,000.00 for a prior settlement, entered judgment against Ford in the amount of $4,850,000.00, plus prejudgment interest of $893,654.00. The court also awarded post-judgement interest to accrue from the date of the verdict until paid.

      . Ford's proposed jury instruction No. 22 provides:
      "If you determine the issue of liability in favor of Plaintiff and against Ford, you are instructed that Plaintiff can recover damages only for enhanced injuries attributable to the separation in the seat belt in the vehicle. In other words, you are instructed that Ford is not responsible for Ricky Johnson's injuries which would have resulted had the restraint system not separated."

      . On appeal, for the first time, Johnson complains that Ford did not properly preserve its objection to the omission of its proposed instruction number 22. After the jury retired to deliberate and the judge left the courtroom, both parties made a record of their objections to the jury instructions which were previously made in chambers prior to the giving of the instructions. Ford specifically objected to several instructions by number, but did not specifically refer to 22 by number. Ford also objected to the trial court's refusal to give any of its offered, but refused instructions. It also specifically referred to the omission of its proposed instruction number 22 in its motion for new trial and Johnson responded to Ford's arguments, but Johnson did not complain that Ford failed to preserve its objection to the omission of the jury instruction. Title 12 0.$.1991-578 sets forth the procedures for preserving objections for appeal. Section 578 provides:
      "A party excepting to the giving of instructions, or the refusal thereof, shall not be required to file a formal bill of exceptions; but it shall be sufficient to make objection thereto by dictating into the record in open court, out of the hearing of the jury, after the reading of all instructions, the number of the particular instruction that was requested, refused and is excepted to, or the number of the particular instruction given by the court that is excepted to. Provided, further, that the court shall furnish copies of the instructions to the plaintiff and defendant prior to the time said instructions are given by the court."
      We have previously recognized that the statutory requirements for preserving objections are mandatory. Sellars v. McCullough, 1989 OK 155, ¶ 6, 784 P.2d 1060. However, this cause is similar to Cantrell v. Henthorn, 1981 OK 15, ¶4, 624 P.2d 1056, in which the plaintiff had requested an instruction and the record reflected that the trial court understood that the plaintiff's counsel was objecting to the refusal even though plaintiff's counsel did not specifically dictate the objection into the record. We determined that the plaintiff's counsel clearly provided the trial court with an opportunity to correct any errors in the instructions, by providing requested instructions. While Ford may not have followed the precise procedure outlined in the statute, it did take adequate steps to apprise the court of its objections, giving the court ample opportunity to correct any mistakes. Consequently, the objections were properly preserved.

      . Mosley v. Truckstops Corp. of America, 1993 OK 79, ¶9, 891 P.2d 577; Smicklas v. Spitz, 1992 OK 145, ¶11, 846 P.2d 362; Sellars v. McCullough, see note 8, supra at 1 9.

      . Mosley v. Truckstops Corp. of America, see note 9, supra; Smicklas v. Spitz, see note 9, supra.

      . Mosley v. Truckstops Corp. of America, see note 9, supra; Dutsch v. Sea Ray Boats, Inc., 1992 OK 155, ¶ 7, 845 P.2d 187.

      . To maintain a cause of action under manufacturers' products liability, the plaintiff must prove the product was the cause of the injury, that the product was defective when it left the control of the manufacturer, and that the defect made the product unreasonably dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it. Hutchins v. Silicone Specialties, Inc., 1993 OK 70, ¶14, 881 P.2d 64; Dutsch v. Sea Ray Boats, Inc., see note 11, supra at 111; Woods v. Fruehauf Trailer Corp., 1988 OK 105, ¶10, 765 P.2d 770; Kirkland v. General Motors Corp., 1974 OK 52, 129-31, 521 P.2d 1353.

      . A catastrophic brain injury like death or quadriplegia is considered indivisible by nature. See, e.g., Stecher v. Ford Motor Co., 779 A.2d 491, 493 (Pa.Super.2001).

      . Mosley v. Truckstops Corp. of America, see note 9, supra; Cimarron Feeders v. Tri-County Elec. Coop., Inc., 1991 OK 104, 16, 818 P.2d 901; Messler v. Simmons Gun Specialties, Inc., 1984 OK 35, 125, 687 P.2d 121.

      . Messler v. Simmons Gun Specialties, Inc., see note 14, supra; Knight v. Estes, 1963 OK 169, ¶14, 383 P.2d 879; Title 20 O.S.1991-3001.1 provides:
      "No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right."
      See also, Three "M" Investments, Inc. v. Ahrend Co., 1992 OK 33, ¶28, 827 P.2d 1324 (No error occurs if court refuses to give requested instructions if matters in requested instructions are covered by given instructions.) Linn v. Barnett's Inc., 1972 OK 148, 130, 503 P.2d 1276 (Refusal to give requested instructions did not constitute error where matters set forth in the requested instructions were covered by other instructions given by the trial court.).

      . Lee v. Volkswagen of America, Inc., see note 1, supra; Fields v. Volkswagen of America, Inc., 1976 OK 106, ¶30, 555 P.2d 48.

      . Woodall v. Chandler Material Co., 1986 OK 4, ¶13, 716 P.2d 652; Cimarron Feeders v. Tri-County Elec. Coop., Inc., see note 14, supra; Lee v. Volkswagen of America, Inc., see note 1, supra; Missouri-Kansas-Texas Railroad Co. v. Harper, 1970 OK 77, ¶ 15, 468 P.2d 1014.

      . Instruction No. 7 provides:
      "MANUFACTURERS'/PRODUCTS LIABILITY-ELEMENTS
      A party claiming damages under Manufacturers' Products Liability has the burden of proving each of the following:
      1. Defendant manufactured and/or sold the truck with its seat belt system.
      2. Defendant was in the business of manufacturing and/or selling such products;
      3. The truck and its seat belt system was defective and because of the defect, the truck and its seat belt system was unreasonably dangerous to a person who uses, consumes, or might be reasonably expected to be affected by the truck and its seat belt system.
      4. The truck and its seat belt system was defective at the time it was manufactured and/or sold by Defendant or left its control;
      5. Plaintiff was a person who used, consumed, or could have reasonably been affected by the truck and its seat belt system;
      6. Plaintiff sustained personal injuries directly caused by the defect in the truck and its seat belt system."

      . Instruction Number 10 provides:
      "DIRECT CAUSE-DEFINITION
      Direct cause means a cause which, in a natural and continuous sequence, produces injury and without which the injury would not have happened. For a defect in a product to be a direct cause it is necessary that some injury to a person in Plaintiff's situation must have been a reasonably foreseeable result of the defect.
      There may be more than one direct cause of an injury. When an injury is the result of a defect in a product as well as the conduct of another person, both the defect and the conduct of the other person are direct causes of the injury regardless of the extent to which each contributed to the injury."

      . Accord, Woodall v. Chandler Material Co., see note 17, supra, where the jury's question to the trial court indicated that it was confused.

      . Ford insists that because the jury was not properly instructed, it could have found it liable for injuries which were not caused by the defect. In Kirkland v. General Motors, see note 12, supra, we noted that comparative negligence was inapplicable to strict liability and we refused to apply contributory negligence in a strict sense. Rather, we said that causation is the defense and if some act of the plaintiff caused the injury, rather than the defective product, causation is missing and the plaintiff cannot recover. The concept of "enhanced injury" effectively apportions fault on a comparative basis because the defendant is liable only for the increased injury caused by its own conduct and not for the injury resulting from the crash itself. The problem with "second collision" cases is when an indivisible injury occurs and the cause of the accident is not a third party, but the plaintiff. Under the rationale of Lee v. Volkswagen of America, Inc., see note 1, supra, when an indivisible injury occurs, the burden shifts to the manufacturer to show the extent of enhancement. If the manufacturer is unable to make such a showing, it becomes responsible for all of the plaintiff's injuries. Under the facts presented, Ford's theory was that all of Johnson's injuries were caused by the force of the collision and that none of the injuries were attributable to the failure of the seat belt. Had the jury determined that Ford's theory was correct, under the instructions which were given, it could have refused to award any damages to Johnson, but it did not.

      . Failure of the trial court to instruct that the burden shifted to Ford can not be argued by Ford as the basis of error. Lee v. Volkswagen of America, Inc., see note 1, supra, at 1 32.

      . Florafax International, Inc., v. GTE Market Resources, Inc., 1997 OK 7, ¶3, 933 P.2d 282; McCoy v. Oklahoma Farm Bureau Mut. Ins. Co., 1992 OK 43, ¶ 10, 841 P.2d 568.

      . Title 12 0.S. Supp.1998-727 provides in pertinent part:
      "A. Except as otherwise provided by this section, all judgments of courts of record shall bear interest at a rate prescribed pursuant to subsection I of this section.

      E. Except as provided by subsection F of this section, if a verdict for damages by reason of personal injuries or injury to personal rights including, but not limited to, injury resulting from bodily restraint, personal insult, defamation, invasion of privacy, injury to personal relations, or detriment due to an act or omission of another is accepted by the trial court, the court in rendering judgment shall add interest on said verdict at a rate prescribed pursuant to subsection I of this section from the date the suit resulting in the judgment was commenced to the date of the verdict. ..." (Emphasis supplied.)
      The statute was amended in 1999. The current version of the statute provides that interest will begin from the date the suit was commenced to "the earlier of the date the verdict is accepted by the trial court as expressly stated in the judgment, or the date the judgment is filed with the court clerk." Title 12 0.8. Supp.1999-727.
      We note that some states specifically allow for prejudgment interest to begin accruing from the day process is served on the defendant. See, le., Alaska Stat. § 09.30.070 (2001); NM. Stat. Ann. § 56-8-4 (2001)

      . Title 12 O.S.1991-2003 provides:
      "A civil action is commenced by filing a petition with the court."
      The current version of the statute remains unchanged.

      . Majors v. Good, 1992 OK 76, ¶7, 832 P.2d 420.

      . Ingram v. Oneok, Inc., 1989 OK 82, ¶17, 775 P.2d 810; See also, Holloway v. Hopper, 1993 OK 56, 15, 852 P.2d 711 [Interpretation given to federal statute by federal courts is not binding on Oklahoma Supreme Court's construction of similar provision in the Oklahoma Code of Judicial Conduct.]; State v. Tolle, 1997 OK CR 52, 15, 945 P.2d 503 [Decisions by federal court on pure question of state law is not binding on state courts.].

      . Fischer v. Baptist Health Care of Oklahoma, 2000 OK 91, ¶6, 14 P.3d 1292. Title 12 O.S. Supp.1996 2004 provides in pertinent part:
      "I, SUMMONS: TIME LIMIT FOR SERVICE. If service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff cannot show good cause why such service was not made within that period, the action may be dismissed as to that defendant without prejudice ..."
      The current version of the pertinent portions of the statute remain unchanged.

      . Withrow v. Red Eagle Oil Co., 1988 OK 16, ¶10, 755 P2d 622. See also, McDonald v. Schreiner, 2001 OK. 58, 17, 28 P.3d 574.

      . Lee v. Volkswagen of America, Inc., see note 1, supra; Fields v. Volkswagen of America, Inc., see note 16, supra.

      . Woodall v. Chandler Material Co., see note 17, supra; Cimarron Feeders v. Tri-County Elec. Coop., Inc., see note 17, supra; Lee v. Volkswagen of America, Inc., see note 1, supra at ¶34; Missouri-Kansas-Texas Railroad Co. v. Harper, see note 17, supra.


author: JOHNSON, Vice Presiding Judge. LUMPKIN, Presiding Judge:

text:
    2002 OK CR 8
    Ray Lamont HUBBARD, Appellant, v. STATE of Oklahoma, Appellee. and Troy Don Cape, Petitioner, v. State of Oklahoma, Respondent.
    Nos. F-2000-638, F-2000-194.
    Court of Criminal Appeals of Oklahoma.
    Feb. 21, 2002.

      Gerald Gibbs, Broken Bow, OK, Attorney for Defendant Hubbard, at trial.
    Joe Watkins, Assistant District Attorney, Choctaw County Courthouse, Hugo, OK, Attorney for the State, at trial.
    Kenneth E. Adair, Norman, OK, Attorney for Defendant Cape, at trial.
    Jonathan Nichols, Assistant District Attorney, Cleveland County Courthouse, Norman, OK, Attorney for the State, at trial.
    Cindy Brown Danner, Chief, General Appeals, Indigent Defense System, Norman, OK, Attorney for Appellant Hubbard, on appeal.
    W.A. Drew Edmondson, Attorney General, Kellye Bates, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.
    Katrina Conrad-Legler, Indigent Defense System, Norman, OK, Attorney for Appellant Cape, on appeal.
    W.A. Drew Edmondson, Attorney General, Sandra D. Howard, Assistant Attorney General, Oklahoma City, Ok, Attorneys for Ap-pellee on appeal.
   SUMMARY OPINION

JOHNSON, Vice Presiding Judge.

T1 Due to the similarity of the issues raised, we have consolidated these cases to address (1) whether the district courts' assessments of incarceration costs were arbitrary and capricious, and (2) whether the assessment of incarceration costs violates an indigent defendant's right to equal protection and due process, as guaranteed by the Fourteenth Amendment.

I. Hubbard v. State, F-2000-638

{2 Ray Lamont Hubbard was tried by a jury in Choctaw County District Court, Case No. CF-1999-85, for Murder in the Second Degree, in violation of 21 0.8.1991, § 701.8. The Honorable Willard Driesel, District Judge, presided at trial. The jury found Hubbard guilty of the lesser offense of Manslaughter in the First Degree, and set punishment at four years imprisonment. On May 2, 2000, the district court sentenced Hubbard in accordance with the jury's verdict. The court also ordered Hubbard to pay court costs of $2,193.88, $250.00 for his pre-sentence investigation report, $5,000.00 in victim's compensation, $1,500.00 in attorney fees, and $8,600.00 to the Choctaw County Jail for the cost of his incarceration prior to sentencing. The cost of incarceration was calculated at a rate of $20.00 per day, and Hubbard was incarcerated for 480 days. On appeal, Hubbard challenges only the assessment of county incarceration costs against him.

II. Cape v. State, C-2000-194

11 8 Troy Don Cape was charged with Actual Physical Control of a Vehicle While Intoxicated, After Former Conviction of Two or More Felonies, in violation of 47 O.S.Supp. 1998, § 11-902, in Cleveland County District Court, Case No. CF-1999-1060. On January 21, 2000, Cape pled guilty pursuant to a plea agreement with the State. The Honorable Tom Lucas accepted his plea and sentenced Cape to six years imprisonment and assessed $1,650.00 in incarceration costs. That same day, Cape filed a motion to withdraw his plea of guilty, or in the alternative, to reconsider the assessment of incarceration costs and requested an evidentiary hearing. A hearing on Cape's motion was held on February 16, 2000. Cape challenged the assessment of incarceration costs on several grounds. The district court denied Cape's motion, and he filed this appeal.

4 Although phrased differently, Hubbard and Cape each raise the following propositions on appeal:

1. The trial court abused its discretion by arbitrarily assessing incarceration costs without following this Court's rules or adhering to the incarceration costs statute, and
2. The assessment of incarceration costs against an indigent defendant violates the equal protection and due process clauses of the Fourteenth Amendment.

T5 After thorough consideration of these propositions and the records before us on appeal, including the original records, transcripts, and briefs of the parties, we remand each case to the district court for evidentiary hearings for the reasons set forth below.

T6 A district court has jurisdiction to assess certain costs of prosecution on a convicted defendant. 28 O.S.1991, § 101. Title 22 O.S.Supp.1999, § 979a(A) extends the costs of prosecution to include the costs of detention in a city or county jail.

[The municipal attorney or district attorney shall ask the court to require a person confined in a city or county jail, for any offense, to pay the jail facility the costs of incarceration, both before and after convietion, upon conviction or receiving a deferred sentence. Costs of incarceration shall include booking, receiving and processing out, housing, food, clothing, medical care, dental care, and psychiatric services. The costs of incarceration shall be an amount equal to the actual cost of the services and shall be determined by the chief of police for city jails, and by the county sheriff for county jails.... The costs shall not be assessed if, in the judgment of the court, such costs would impose a manifest hardship on the person, or if in the opinion of the court the property of the person is needed for the maintenance and support of immediate family. ...

Id. The district court's discretion in assessing incarceration costs is limited to determining whether assessment would create a "manifest hardship" upon the defendant, or whether the defendant's financial responsibilities to his or her dependents would make restitution impracticable. Id. We cannot say that this limited discretion necessarily results in arbitrary assessments. Cf. Walters v. State, 1998 OK CR 4, 115, 848 P.2d 20, 24-25 (Crime Victims Compensation Act properly channeled sentencing court's discretion by enumerating factors relevant to assessment).

17 Because Hubbard did not object to the assessment of incarceration costs at sentencing, we review only for plain error. Simpson v. State, 1994 OK CR 40, 12, 876 P.2d 690, 698. In Hubbard's case, the district court properly considered whether assessment of incarceration costs would pose a manifest hardship to Hubbard or his dependents. The court found that Hubbard had the ability to pay based on his age, health, and work experience. The court also concluded that assessment of the costs would not impose a manifest hardship on Hubbard's dependents. We find no error in the district court's determination in this regard.

18 However, the district court did not follow the procedure provided in the statute for determining the costs of incarceration. At sentencing, the district judge indicated that he had stated before in open court that the cost of incarceration was $20.00 per day. The record does not establish how this figure was determined, or whether it was determined by the county sheriff as required by § 979a(A). We find this to be plain error, and therefore VACATE the amount of incarceration costs assessed with respect to Appellant Hubbard and REMAND this matter to the district court for an evidentiary hearing, where incarceration costs can be calculated in accordance with the applicable statute.

19 We reach a similar conclusion with respect to Appellant Cape. In Cape's case, the district court took judicial notice of a formula used by the county sheriff which, apparently, was based on one used by the United States Marshal's Service. While this procedure itself does not violate § 979a(A) because the county sheriff calculated the costs, there is no record evidence of the basis for the sheriffs calculation. We find this deviation from $ 979a(A) to be plain error, and therefore VACATE the amount of incarceration costs assessed against Appellant Cape and REMAND for an evidentiary hearing where the basis for the assessment can be presented.

110 This Court recognizes the burden that would ensue if an evidentiary hearing regarding incarceration costs were required at every defendant's sentencing proceeding. To avoid this unnecessary burden in the future, we hold the following:

1. Within thirty (80) days of this order, the respective district courts in these cases shall hold hearings to receive evidence from the county sheriff, pursuant to 22 0.8.8upp.1999, § 9792, reflecting the actual cost to the respective counties of the services provided in direct relation to the incarceration of Appellants Hubbard and Cape.
2. In all counties and municipalities, courts shall hold a hearing with the sheriff or chief of police to determine the average daily cost of incarceration in the particular jail, and shall issue an administrative order promulgating this information. This order shall be made readily available in each county or municipality, and shall be updated annually. Courts may then take judicial notice of this information in assessing incarceration costs in subsequent cases.
3. Before incarceration costs are assessed in any particular case, the defendant shall be allowed to submit to the district court an affidavit regarding his present ability to pay, which the court shall consider in deciding whether assessment of these costs would impose a manifest hardship on him or his dependents. At the sentencing hearing the defendant must show, by a preponderance of evidence, that assessment of incarceration costs would create such a hardship. If the court does not so find, and assesses incarceration costs, the defendant's financial ability to pay these costs onee he is released from custody (or whenever the amount is otherwise due) remains subject to judicial review under the procedures outlined in this Court's Rules. See Rule 8.1, et seq., Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2001). See also McDonald v. State, 1988 OK CR 245, ¶17, 764 P.2d 202, 206; Armstrong v. State, 1987 OK CR 176, §5, 742 P.2d 565, 567; Jones v. State, 1984 OK CR 70, 19, 682 P.2d 757, 759.

This procedure applies only to the assessment of costs for confinement in a county or municipal jail, or a private jail operated under contract with a county or municipality, pursuant to § 979a(A) of Title 22, Oklahoma Statutes.

¶11 In so holding, we reject Appellants' assertions that the assessment of incarceration costs under § 9792 violates the Fourteenth Amendment guarantees of due process and equal protection. We begin with the presumption that the statute is constitutional, and place the burden on Appellants to demonstrate otherwise. Clayton v. State, 1995 OK CR 3, ¶15, 892 P.2d 646, 654. As for the due process argument, under the provisions of § 979a(A), the defendant has an opportunity to show why such costs should not be assessed against him in the first instance. Cf. Bearden v. Georgia, 461 U.S. 660, 672-78, 108 S.Ct. 2064, 2078, 76 L.Ed.2d 221 (1983) (defendant constitutionally entitled to a hearing before detention for failure to pay fines and restitution); Honeycutt v. State, 1992 OK CR 36, 135, 834 P.2d 993, 1000 (defendant entitled to a hearing on assessment of victim restitution under analogous statute). We find this procedure sufficient to give the defendant an opportunity to be heard on the issue.

112 As for the equal protection argument, Appellants must demonstrate that § 979a(A) either (1) impermissibly interferes with their exercise of a fundamental right, (2) operates to their peculiar disadvantage as members of a suspect class, or (8) is not rationally related to a legitimate state interest. Clayton, 1995 OK CR 3 at 117, 892 P.2d at 654. Appellants do not claim any fundamental constitutional right on the part of incarcerated defendants to have the costs of their imprisonment and supervision paid by taxpayers. Appellants likewise have failed to show that they are members of any historically suspect class. The narrow question before this Court, therefore, is whether requiring reimbursement from a convicted defendant for the costs of his incarceration bears some rational relationship to a legitimate state purpose. We believe it does.

{13 Appellants contend that because of their indigency, they are subjected to greater financial liability in a eriminal prosecution than a wealthier person who can afford to post bail. However, personal financial resources are only one factor determining whether an accused is confined prior to trial. The gravity of the offense, the accused's contacts in the community, his previous record, and his ability to receive assistance from friends and family are equally important factors, and are not related to indigeney. In some cases, bail may be denied regardless of the defendant's financial status. See Okl. Const. art. 2, § 8; Petition of Humphrey, 1979 OK CR 97, ¶14, 601 P.2d 103, 108. Furthermore, § 979a(A) permits the district court to waive incarceration costs in cases of manifest hardship. Recouping the costs of incarceration is of legitimate concern to state and local governments. Section 9792 is not designed to punish the poor; it is designed to hold accountable those who have the ability to repay these costs, and it ensures that a particular defendant will only be held accountable for the costs attributable to him. We conclude that a rational basis exists for the State, and political subdivisions thereof, to seek reimbursement for these costs.

DECISION

1 14 The Judgment and Sentences of both district courts with respect to costs of incarceration are VACATED and REMANDED for evidentiary hearings not inconsistent with this opinion.

LUMPKIN, P.J: concurs in part/dissents in part.

CHAPEL, J.: concurs.

STRUBHAR, J.; concurs.

LILE, J.; concurs.

LUMPKIN, Presiding Judge:

concur in part/dissent in part.

T1 I dissent to the Court's decision to vacate and remand for an evidentiary hearing the judgments and sentences with respect to the costs of incarceration. Since the only issues raised contest the assessment of costs of incarceration, I find the judgments and sentences are otherwise affirmed. I concur to that implicit affirming of the judgments and sentences not relating to the cost or incarceration.

12 Under 22 O.8.Supp.1991, § 9792, the costs of incarceration "shall not be assessed if, in the judgment of the court, such costs would impose a manifest hardship on the person, or if in the opinion of the court the property of the person is needed for the maintenance and support of immediate family." The only guidance provided to the trial court in determining the amount of jail costs is found in the language "(tlhe costs for incarceration shall be an amount equal to the actual cost of the services and shall be determined by the chief of police for city jails, by the county sheriff for county jails or by contract amount, if applicable."

T3 In Hubbard, when the trial court imposed the jail fees, it specifically found Appellant had the ability to pay based on his employability. In this regard, the court found Appellant was young, healthy, physically fit and had demonstrated his ability to work in various capacities. The court also found the imposition of the fines and costs would not pose a financial hardship on Appellant's family as he had not been supporting his 4 kids and had no legal obligation for support.

14 Further, the Judgment and Sentence shows fees to the Choctaw County Jail of $8,600.00. In the transeript, the judge states it had been previously determined in open court the cost was $20.00 a day per inmate for the Choctaw County Jail. The trial court further stated that Appellant would have 90 days from the date of his release to find a job and start paying on the fees, or make arrangements with the court clerk to work out a payment schedule. This procedure satisfied the requirements of § 97923. Therefore, remanding the case for a further evidentiary hearing is not necessary in this case. In addition, a challenge to the cost of incarceration was not raised at trial, therefore, all but plain error has been waived. Simpson v. State, 876 P.2d 690, 698 (Okl.Cr.1994). There is no plain error present in this case.

{5 Appellant's argument that because he was indigent at the time of trial, therefore he will still be indigent after he has served his prison sentence is not persuasive. Here, the trial court specifically looked past the term of incarceration and considered Appellant's em-ployability, and indicated a payment plan could be worked out. Further, Rule 8, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1999), is in place for the failure to pay once time is served.

T6 As for Cape, this case is a certiorari appeal; therefore, we do not even reach the issue of jail costs. Assuming arguendo, that issue is appropriate for certiorari review, § 9792 does not require the trial court to set forth its calculation of incarceration costs. In Cape, the trial court was presented with a Verification of Jail Costs from the Cleveland County Sheriff. A letter to the judge shows the sheriff arrived at his cost of $830.00 per day per inmate based upon a formula approved by the U.S. Marshall's Service. There is no requirement in the statute for a hearing to determine the reliability of the sheriff's verification of the amount of jail costs.

T7 Further, the record in Cape does not contain the sentencing hearing. Therefore, we do not know whether Appellant attempted to challenge the sheriff's verification or offer evidence in contradiction. This Court will not assume error from a silent record. Ellis v. State, 795 P.2d 107, 109 (Okl.Cr. 1990). The Verification of Jail Costs from the county sheriff and his accompanying letter of explanation were sufficient to meet the requirements of § 979a(A). Therefore, I see no reason to remand this case for an eviden-tiary hearing on the costs of incarceration.

18 This Court has consistently held that for purposes of payments of fines and costs, the time for determining ability to pay and/or hardship is when the obligation to pay com-meneces, 4.¢., after release from incarceration and the provisions of Rule 8 come into application. See Dyer v. State, 815 P.2d 689, 691 (Okl.Cr.1991); DeRonde v. State, 715 P.2d 84, 87 (Okl.Cr.1986); Jones v. State, 682 P.2d 757, 759 (Okl.Cr.1984) (all finding the issue of ability to pay judicially imposed fines is raised prematurely on direct appeal as the ability to pay is not to be determined until the appellant's release from incarceration). However, § 9792 provides for the determination of "manifest hardship" in regards to the costs of incarceration at the time of sentencing. The term "manifest hardship" as used in this statute is not defined by the Legislature. Looking at Webster's Dictionary, "manifest" is defined as "obvious" "clearly apparent to the sight or understanding". "Hardship" is defined as "extreme privation: suffering". Under these definitions, jail costs could not be assessed if such costs would result in obvious suffering or privation for the defendant.

1 9 If this Court is to set forth a directive to the district courts to follow regarding the imposition of jail costs, the procedure set out by the Legislature in § 9792 should be followed. Section 9792 provides that the county sheriff or chief of police is to determine and certify the actual cost of incarceration for each defendant. The district court must then adjudicate and determine if that actual cost will impose a manifest hardship through an adversarial proceeding.

10 The process set forth in the opinion seeks to establish an "average" cost of incarceration, rather than the "actual" cost as required by § 9792. The methodology required does not take into consideration the cost of medical, dental or psychiatric services required for a particular inmate during the course of his/her incarceration. The cost of incarceration can vary greatly over a 12-month period of time. The updating of costs should take place on an ongoing basis rather than just annually.

{11 Further, it is the defendant who has the burden of proof as to ability to pay and manifest hardship. It is very likely that every individual sentenced to incarceration will be able to show hardship due to the incarceration itself. Therefore, proof of "manifest hardship" should be by clear and convincing evidence, not merely a preponderance of the evidence, and properly presented in an adversarial proceeding where the defendant is subject to cross-examination. In addition, the focus of the hearing should be on the ability to pay and manifest hardship, if any, occurring at the time the defendant is to start his/her payments of cost of incarceration. Further, ex parte affidavits have no place in a hearing to determine the facts. See Honeycutt v. State, 834 P.2d 998, 1000 (Okl.Cr.1992) (both the State and the defense have the opportunity to present evidence of the victim's loss and the hardship to the defendant and his family in the area of vie-tim's compensation/restitution assessments).

" 12 I agree a uniform procedure should be established for the assessment of costs of incarceration. However, that procedure should follow the statute, the Rules of this Court and our prior caselaw.

      . Two other charges, Operating a Motor Vehicle While Under Suspension, Revocation or Cancellation, and Failure to Carry a Valid Security Verification Form in Vehicle, were dismissed.

      . While many means of accomplishing this task are available, this Court recommends posting the administrative order in the county or city court clerk's office, and in the county or city jail.

      . We find Cape's argument that his motion hearing resembled a "Rule 8" hearing unpersuasive. See DeRonde v. State, 1986 OK CR 29, 15, 715 P.2d 84, 87 (ability to pay is properly determined after release from incarceration); Rule 8.1 et seq., Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2001). Cape was not confined for willfully failing to pay incarceration costs. There is no right to appeal from a Rule 8 hearing until a final order of confinement, resulting from a defendant's willful failure to pay, has been entered.

      . We note that recent amendments to § 979a(A) contemplate costs of incarceration in private facilities operated under- contract with a political subdivision. See 22 0.$.2001, § 979a(A).