author: LAVENDER, J.;

text:
    2003 OK 96
    Denise Dianne FULSOM, Plaintiff/Appellee, v. Bodine FULSOM, Defendant/Appellee, and Joe Fulsom and Jean Fulsom, Intervening Defendants/Appellants.
    No. 96,458.
    Supreme Court of Oklahoma.
    Nov. 12, 2003.

      B.H. Shoemake of Shoemake Law Office, Pawhuska, OK, for Plaintiff/Appellee.
    Grace K. Yates and Kenneth E. Holmes of Holmes and Yates, Ponea City, OK, for Defendant/Appellee.
    Patti J. Palmer of Palmer & Lamirand, Pawhuska, Oklahoma for Intervening Defendants/Appellants.
   LAVENDER, J.;

{1 In this case we decide whether 48 ©.8.2001, § 110(D) authorized the trial court to order Joe and Jean Fulsom (intervening defendants/appellants/paternal grandparents) to pay attorney fees to Denise Dianne Ful-som (plaintiff/ex-wife/appellee/mother) and Bodine Fulsom (defendant/ex-husband/appel-lee/father), in a post-divorce-decree child custody modification proceeding. We hold § 110(D) does not provide authority for the attorney fee awards against grandparents. Instead, § 110(D) only gives a trial court discretionary equitable authority to award attorney fees for or against the two original parties to the divoree case, i.e., the divorced spouses, based on a judicial balancing of the equities between those two parties.

PART I. STANDARD OF REVIEW.

T2 The focus of this case is gauging the meaning of § 110(D); thus, confronting us is a question of law. A legal question involving statutory interpretation is subject to de novo review [Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8 and n. 5, 33 P.3d 302, 805 and n. 51, i.e., a non-deferential, plenary and independent review of the trial court's legal ruling. Id.

PART II. FACTUAL AND PROCEDURAL BACKGROUND.

€3 Mother and father divorced in 1997. The divorce decree awarded father custody of the parties' two minor children. In 2000 mother sought to modify the decree to place custody with her, which father opposed. Paternal grandparents intervened in the post-divorce-decree child custody modification proceeding and sought to place custody with them. After hearing, via an "Order of Modification" filed in March 2001, the trial court dismissed grandparents' motion to modify based on a finding they failed to show either mother or father was unfit, granted mother's motion and awarded her custody.

T4 Thereafter, both parents separately moved to have grandparents pay their attorney fees, each relying on § 110(D) as the authority allowing a fee recovery. Grandparents responded, arguing § 110 did not provide authority to award fees against them. The trial court granted both motions, grandparents were ordered to pay the attorney fees of each parent and grandparents appealed the fee awards.

15 In a 2-1 decision the Court of Civil Appeals (COCA), Division I reversed the awards. In effect, the COCA's majority opinion held that § 110(D), read in conjunction with § 110(C), granted only discretionary authority to award attorney fees for or against the two original parties to the divorce case, ie., the divorced wife and husband. The COCA's dissenting judge believed § 110(D) should be interpreted in light of 10 ©.$.2001, § 5(E)(7) and (H), provisions concerning authority to award attorney fees in proceedings involving grandparents and visitation with their grandchildren.

T6 Though the COCA's majority opinion correctly held § 110(D) did not authorize the attorney fee awards against grandparents, we previously granted parents' separate petitions for writs of certiorari to decide a first impression question, to wit: does § 110(D) authorize the attorney fee awards against grandparents in this post-divorce-decree modification proceeding or, instead, does § 110(D) grant only discretionary equitable authority to award attorney fees against or in favor of the two parties to the original divorce case, i.e., the divoreed spouses at the time of the modification proceeding?

PART III. ANALYSIS.

T7 The primary goal of statutory construction is to ascertain and follow the intention of the Legislature. TRW/Reda Pump v. Brewington, 1992 OK 31, 829 P.2d 15, 20. The plain meaning of a statute's language is conclusive except in the rare case when literal construction would produce a result demonstrably at odds with legislative intent. Samman v. Multiple Injury Trust Fund, supra, 2001 OK 71, at ¶ 13, 33 P.3d at 307; City of Tulsa v. Public Employees Relations Board, 1998 OK 92, ¶ 14, 967 P.2d 1214, 1220. Also, a court is duty-bound to give effect to legislative acts, not amend, repeal or cireumvent them. Id., 1998 OK 92, at ¶ 18, 967 P.2d at 1221. A universally recognized principle in cases when a court is called on to interpret legislative enactments is that the court is without authority to rewrite a statute merely because the legislation does not comport with the court's conception of prudent public policy. See id.

T8 This Court stated the following in State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, ¶ 16, 61 P.3d 234, 243, concerning the well-known American Rule as to the recovery of attorney fees in litigation:

Oklahoma follows the American Rule.... The Rule is generally that each litigant pays for their own legal representation and our courts are without authority to assess attorney fees in the absence of a specific statute or contract allowing for their recovery. Exceptions to the Rule are narrowly defined and carved out with great caution because it is understood liberality of attorney fee awards against the non-prevailing party has a chilling effect on our open access to courts guarantee. [Citations omitted.]

Oklahoma jurisprudence, thus, recognizes that attorney fee statutes are strictly applied because to do otherwise holds out the real possibility of chilling access to the courts. Beard v. Richards, 1991 OK 117, 820 P.2d 812, 816; In re Adoption of K.M.S., 2000 OK CIV APP 25, 13, 997 P.2d 856, 857; see Abbott v. Abbott, 2002 OK CIV APP 6, ¶ 14, 38 P.3d 937, 941. For an award of attorney fees to be authorized under a particular statute the authorization must be found within the strict confines of the involved statute. Beard v. Richards, supra, 820 P.2d at 816. Further, if the involved attorney fee statute requires interpretation it may be read in context with other parts of the statute and in light of the law in effect at the time of its enactment. See id.

T9 In McDonald v. Wrigley, 1994 OK 25, 870 P.2d 777, this Court held that grandparents may intervene in the parents' divorce action to attempt to show themselves entitled to custody of their minor grandchildren upon a proper showing, by clear and conclusive evidence, of unfitness of both parents. 870 P.2d at 781-782. Custody so awarded is considered temporary in nature because once a parent shows themselves fit they are generally entitled to regain custody. Id. The propriety of an attorney fee award was not an issue in McDonald v. Wrigley. Thus, although we have recognized grandparental intervention in a parents' divorce case to seek custody of their grandchildren, we have not construed either § 110(C) or (D) to gauge whether or not those provisions are applicable to allow an award of attorney fees for or against grandparents who do so.

10 In matrimonial litigation generally, the propriety of a counsel-fee allowance does not depend on prevailing party status, but is based on a judicial balancing of the equities. Thielenhaus v. Thielenhaus, 1995 OK 5, 890 P.2d 925, 9834-985; Merritt v. Merritt, 2008 OK 68, 120, 73 P.3d 878, 884 (attorney fees in such cases are granted only to litigant who qualifies for the benefit through process of judicial balancing of the equities); Abbott v. Abbott, 2001 OK 31, 111, 25 P.3d 291, 294 (counsel-fee allowances in child custody modification proceedings under § 110(D) do not depend on any one factor such as status as prevailing party or financial means of a party, but are granted to litigant who qualifies through process of equitable judicial balancing). Title 48 0.8.2001, § 110(C) and (D) provide:

If the court finds that visitation rights of the grandparent have been unreasonably denied or otherwise unreasonably interfered with by the parent, the court shall enter an order providing for one or more of the following: ... assessment of reasonable attorney fees, mediation costs, and court costs to enforce visitation rights against the parent[.]

C. Upon granting a decree of divorce or separate maintenance, the court may require either party to pay such reasonable expenses of the other as may be just and proper under the cireumstances.

D. The court may in its discretion make additional orders relative to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the dissolution of marriage action made for the benefit of either party or their respective attorneys.

§$11 When one reads § 110(C) and (D), the plain language points to legislative contemplation of but two parties, the divore-ing or divorced spouses. As noted by the COCA's majority opinion, to include others in addition to those two parties (such as intervening grandparents) would require substituting the words "any party" for "either party" and "of any other party" for "of the other". Giving such a broad scope to § 110(C) and (D) would also entail liberal application, rather than strict, would be based on implication, rather than expression; and would run counter to the normal way we apply and view attorney fee statutes.

12 Nothing in the other subsections of § 110 expresses an intent that others, such as intervening grandparents, were meant to fall within the ambit of the expense provisions found in § 110(C) and (D). See supra note 7 for other subsections of § 110. For us to rule that intervening grandparents are included within the terms of the provisions would entail rewriting the language, something we have no warrant in undertaking. If the Legislature intends to include others in addition to the divorcing or divoreed spouses within the discretionary equitable sweep of § 110(C) and (D), it is that body which must do so. To date, the Legislature has not expressed such an intention.

113 We also find nothing in 10 O.S. 2001, § 5(E)(7) and (H) (concerning grandpa-rental visitation and the potential for an attorney fee recovery for or against grandparents in such a proceeding) at odds with a determination § 110(C) and (D) only contemplate two persons within their attorney fee orbit. In 1999 an express attorney fee provision was added to 10 0.S8.Supp.1997, § 5 as subsection (E). 1999 Okla.Sess.Laws, Ch.383, § 1; 10 0.8.8upp.1999, § 5(B). It provided: "[iJn any action for grandparental visitation pursuant to this section, the court may award attorney fees and costs, as the court deems equitable." In 2000, § 5 was extensively amended, one amendment being § 5(E) became § 5(H); another being the addition of § 5(E)(7). The latter provides: "(lf the court finds that the motion for enforcement of visitation rights has been unreasonably filed or pursued by the grandparent, the court may assess reasonable attorney fees, mediation costs, and court costs against the grandparent." 2000 Okla.Sess. Laws, Ch.246, § 1; 10 0.8.8upp.2000, § 5(E)(7). In 2008, § 5 was again amended (effective November 1, 2008), but § 5(E)(7) and (H) remained unaltered. 2008 Okla.Sess.Laws, Ch.268, §§ 1-2. Although not cited by any party, or by the COCA's majority opinion or dissent, we also note that 10 0.8.2001, § 5(E)(6)(d) also contains an attorney fee provision relating to grandparental visitation matters. It provides:

The 20038 amendments § 5(E)(6)(d). did not alter

, T14 In § 5 the Legislature has been direct and express in grandparental visitation matters concerning its intent to allow attorney fees in the circumstances covered by § 5(E)(6)-(7) and (H). No such directness or expression is found in § 110, other than as to the divorcing or divorced spouses. It may be that the Legislature provided for attorney fees in the visitation situation because it recognized visitation proceedings involving grandparents would be numerous, as opposed to custody requests which involve a more onerous infringement on parental rights. In other words, the Legislature may have simply decided that a general equitable attorney fee provision as to the latter was either not needed or warranted. In any event, § 5, concerning as it does grandparen-tal visitation, simply cannot be stretched to engulf a proceeding not involving a visitation quest, but legal custody. It must also be stated that the wisdom of such legislative choices is not our concern, because such choices-absent constitutional or other recognized infirmity-rightly lie within the legislative sphere.

15 We also reject father's argument, to the effect, that intervening grandparents may somehow act with impunity in child eus-tody proceedings brought in divorce cases if we fail to include them within $ 110's attorney fee reach. The argument is misplaced.

If grandparents attempt intervention on wholly frivolous (legal and/or factual) grounds or somehow engage in bad faith litigation misconduct, there are statutory and inherent mechanisms available to deal with the situation. Title 12 0.8.2001, § 2011 provides a statutory solution. The basic contours of § 2011 are spelled out in State ex rel. Tal v. City of Oklahoma City, supra, 2002 OK 97, at ¶¶ 17-18, 61 P.3d at 248-245. Delineation of a court's inherent equitable authority to sanction bad faith litigation misconduct is also set forth in State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, at ¶ 26, 61 P.3d at 247. Of course, this inherent authority was recognized by this Court over two decades ago in the case of City National Bank & Trust Co. v. Owens, 1977 OK 86, 565 P.2d 4. Neither § 2011 nor the inherent authority exception to the American rule as to the recovery of attorney fees is before us in this case, however, because neither were relied on by father or mother below, and the trial court plainly did not rule on their applicability. In other words, both father and mother placed their reliance solely on § 110(D), a provision we hold does not authorize the attorney fee awards against grandparents contained in the trial court order under review.

PART IV. SUMMARY.

116 The parents of two minor children, grounding their requests on § 110, sought to have intervening grandparents pay their attorney fees in a post-divoree-decree child custody modification proceeding. The trial court awarded attorney fees to both parents and against grandparents. The COCA, in a 2-1 decision, reversed the attorney fee awards. Although the COCA's majority opinion correctly reversed, certiorari was granted by us to decide a question of first impression concerning the applicability

of § 110(D) in the cireumstances of this case. We now hold § 110(D) does not provide authority for the attorney fee awards against grandparents. Instead, § 110(D) only gives a trial court discretionary equitable authority to award attorney fees for or against the two original parties to the divoree case, le., the divorced spouses at the time of the modification proceeding, based on a judicial balancing of the equities between those two parties.

T17 The opinion of the Court of Civil Appeals is VACATED and the trial court order granting attorney fees against intervening defendants/appellants and in favor of plaintiff/appellee and defendant/appel-lee is REVERSED.

T 18 ALL JUSTICES CONCUR.

      . The hearing began in August 2000 and ended in January 2001. It took place on a handful or so days and/or partial days during this time period. The "Order of Modification" is not challenged in this appeal.

      . The "Order Granting Motion for Attorney Fees", filed in the trial court in July 2001, ordered grandparents to pay fees of $6,218.75 to mother and $7,147.76 to father.

      . In mother's "Application for Attorney Fees and Costs and Supporting Brief", filed below in April 2001, she also requested fees from father. No issue is raised in this appeal concerning any trial court ruling on mother's fee quest against father. The Court of Civil Appeals' (COCA) majority opinion, in addition to reversing the fee awards, remanded to the trial court "for consideration of Mother's and Father's quests for attorney fees against each other."

      . In addition to arguing on appeal that 43 O.S. 2001, § 110 did not provide authority for the fee awards, grandparents also challenged the reasonableness of the fees awarded. In view of the COCA's ruling that § 110(D) did not provide authority for the attorney fee awards at all, the COCA did not need to decide the reasonableness issue. For the same reason it is unnecessary for us to reach grandparents' reasonableness issue(s).

      . In his January 2002 appellate answer brief and June 2002 petition for writ of certiorari father asserts grandparents confessed his fee motion because their trial court response to it was filed more than fifteen (15) days after the motion was served on them. The confession argument is based on Rule 4(e) of the Rules for District Courts of Oklahoma, 12 O0.S.2001, Ch.2, App. Father's fee motion was filed in the trial court on April 6, 2001; he alleges it was served on grandparents March 30, 2001; and grandparents' response was filed on May 14, 2001. In 2001, when father's fee motion was filed and the trial court ruled on it, Rule 4(e) provided: "[alny party opposing a motion, except those enumerated in Section c above, shall serve and file a brief or a list of authorities in opposition within fifteen (15) days of the service of the motion, or the motion shall be deemed confessed." Rule 4(c) does not except an attorney fee motion. The COCA's majority opinion ruled on father's con-{ession argument by, in effect, holding it would be improper to deem the fee motion confessed in a situation where the trial court lacked the power to award attorney fees under the claimed authorizing statute, i.e., 43 0.$.2001, § 110.
      The record presented on appeal fails to show father raised a confession argument in the trial court, either by written submission or by oral presentation at the May 14, 2001 proceeding concerning mother's and father's fee requests. Nothing in the record presented to us, including the trial court order under review, indicates the trial judge deemed father's motion confessed based on Rule 4(e). Under the record before us, then, father first raised the confession argument on appeal. "Matters not first presented to the trial court for resolution are generally not considered on appeal." Stonecipher v. District Court of Pittsburg County, 1998 OK 122, 111, 970 P.2d 182, 186. In our view, nothing warrants deviation from the general rule of non-consideration of issues raised for the first time on appeal. Thus, we do not consider the confession issue.
      We also note that by Order of this Court of September 16, 2002, Rule 4(e) was amended {effective October 17, 2002) to provide: "[alny party opposing a motion, except those enumerated in Section c above, shall serve and file a brief or a list of authorities in opposition within fifteen (15) days after service of the motion, or the motion may be deemed confessed." (Emphasis added.) 12 0.S.$upp.2002, Ch.2, App. The September 2002 Order issued in Oklahoma Supreme Court Case No. SCBD-4553 and may be found at 2002 OK 69. Via the Order, the words "of the" contained in the 2001 version of Rule 4(e) were changed to "after" and the word "shall" in the 2001 version was changed to "may".

      . McDonald v. Wrigley, 1994 OK 25, 870 P.2d 777, disapproved Logan v. Smith, 1979 OK 148, 602 P.2d 647, to the extent Logan disallowed adjudication of grandparental custody in a divorce case. McDonald v. Wrigley, 870 P.2d at 782.

      .. The remainder of 43 0.$.2001, § 110 provides:
      A. After a petition has been filed in an action for divorce or separate maintenance either party may request the court to issue:
      1. A temporary order:
      a. regarding child custody, support or visitation,
      b. regarding spousal maintenance,
      c. regarding payment of debt,
      d. regarding possession of property,
      e. regarding attorney fees,
      £. restraining any person from transferring, encumbering, concealing, or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring such person to notify the other party reasonably in advance of any proposed extraordinary expenditures made after the order is issued,
      g. enjoining a party from molesting or disturbing the peace of the other party or of any child,
      h. excluding a party from the family home or from the home of the other party,
      i. enjoining a party from removing a child from the jurisdiction of the court, and
      j. providing other injunctive relief proper in the circumstances.
      All applications for temporary orders shall set forth the factual basis for the application and shall be verified by the party seeking relief. The application and a notice of hearing shall be served on the other party in any manner provided for in the Rules of Civil Procedure. The court shall not issue a temporary order until at least five (5) days' notice of hearing is given to the other party.
      After notice and hearing, a court may issue a temporary order granting the relief as provided by this paragraph; and/or
      2. A temporary restraining order. If the court finds on the basis of a verified application and testimony of witnesses that irreparable harm will result to the moving party, or a child of a party if no order is issued before the adverse party or attorney for the adverse party can be heard in opposition, the court may issue a temporary restraining order which shall become immediately effective and enforceable without requiring notice and opportunity to be heard to the other party. If a temporary restraining order is issued pursuant to this paragraph, the motion for a temporary order shall be set within ten (10) days.
      B. Any temporary orders may be vacated or modified prior to or in conjunction with a final decree on a showing by either party of facts necessary for vacation or modification. Temporary orders terminate when the final judgment on all issues, except attorney fees and costs, is rendered or when the action is dismissed. The court may reserve jurisdiction to rule on an application for a contempt citation for a violation of a temporary order which is filed any time prior to the time the temporary order terminates.
      The 2001 version of § 110 is identical to 43 0.$.Supp.1997, § 110, that in force when mother filed her motion to modify custody in 2000. Section 110 was amended in 2002 and 2003, the amendments primarily dealing with aspects of an automatic temporary injunction in dissolution or annulment of marriage, or legal separation, litigation. 2002 Okla.Sess.Laws, Ch. 400, § 6; 43 O.S.Supp.2002, § 110; 2003 Okla.Sess.Laws, Ch. 302, § 3. Subsections 110(C) and (PD) are now found at § 110(D) and (E). The 2002 and 2003 amendments have no impact on our disposition of this matter. Subsections 110(D) and (E) currently provide:
      D. Upon granting a decree of dissolution of marriage, annulment of a marriage, or legal separation, the court may require either party to pay such reasonable expenses of the other as may be just and proper under the circumstances.
      E. The court may in its discretion make additional orders relative to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the dissolution of marriage action made for the benefit of either party or their respective attorneys.

      . The COCA's majority opinion is essentially consistent with two previous COCA's, Division I opinions. Sicking v. Sicking, 2000 OK CIV APP 32, 996 P.2d 471, cert. denied (Okla.2000), cert. denied 531 U.S. 876, 121 S.Ct. 182, 148 L.Ed.2d 126 (2000); Rogers v. Rogers, 1999 OK CIV APP 123, 994 P.2d 102.

      . We note we are aware there are other statutes that may authorize an attorney fee award against intervening grandparents in a child custody dispute in a divorce case. See eg. 43 O.S.Supp. 2002, § 112(D)(2) and 43 0.$.2001, § 551-101 et seq., the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), see collectively, §§ 551-102(4), 551-205(C) and 551-312(A) of the UCCJEA. Section 112 was amended in 2003, but subsection (D)(2) remains unchanged. Further, although the record presented to us seems to show grandparents are residents of Kansas, not Oklahoma and that the minor children involved in the custody dispute lived in Kansas with grandparents at least some of the time father had custody of them under the divorce decree's terms, neither father nor mother have relied on the UCCJEA, § 112(D)(2) or any other such statute in the trial court, on appeal or certiorari, to support their attorney fee quests. Therefore, a decision as to the exact scope of the aforementioned statutes or others and their applicability to third-party intervenors in a post-divorce-decree proceeding involving an attempt to modify child custody must await another day.

      . In November 2002 father filed a motion for oral argument pursuant to Oklahoma Supreme Court Rule 1.9, 12 0.$.2001, Ch.15, App. 1. Rule 1.9 provides that oral argument before this Court is not a matter of right and a motion requesting oral argument shall set forth the exceptional reason that oral argument is necessary. The reasons put forward in father's motion are 1) the issue of whether the trial court had authority under 43 0.$.2001, § 110(C) and (D) to award attorney fees against grandparents is one of first impression and 2) oral argument would assist this Court in determining legislative intent as to the definition of "party", as used in said subsections. In our view, the matter has been adequately presented by the appellate and certiorari submissions of grandparents, father and mother and the record from the trial court presented to us. Also, we believe oral argument would not materially assist us in evaluating the legislative intent behind § 110(C) and (D), involving as it does, a legal question based on the statutory language and our prior jurisprudence concerning strict application of attorney fee statutes. We deny father's motion for oral argument.


source: Caselaw Access Project

author: SUMMERS, J.

license: Public Domain

text:
    2003 OK 99
    FARMERS INSURANCE COMPANY, INC., and Farmers Insurance Exchange, Petitioners, v. The Honorable David L. PETERSON, District Judge for the Fourteenth Judicial District, Tulsa County, Oklahoma, Respondent, and Joseph L. Dallape and Deborah Dallape, Real Parties in Interest.
    No. 99,836.
    Supreme Court of Oklahoma.
    Nov. 25, 2003.

      Dennis King, Ashley M. Bibb, King Taylor & Ryan, P.C., Tulsa, OK, for Petitioners.
    Timothy G. Best, Catherine L. Campbell, Matthew B. Free, Best & Sharp, Tulsa, OK, for Real parties in interest.
   MEMORANDUM OPINION

SUMMERS, J.

1 1 Original jurisdiction is assumed. Okla. Const. Art. 7 § 4. Real Parties in Interest (Third-Party Plaintiffs or Plaintiffs) were granted, in part, a motion to compel discovery. The order of the District Court requires Defendant and Petitioner (Farmers Insurance Co.) to search claim files for the years 2000, 2001 and 2002 to determine those that contain complaints from Oklahoma insureds on med-pay claims. Farmers seeks to prohibit enforcement of that order.

1 2 Evidence submitted by Farmers shows that compliance with the order would require Farmers to manually examine approximately 600,000 closed files located in a Kansas storage facility. Farmers estimated that it would take a staff of thirty people working two months to review these files. Farmers currently employs a retrieval staff of six people for all of the retrieval needs of its business. After October 2001 Farmers used an electronic method for storing files, and provided to Plaintiffs a list of approximately 3300-3400 claims (approximately 70 pages with approximately 48 claims per page) that arose from accidents occurring in Oklahoma prior to January 1, 2008. The evidence shows that compliance with the order requires an employee to examine all 3800-3400 electronic files, and this task may take thirty minutes for each file.

T3 Discovery may be limited or denied when discoverable material is sought in an excessively burdensome manner. YWCA of Oklahoma City v. Melson, 1997 OK 81, ¶ 25, 944 P.2d 304, 312. We agree that requiring an examination of all paper and electronic files for the three-year period would be unduly burdensome. However, we also agree with Plaintiffs that Farmers' unilateral decision on how it stores information cannot, by itself, be a sufficient reason for placing discoverable matter outside the seope of discovery. See, eg., Fagan v. District of Columbia, 136 F.R.D. 5, 7 (D.D.C.1991), ("Plaintiffs should not suffer if the information is not easily accessible because defendants have an inefficient filing system."); Koglowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 76 (D.Mass.1976), ("defendant may not excuse itself from compliance with Rule 34, Fed.R.Civ.P., by utilizing a system of record-keeping which conceals rather than discloses relevant records, or makes it unduly difficult to identify or locate them, thus rendering the production of the documents an excessively burdensome and costly expedition").

T4 Plaintiffs asserts that the material is sought for the purpose of their theory that Farmers engaged in a pattern of conduct that was wrongful as it relates to med-pay claims. Statistical sampling is a common technique used to determine a pattern of conduct.

Statistical protocols represent standards for determining whether and under what cireumstances it is reasonable to extrapolate from a known universe to an unknown one. See Kaye & Freedman, Reference Guide on Statistics, Federal Judicial Center's Reference Manual on Scientific Evidence 382 (1994). They draw on probability theory to determine whether the observed variations likely depend upon chance, or whether they likely represent a pattern of intentional conduct.

U.S. v. Skodnek, 933 F.Supp. 1108, 1117 (D.Mass.1996), (emphasis added). See also Federal Judicial Center, Reference Manual on Scientific Evidence, 88-178 (2d ed.2000), (Reference Guide on Statistics).

For example, in the context of the federal government seeking recoupment of Medicare overpayments involving a large number of patient files, one court said that "courts have routinely permitted the use of statistical sampling to determine whether there has been a pattern of overpayments spanning a large number of claims where case-by-case review would be too costly." Chaves County Home Health Service, Inc. v. Sullivan, 289 U.S.App.D.C. 276, 931 F.2d 914, 919, (D.C.Cir.1991), cert. denied, 502 U.S. 1091, 112 S.Ct. 1160, 117 L.Ed.2d 408 (1992). Statistical sampling as discovery is not novel in the courts of law. See Rosado v. Wyman, 322 F.Supp. 1173, 1180 (E.D.N.Y.), aff'd, 437 F.2d 619 (2d Cir.1970), aff'd, 402 U.S. 991, 91 S.Ct. 2169, 29 L.Ed.2d 157 (1971): "Sampling has long been considered an acceptable method of determining the characteristics of a large universe. . Such mathematical and statistical methods are well recognized by the courts as reliable and acceptable in determining adjudicative facts."

15 Permissible inferences from particular statistical methods depend upon the appropriateness of a particular statistical method in a given set of circumstances. For example, the High Court has said that: "We caution only that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances." International Broth. of Teamsters v. U.S., 431 U.S. 324, 340, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). A particular statistical method selected by one party may be challenged as either factually or legally deficient by the opposing party. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 996-997, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988).

T6 In Christian v. Gray, 2003 OK 10, 65 P.3d 591, we issued a writ and addressed the general nature of evidence used to show causation for a particular type of tort, but we expressly declined to address in detail the specific evidence that each of the parties should offer on the reliability of their respective expert witnesses. Id., 2003 OK 10, at ¶ 12, 65 P.3d at 600. We noted the absence of a record on the issue and left it for the parties to litigate in the District Court. Id.

T7 The parties in the case today do not discuss either the varying methods of selecting particular files for sampling or the proper discoverable information in those files that would necessarily support the litigation objective of Plaintiffs. They may, or may not, agree to a particular method. No authority is cited in support of placing a burden on the trial court to create, sua sponte, a statistical sampling discovery technique for parties. We decline to hypothesize on the specific parameters of a discovery request that uses statistical sampling prior to the parties addressing the issue in the District Court.

T8 The trial court's order of June 10, 20083, required Farmers to comply with discovery. The trial court denied, by order dated July 11, 2008, Farmers' motion for a protective order. A trial court's abuse of discretion in denying a discovery protective order may be corrected by an extraordinary writ issued by this Court. Inhofe v. Wiseman, 1989 OK 41, 772 P.2d 389, 393.

19 We hereby direct that the District Court's orders of June 10, 2003, and July 11, 2008, in Cause CS-2002-4453, District Court of Tulsa County, shall not be enforced to the extent that they require Farmers to search all of its files for the three-year period and identify those in which a complaint by an Oklahoma insured was made concerning a med-pay claim. The extent to which Plaintiffs may obtain information from Farmers' files by discovery, using a workable statistical sampling technique which would meet the trial court's muster for integrity of the process and protect both litigants from distor-tive effects, is left for the parties to litigate in the District Court. WRIT ISSUED.

10 OPALA, V.C.J., LAVENDER, HARGRAVE, BOUDREAU, JJ., CHAPEL, S.J., sitting in lieu of KAUGER, J., who disqualified-Concur.

1 11 WATT, C.J., dissents and is joined by HODGES, J.

"I would allow discovery of those claims that occurred within one year of Plaintiff's claim.

1 12 WINCHESTER, J,.-Dissents.


author: KAUGER, J.

text:
    2003 OK 103
    The TULSA COUNTY BUDGET BOARD and the Board of County Commissioners of Tulsa County, Ken Yazel, in his Capacity as Tulsa County Assessor and Member of the Tulsa County Budget Board, Plaintiffs/Appellants, v. The TULSA COUNTY EXCISE BOARD, Byron Burke and Janice Lintelman, Members in their Official Capacities, Defendants/Appellees, Independent School District No. 1 of Tulsa County, Oklahoma (The "Tulsa School District"), Independent School District No. 9 of Tulsa County, Oklahoma (The "Union School District"), Independent School District No. 5 of Tulsa County, Oklahoma (The "Jenks School District'"'), Independent School District No. 3 of Tulsa County, Oklahoma (The "Broken Arrow School District"), District No. 11 of Tulsa County, Oklahoma (The "Owasso School District"), District No. 2 of Tulsa County, Oklahoma (The "Sand Springs School District"), Independent School District No. 13 of Tulsa County, Oklahoma (The "Glenpool School District"), Independent School District No. 8 of Tulsa County, Oklahoma (The "Sperry School District"), Independent School District No. 14 of Tulsa County, Oklahoma (The "Liberty School District") and Tulsa Technology Center School District, d/b/a Tulsa Technology Center (The "Tulsa Technology Center"), Intervenor Defendants/Appellees.
    No. 98,780.
    Supreme Court of Oklahoma.
    Dec. 2, 2003.

      Robert A. Nance, Gretchen M. Schilling, Oklahoma City, OK, for Plaintiffs/Appellants.

      Seott D. Boughton, Assistant Attorney General, Oklahoma City, OK, for Defendants/Appellees.
    J. Douglas Mann, Jerry A. Richardson, Oklahoma City, OK, for Intervenors/Defen-dants/Appellees.
   KAUGER, J.

T1 The issues presented are: 1) whether the defendant/appellee, Tulsa County Excise Board (Excise Board), has authority to review the budget of the plaintiff/appellant, Tulsa County Assessor (Assessor); and 2) if so, whether the Excise Board abused its discretion or acted arbitrarily or capriciously in reducing the visual inspection budget. We determine that the Excise Board may resolve funding disputes concerning the visual inspection budget. We also determine that the evidence presented does not demonstrate an abuse of discretion in the Excise Board's shift of personnel costs from the visual inspection to the regular budget. Nevertheless, the Excise Board acted arbitrarily in eliminating all valuation costs from the visual inspection budget.

FACTS

T2 In fiscal matters, Tulsa County operates under the County Budget Act (Budget Act), 19 0.8.2001 $ 1401, et seq. The Budget Act requires the plaintiff/appellant, Tulsa County Budget Board (Budget Board), to prepare a budget for all county funds. The Budget Board submits all budgets to the Excise Board for examination and approval. The Excise Board has authority to strike or reduce any unlawfully budgeted amount.

T3 Assessors are required to conduct a comprehensive countywide program for the individual visual inspection of all taxable property within their respective counties. Under the program, all taxable property must be visually inspected once every four years. The budget for the program is prepared separately from the Assessor's regular budget and both are submitted to the Budget Board for consideration.

T4 For fiscal year 2002-2008, the Budget Board approved the Assessor's general budget in the amount of $2,605,330 and a visual inspection budget of $3,169,835. It is undisputed that the total dollar amount of the combined budgets is reasonable and necessary for operation of the Assessor's office.

T5 Both of the proposed budget amounts were submitted to the Excise Board for approval. As mill fund recipients and entities responsible for funding of the visual inspection budget, the school districts appeared before the Excise Board on June 28, 2002, to protest the budget as excessive. A motion to approve the Assessor's budgets was tabled.

T6 Following the June meeting, Byron Burke, as Chairman of the Excise Board (Chairman), questioned the nature of the visual inspection budget and the items included in the program. In comparing figures between Oklahoma County and Tulsa County, Burke's inquiries revealed that, over a four-year period, Tulsa County spent $4.6 million more than Oklahoma County to inspect 42,-500 fewer parcels-Oklahoma County budgeted $7.11 million to visually inspect 276,000 properties while Tulsa County expended $11.47 million to inspect 288,500 locations. Oklahoma County's per-parcel inspection cost was $25.75 as compared to a per-parcel inspection cost of $49.14 in Tulsa County. An analysis of the salaries included in the Tulsa County budget revealed that: 1) the highest paid employees had been placed in the visual inspection program and that the lower salaried employees were listed in the general budget; 2) although under 68 0.8. § 2823(C), salaries may be prorated between the general budget and visual inspection program, several appraisers who did both visual inspection work and had general office duties were being paid solely out of the visual inspection budget; and 3) an employee's function, or assignment, did not control the budget from which salaries were drawn.

T7 After the Assessor informed the Excise Board that statutory law provided no clear guidance as to the separation of charges between the visual inspection and general budgets and that the respective excise boards and assessors in the state's seventy-seven counties could not agree on which charges belong in either budget, guidance was sought from the Oklahoma Tax Commission (Tax Commission). Although 68 O.S. 2001 2820(C) and Tax Commission Rules require that the Assessor submit the visual inspection plan to the Tax Commission for approval, testimony elicited indicates that the Tax Commission reviews the plan only to determine whether it contains the minimum elements to accomplish the required inspections. Furthermore, the Tax Commission is largely unconcerned with the actual budgetary amount-if the monies allocated are adequate to accomplish the plan's goals. Finally, in the Tax Commission's report to the Legislature, it recommended that the minimum number of employees necessary to carry out the visual inspection program for Tulsa County as twenty-two while the Assessor's payroll records indicate that fifty-five employees would be paid out of the visual inspection budget.

T8 On July 9, 2002, the Excise Board adopted a revised budget for the Assessor-cutting $1,889,835 from the visual inspection budget and recommending that the Budget Board fund the cut to the Assessor's budget in another manner, i.e. by adding the amount to the Assessor's general budget. In making the decision to adjust the visual inspection budget, the Excise Board approved the inclusion of salaries for thirty-two employees-ten more than recommended as a minimum number by the Tax Commission. It struck all expenses related to valuation-a budgetary item traditionally included in all of the seventy-seven county assessors' visual inspection budgets.

T9 The Budget Board, County Commissioners and Assessor filed a petition for writ of mandamus and request for declaratory judgment and injunctive relief in the district court on September 24, 2002. On October 9, 2002, various Tulsa County school districts (School Districts) intervened. The matter was tried to the court on December 6, 2002. The trial judge, Honorable Deborah C. Shall-cross, issued an order on December 26, 2002, denying the request for a writ of mandamus or injunction and refusing to allow an amendment to the petition requesting that the sehool districts be required to place the originally computed reimbursement amounts for the visual inspection program in their respective budgets. In so ruling, the trial court found that the Excise Board: had final approval authority over the Assessor's budget; exercised its discretion in reviewing the budget; and did not act in an arbitrary or capricious manner. Pursuant to 12 0.S$.2001 § 990.5, the order stands stayed without the execution of a supersedeas bond.

110 On January 24, 20083, the Budget Board, the County Commissioners and the Assessor appealed requesting that the cause be retained. We retained the cause on March 14, 2008. On May 22, 2003, the court-ordered briefing cyele was completed.

I.

111 THE COUNTY EXCISE BOARD IS AUTHORIZED TO RESOLVE FUNDING DISPUTES RELATED TO THE VISUAL INSPECTION PROGRAM.

112 The Assessor submitted Tulsa County's proposed visual inspection plan to the Tax Commission for 2008 2006 on September 26, 2002. The plan was approved on November 14th. The County Commissioners and the Assessor argue that the statutory scheme limits the Excise Board's discretion in altering the visual inspection budget to upholding the visual inspection plan approved by the Tax Commission. The Excise Board and the School Districts contend that the statutory language does not support such an argument. We agree.

113 The Excise Board's general supervisory powers over the budgeting process are contained in 19 0.98.2001 § 1414. Under the statute, the Excise Board may strike and disregard any amounts deemed unlawful or reduce figures exceeding legally supported appropriations. Section 2820(C) of title 68 requires that county assessors submit their four-year visual inspection plans to the Tax Commission for approval. If those plans are found wanting, the Tax Commission may modify the plan to ensure the four-year cycle is completed and adequate property use samples are collected for valuation purposes. Budgeting disputes relating to the visual inspection program are specifically addressed in 68 0.$.2001 § 2822(C). The statute provides in pertinent part:

"... Any disputes as to the amount authorized to carry out the countywide visual inspection program shall be resolved by the county excise board; provided, the Oklahoma Tax Commission shall take such action as may be necessary to ensure that such amounts are used exclusively to carry out the countywide visual inspection program and that the allocation of such amounts does not serve to decrease other funds allocated to the office of county assessor." [Emphasis supplied.]

The Legislature has used clear and mandatory language in the statute stating that funding disputes shall be resolved by the Excise Board. Under the statute, the Tax Commission's role is limited to ensuring that-onee the excise board has made a funding determination-amounts allocated by the excise board to the visual inspection program are used exclusively for the program's purpose and that funds so apportioned are not utilized to decrease the assessor's general obligation funds.

T 14 Clay v. Independent School Dist. No. 1 of Tulsa County, 1997 OK 13, 935 P.2d 294, like the instant cause, involved the visual inspection program in Tulsa County. In Clay, the Court was asked to determine whether school districts were required to pay the costs of the visual inspection program as budgetary items or whether the payment could be deducted from sinking funds. Although we held that payment could not be made from the school districts' sinking funds, we determined that an assessor could compel payment by filing an original action in the District Court for a writ of mandamus during the fiscal year, and, if necessary, for the amount to be included in the school district's budget allowing for recovery outside the fiscal year.

1[ 15 Clay also involved the authority of the Excise Board to determine the Assessor's budget. The school districts challenged the Assessor's placement of twenty-two employees in the revaluation budget. The school districts did not present evidence to show the Excise Board's abuse of discretion in approving the budget or in the trial court's upholding of the decision. Therefore, the school districts were denied relief. In doing so, this Court specifically recognized that "[The Excise Board has discretion in determining the budget of the Assessor.

T 16 To adopt the County Commissioner's, the Budget Board's and the Assessor's position-that the Tax Commission's approved plan governs funding disputes-we would be required to read a nonexistent exception into the specific statutory mandate of 68 0.8.2001 § 2822(C) providing that it is the Excise Board which will resolve funding disputes relating to the visual inspection program. Additionally, we would have to ignore our decision in Clay v. Independent School Dist. No. 1 of Tulsa County, 1997 OK 13, 935 P.2d 294 recognizing the Excise Board's discretion in determining the Assessor's budget. We decline to do so. Instead, we determine that the Excise Board has discretion in resolving funding disputes concerning the visual inspection budget.

H.

117 THE EVIDENCE PRESENTED DOES NOT DEMONSTRATE AN ABUSE OF DISCRETION IN THE EXCISE BOARDS SHIFT OF PERsONNEL COSTS FROM THE VISUAL INSPECTION TO THE REGULAR BUDGET.

118 Having concluded that the Excise Board has authority to review the Assessor's budget, we must now consider whether the Excise Board acted arbitrarily and whether the trial court abused its discretion in failing to give relief to the Budget Board, the County Commissioner and the Assessor. In doing so, we review the Excise Board's actions in moving employee salaries from the visual inspection budget to the Assessor's general budget and its deletion of all valuation costs from the visual inspection budget.

119 In cutting the number of employees' salaries to be included in the visual inspection budget, the Excise Board considered the minimum number of employees recommended by the Oklahoma Tax Commission-ten field and twelve office personnel. Looking to the number of parcels requiring visual inspection under the program, the Excise Board doubled the number of recommended field personnel and kept the office personnel number at the recommended twelve. This left field personnel with the responsibility of inspecting approximately fifteen parcels per day as opposed to the twenty to twenty-five inspections the Assessor felt would be possible.

T 20 The Assessor admits that as many as four employees' salaries may have been listed for payment out of the visual inspection budget when they actually should have been paid out of the general budget. In addition, he conceded that in it's 2001 report to the Legislature, the Tax Commission estimated that Tulsa County needed twenty-two employees to carry out the visual inspection program.

121 The Budget Board, the County Commissioners and the Assessor had the burden of showing an abuse of discretion to obtain relief from the Excise Board's shift of employees from the proposed visual inspection budget to the Assessor's regular budget. They have not done so. Therefore, we affirm the trial court's decision upholding the Excise Board's shift of personnel payments from the visual inspection to the Assessor's regular budget.

IH.

122 BOTH THE STATUTORY SCHEME AND VALIDLY PROMULGATED ADMINISTRATIVE RULES CLEARLY CONTEMPLATE THAT VALUATION WILL BE INCLUDED IN THE VISUAL INSPECTION BUDGET. THEREFORE, THE EXCISE BOARD ABUSED ITS DISCRETION IN ELIMINATING ALL VALUATION COSTS FROM THE VISUAL INSPECTION BUDGET.

The Excise Board asserts that the removal of all costs related to the valuation of property from the visual inspection budget is justified under 68 0.8. Supp.2002 § 2823(B), providing that only those expenses relating to the visual inspection program, and no items which would exist in the program's absence, should be included in the program's costs. The Budget Board, County Commissioners and Assessor counter that it is clear in both the statutory language relating to the visual inspection program and in the Tax Commission's rules that the Legislature and the Tax Commission contemplate that valuation expenses should be budgeted for the visual inspection program.

1} 24 The Excise Board's argument centers on the theory that, because it is the Assessor's job to assess all real property annually, the expenses of valuation exist outside the visual inspection program and, therefore, are not chargeable to mill fund recipients pursuant to 68 0.8. Supp.2002 § 2823(B). Undoubtedly, Assessors must annually prepare assessment rolls and value the property so assessed for all properties located in their respective counties. Assessors are required to utilize the information gathered from visual inspection, using the data along with other information obtained, to make accurate estimates of fair cash values for all taxable real or personal property within the county.

125 Recognizing that it is the Assessor's duty to assess all property annually, we might be inclined to accept the argument that 68 O.S. Supp.2002 § 2828(B)-providing that all expenses which, in the judgment of the excise board exist in the absence of the visual inspection program, must be eliminated from the program's budget-requires that valuation costs be cut from the visual inspection program. However, such a result is not supported by other language in § 2823(B) allowing for the proration of expenses when attributable to the program and another source, the numerous statutory references to valuation in the visual inspection statutes, or the Tax Commission Rules specifically referring to and contemplating valuation as a part of the program.

126 Section 2823(B) of title 68 provides that the visual inspection budget shall contain only those items of expense which would not exist in absence of the program. However, the statute goes on to indicate that, where items of expense are attributable to the visual inspection program and would also exist in its absence, the items-including, but not limited to salaries, employee benefits, office supplies and equipment-may be prorated. Although inartfully drawn, § 2828(B) most certainly indicates that there are some items which will be attributable both to the Assessor's regular budget and to the visual inspection budget. When that contingency exists, § 2823(B) does not, as the Excise Board would have us determine, require that the totality of the expense be attributed to the regular budget. Instead, it allows for the cost item to be prorated between the regular and the visual inspection budgets.

T27 The Legislature defined the visual inspection program as the program required to gather data about real property from physical examination to establish the fair case values of the properties at least onee every four years and to provide similar values on like properties on an annual basis. The definition of the program itself indicates that valuation is a component of the program. Furthermore, the Legislature has provided that assessors must develop a plan detailing the resources and budget proposed to complete inspections and the valuation methodologies used to determine fair cash values. When submitting reports to the Oklahoma Tax Commission on the progress of the inspections, the assessor must include the valuation methodologies used to determine fair cash values. Physical examinations are to be conducted in a manner to provide adequate data from which to make accurate valuations and the information gathered must be relevant to the valuation methodology utilized. Clearly, the legislative scheme contemplates that valuation is to be an integral part of the visual inspection program. As part and parcel of the program and as a cost item which relates to the Assessor's other duties, expenses are chargeable both to the Assessor's regular and visual inspection budgets and should be prorated between the two pursuant to 68 0.8.2001 $ 2823(B).

128 Excise boards are required to authorize and levy amounts sufficient to carry out the countywide program of visual inspection approved by the Oklahoma Tax Commission. The Tax Commission is authorized to make and publish rules it deems necessary for the general guidance and assistance of county assessors. Those administrative rules are valid expressions of lawmaking powers having the force and effect of law. Administrative rules, like statutes, are given a sensible construction bearing in mind the evils intended to be avoided.

129 In connection with the visual inspection program, the Tax Commission has promulgated a number of rules clearly indicating that valuation of property is an integral part of the program. The visual inspection program, which an assessor presents to the Tax Commission for consideration and approval, must include: a detailed plan to complete the valuation methodology; information on the methodology to be used in determining fair cash values; and evidence sufficient to establish a representative sample from each use category to properly value all property in the county. Information and procedures related to valuation changes must be included in the visual inspection program. Administrative rules specifically provide for the inspection and appraisal of agricultural properties and the methodology by which such property rust be valued. Rules relating to multifamily income producing property and commercial/industrial property also contemplate that those properties shall be inspected, appraised and valued. Finally, the Tax Commission's rules specifically provide that information concerning the valuation methodology and the valuation process shall be listed as a part of the visual inspection plan.

130 Although the statutory language utilized in 68 0.98.2001 2823(B) does not explicitly provide the budgetary items which may be included in the visual inspection budget, it demonstrates the legislative intent to prorate some cost items between the Assessor's visual inspection and regular budgets. Other provisions of the statutory scheme and numerous references to valuation in the lawfully enacted rules of the Tax Commission, clearly indicate that the Legislature and the Tax Commission intend for valuation to be a part of the program. Therefore, we determine that the Excise Board abused its discretion when it eliminated all valuation costs from the Assessor's visual inspection budget.

CONCLUSION

1 31 In holding that the Excise Board has discretion in resolving funding disputes concerning the visual inspection budget and that items of valuation may be included in costs assessed against mill fund recipients, we are not unaware of, or without sympathy, for school districts which have been adversely impacted by the budgetary crisis. It is a sad day when school administrators must choose between providing teachers of core subjects and the creative arts, janitors, bus drivers or nutritionists. However, the same financial squeeze is being felt at all levels of government, including in the counties.

132 Despite our sympathies, we may not sit as a super legislature, ignore our own jurisprudence and the statutory and rule-based language indicating that, although Excise Boards have authority to adjust items between an Assessor's regular and visual inspection budgets, they may not eliminate an item which both the statutory scheme and validly adopted administrative rules make clear were intended to be included in the visual inspection program. Therefore, we hold that: 1) the Excise Board has discretion in resolving funding disputes concerning the visual inspection budget. Our determination is supported by: the clear, explicit, mandatory and unmistakable language of 68 0.8.2001 § 2822(C) authorizing the Excise Board to resolve funding disputes related to the visual inspection program; and Clay v. Independent School Dist. No. 1 of Tulsa County, 1997 OK 13, ¶ 31, 935 P.2d 294, providing that the Excise Board has authority to resolve funding disputes concerning the visual inspection budget.; 2) the evidence presented does not demonstrate an abuse of discretion in the Excise Board's shift of personnel costs from the visual inspection to the regular budget; and 3) because both the statutory scheme and validly promulgated administrative rules clearly contemplate that valuation will be included in the visual inspection budget, the Excise Board abused its discretion in eliminating all valuation costs from the visual inspection budget.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

WATT, C.J., OPALA, V.C.J., HODGES, LAVENDER, HARGRAVE, BOUDREAU, WINCHESTER, JJ., concur.

SUMMERS, J., not participating.

      . Counties come within the County Budget Act (Budget Act), 19 0.$.2001 § 1401, et seq. when a county's governing body elects to come under and comply with the Budget Act's provisions and requirements. 19 0.8.2001 § 1403.

      . Title 19 0.9.2001 § 1408.

      . Title 19 0.$.2001 § 1414 provides in pertinent part:
      "A. The county excise board shall examine the county budgets. The excise board may take the following actions on the budgets:
      1. For any items or amounts which are not authorized by law or which may be contrary to law, the unlawful amounts or items shall be stricken and disregarded;
      2. Any amount which exceeds the lawful amount authorized by law shall be reduced to the extent authorized by law ..."

      . Title 68 0.$.2001 § 2820 provides in pertinent part:
      "A. Each county assessor shall conduct a comprehensive program for the individual visual inspection of all taxable property within his respective county. Each assessor shall thereafter maintain an active and systematic program of visual inspection on a continuous basis and shall establish an inspection schedule which will result in the individual visual inspection of all taxable property within the county at least once each four (4) years.... C. Prior to the beginning of the first visual inspection cycle and each subsequent visual inspection cycle, the county assessor shall develop a plan that details the number of real property parcels to be inspected in each year of the cycle by use category, geographic area or other basis, the resources and budget proposed to complete the inspections and the valuation methodology to be used in determining the fair cash value of the real property and improvements thereon. The plan shall be adequate to ensure the visual inspection of all parcels of real property within the county at least once each four (4) years. The plan shall also be adequate to ensure that the information collected from the visual inspection of real property each year is sufficient to establish a representative sample from each use category in order to conduct the proper valuation of all taxable property within each use category in order to conduct the proper valuation of all taxable property within each use category by means of an accepted standard for mass appraisal practice. The county assessor shall submit the proposed plan to the Oklahoma Tax Commission by the first working day in October preceding the beginning of the four-year cycle. The Oklahoma Tax Commission shall either approve the plan if the plan and resources are adequate to complete the cycle and if the plan will result in a representative sample from each use category in order to value all taxable property each year or shall correct and modify the plan in order to establish a program for visual inspection that will be completed by the end of the cycle and that will provide a representative sample from each use category in order to value all taxable property each year. An approved plan shall be made for each county as of the beginning date of each cycle and a copy of such plan shall be filed with the Oklahoma Tax Commission.
      D. Each year the county assessor shall submit a progress report to the Oklahoma Tax Commission indicating the number of real property parcels inspected by use category, geographic area or other basis, the resources and budget expended in the last completed fiscal year and the valuation methodology used to determine fair cash values of the real property and improvements. The Oklahoma Tax Commission shall correct and modify any visual inspection plan during the four-year cycle if progress reports indicate that inspection of real property parcels will not be completed or will be performed in violation of legal requirements for such inspections. The county assessor shall be required to complete the four-year cycle in accordance with such plan as corrected and modified...."
      Title 68 0.$.2001 § 2822 provides:
      "A. Each county assessor in budgets submitted to the county excise board or county budget board shall make adequate provision to effect countywide visual inspections of real property during the four-year cycle.
      B. Each jurisdiction within a county which receives revenue from an ad valorem mill rate shall receive a copy of the budget for the countywide visual inspection program for that county. The county excise board or county budget board shall notify all such jurisdictions of any meetings at which discussion or action on the budget for the comprehensive program of visual inspections is or may be on the agenda. Such jurisdictions shall have the opportunity to appear before the county excise board or the county budget board, prior to approval of such budgets, to provide testimony, comments, information and documentation concerning the budgets submitted by the county assessor pursuant to subsection A of this section.
      C. The several county excise and budget boards, in passing upon budgets submitted by the several assessors, shall authorize and levy amounts which will suffice to carry out the countywide visual inspection program as approved by the Oklahoma Tax Commission under Section 2820 of this title. Such amounts shall be separate from other funds allocated to the office of county assessor and shall be used exclusively to carry out the countywide visual inspection program. The allocation of such amount shall not serve to decrease other funds allocated to the office of county assessor by the county excise board or the county budget board. Any disputes as to the amount authorized to carry out the countywide visual inspection program shall be resolved by the county excise board; provided, the Oklahoma Tax Commission shall take such action as may be necessary to ensure that such amounts are used exclusively to carry out the countywide visual inspection program and that the allocation of such amounts does not serve to decrease other funds allocated to the office of the county assessor."

      . Title 68 0.$.2001 § 2822(C), see note 4, supra.

      . Mill rate recipients may appear before the excise board or the county budget board to provide testimony, comments, information and documentation concerning budgets submitted by the county assessor. Title 68 O.S. § 2822(B), see note 4, supra.

      . Defendant's Exhibit 1, leiter of June 21, 2002, from Byron Burke to Jack Gordon.

      . Transcript of proceedings, December 6, 2002, Byron Burke testifying at p. 125.

      . Title 28 O.S. Supp.2002 § 2823 provides in pertinent part:
      "A. For each fiscal year, the cost of the comprehensive program of visual inspections for real property and the cost of physical inspections of personal property shall be paid by appropriate warrants from those who receive the revenues of the mill rates levied on the property of the county as prescribed by this section. School districts are hereby authorized to pay such costs from revenues accruing to their building funds. The county assessor shall prepare a budget for the comprehensive program of visual inspections for each property and the cost of physical inspections of personal property and file such budget with the county excise board or county budget board. B. The county excise board or county budget board shall apportion such cost among the various recipients of revenues from the mill rates levied, including the county, all cities and towns, all school districts, all sinking funds of such recipients, and all jurisdictions specified in subsection D of this section, in the ratio which each recipient's total tax collection authorized from its mill rates levied for the preceding year bears to the total tax collection authorized of all recipients from all their mill rates levied for the preceding year. The costs shall include only those expenses directly attributable to the visual inspection program and those expenses directly attributable to physical inspections of personal property and shall not include any expenses of the office of the county assessor which, in the judgment of the county excise board or county budget board, are expenses of county assessor's office which would exist in the absence of such program or in the absence of physical inspection of personal property. Expenses that are attributable both to the visual inspection program and physical inspection of personal property, and which would exist in the absence of such program or inspection, including but not limited to salaries, employee benefits, office supplies and equipment, may be prorated; provided, no portion of the salary of the county assessor shall be included in such costs.
      C. Upon receipt of the billing statement provided for in subsections D and E of this section by each such recipient, the mill rates to be established by the board for each such recipient for the current year shall include and be based upon such amounts and shall constitute an appropriation of such amounts to the county assessor for expenditure for the expenses of administering the visual inspection program each year. In the case of a sinking fund of a recipient, if, after approving its budget, the governing body of a recipient notifies the board in writing that there are no funds appropriated to pay the amount of the billing statement for such sinking fund, such notice shall constitute conclusive evidence of a financial obligation of the recipient as it relates to such sinking fund. The board may seek a judgment for the amount of such obligation and court costs in the district court of the county in which the board is located.
      D. The county assessor shall render a statement to. each of the jurisdictions within the county which receive revenue from an ad valo-rem mill rate. Such statement shall include the following information:
      1. The current fiscal year in which the charge has been incorporated in the jurisdiction's budget;
      2. All jurisdictions receiving statements from the county assessor, the mill rate for each in the previous year, and the proportion of each to the combined mill rates of all jurisdictions within the county for the previous year. The proportions specified in this paragraph should equal a total of one hundred percent (100%);
      3. The charge for the entity receiving the statement as well as the charge for each jurisdiction of the county based upon the proportions specified in paragraph 2 of this subsection. The total of all current year charges for all county jurisdictions shall equal the total visual inspection program budget for the current fiscal year;
      4. The amount of the total budget for the office of the county assessor and the percentage that visual inspection program expenses are of such total budget; and
      5. A copy of the County Budget Visual Inspection Account and a brief description of the areas to be visually inspected for the current fiscal year, consistent with the plan on file with the Oklahoma Tax Commission pursuant to Section 2820 of this title. ..."
      Section 2823 was amended effective June 6, 2002.

      . Transcript of proceedings, Byron Burke testifying at p. 131.

      . Transcript of proceedings, December 6, 2002, Byron Burke testifying at p. 131. The Budget Board, County Commissioners and Assessor argue in the brief in chief filed on April 21, 2003, that salaries were actually prorated and that salaries followed function. However, the transcript of proceedings, December 6, 2002, testimony of the Assessor provides ai p. 84 that salary payments did not follow the employees' functions. The possibility that different individuals might consider the same facts and draw differing inferences is one of the reasons that review in this Court is limited to the issues shown by the record to have actually been presented and tendered to the trial court. Kincaid v. Black Angus Motel, Inc., 1999 OK 54, ¶ 23, 983 P.2d 1016; Hughey v. Grand River Dam Auth., 1995 OK 56, ¶ 9, 897 P.2d 1138.

      . Defendant's Exhibit 3, letter of June 27, 2002, from Jack F. Gordon to the Excise Board members.

      . Title 68 0.$.2001 § 2820(C), see note 4, supra.

      . Okla. Admin Code 710:10-10-1 provides in pertinent part:
      "... (b) Each county assessor shall submit a visual inspection plan, which conforms to the requirements described in 68 O0.5.1991, §§ 2820(c) [sic] and the provisions of this Sub-chapter, to the Ad Valorem Division of the Oklahoma Tax Commission by the first working day in October preceding the January 1 beginning of a new four-year cycle. The county shall keep a copy of the approved visual inspection plan and any amendment(s) on file for the current four year-cycle and shall retain the plan for five years after the last year of this cycle...."
      The Tax Commission is authorized to make and publish rules pursuant to 68 0.$.2001 § 2825.

      . The County Assessor received a letter on November 18, 2002, indicating that the Tax Commission had received and approved the four-year visual inspection plan.

      . Transcript of proceedings, December 6, 2002, Byron Burke testifying at p. 145. The Tax Commission approved visual inspection plans for both Oklahoma and Tulsa counties. It is instructive that the plan approved for Tulsa County was at twice the budget amount of the Oklahoma County plan despite the fact that Oklahoma County must inspect more properties annually than Tulsa County inspects. See, transcript of proceedings, December 6, 2002, Byron Burke testifying at p. 147.

      . Plaintiff's exhibit 6, apparently a document prepared for the Excuse Board for consideration on July 9, 2002.

      . Minutes, Excise Board Meeting, July 9, 2002. Transcript of proceedings, December 6, 2002, Jack Gordon testifying at pp. 47-48.

      . Transcript of proceedings, December 6, 2002, Jack Gordon testifying at p. 43.

      . The statutory visual inspection program is a comprehensive statewide regime for gathering data about real property from its physical examination to establish the fair cash values of properties so inspected at least once every four years and the fair cash values of similar properties on an annual basis. Title 68 0.$.2001 § 2802 provides in pertinent part:
      "As used in Section 2801 et seq. of this title: ... 30. 'Visual inspection program' means the program required in order to gather data about real property from physical examination of the property and improvements in order to establish the fair cash values of properties so inspected at least once each four (4) years and the fair cash values of similar properties on an annual basis...."
      Title 68 0.$.2001 § 2821 provides in pertinent part:
      "A. Each county assessor shall cause real property to be physically inspected as part of the visual inspection cycle and shall require such examination as will provide adequate data from which to make accurate valuations.
      B. The information gathered from the physical inspection shall be relevant to the type of property involved, its use category, the valuation methodology to be used for the property, whether the methodology consists of the cost approach, an income and expense approach or sales comparison approach, and shall be complete enough in order to establish the fair cash value of the property in accordance with accepted standards for mass appraisal practice...."
      See also, 68 O0.$.2001 § 2820(A), see note 4, supra.
      At the beginning of each four-year cycle, assessors must develop and submit to the Tax Commission a plan detailing: the number of real property parcels inspected each year; the proposed resources and budget to complete the inspections; and the valuation methodology utilized to detail fair cash values. Title 68 0.S.2001 § 2820(C), see note 4, supra. County assessors must make adequate provision for the visual inspection project and submit it to the county budget board or excise board. Title 68 0.$.2001 § 2823(A), see note 9, supra. The visual inspection budget is prepared separately from the assessor's general budget. Amounts allocated to the visual inspection program are used exclusively to carry out the program. Title 68 0.$.2001 § 2822(C), see note 4, supra. The cost of the visual inspection program is apportioned among the various recipients of revenues from the mill rates levied-including all school districts. However, the assessed costs may include only those expenses directly attributable to the visual inspection program. The costs shall not include any expenses of the office of the county assessor which, in the judgment of the county excise board or county budget board, are expenses of the assessor's office existing in the absence of the program. Expenses which are attributable to the visual inspection program and which would exist without the program, i.e. salaries, employee benefits, office supplies and equipment, may be prorated between the assessor's two budgets. Nevertheless, no portion of the assessor's salary may be included in the cost of the visual inspection program. Title 68 0.$.2002 2823(B), see note 9, supra.

      . The Budget Board, County Commissioners and Assessor contend in the reply brief filed on May 22, 2003, that they have not argued that the Tax Commission's approval of the visual inspection plan makes the budget for that plan immune from revision by the Excise Board. The contention is unconvincing in light of statements made in the same parties' brief in chief filed on April 21, 2003, providing in pertinent part:

        at p. 2 "... In Plaintiffs' view, funding the Tax Commission-approved program is the standard against which the actions of the parties must be measured...." [Emphasis in original.]
      at. p. 8 "... PROPOSITION I AUTHORITIES MUST FUND THE VISUAL INSPECTION PROGRAM APPROVED BY THE TAX COMMISSION. _..." [Emphasis in original.]

      . In determining whether a statute applies to a given set of facts, we focus on legislative intent [ Nealis v. Baird, 1999 OK 98, ¶ 55, 996 P.2d 438; Cooper v. State ex rel. Dept. of Public Safety, 1996 OK 49, ¶ 10, 917 P.2d 466] which controls statutory interpretation. Intent is ascertained from the whole act in light of its general purpose and objective [Keating v. Edmondson, 2001 OK 110, ¶ 8, 37 P.3d 882; McSorley v. Hertz Corp., 1994 OK 120, ¶ 6, 885 P.2d 1343; Oglesby v. Liberty Mut. Ins. Co., 1992 OK 61, ¶ 8, 832 P.2d 834] considering relevant provisions together to give full force and effect to each. Haney v. State, 1993 OK 41, ¶ 5, 850 P.2d 1087; Public Serv. Co. of Oklahoma v. State ex rel. Corp. Comm'n, 1992 OK 153, ¶ 8, 842 P.2d 750. When a special statute clearly includes the matter in controversy, the special statute controls over a statute of general applicability. Davis v. GHS Health Maintenance, 2001 OK 3, ¶ 10, 22 P.3d 1204; Tulsa County Deputy Sheriff's Fraternal Order of Police, Lodge No. 188 v. Board of County Comm'rs of Tulsa County, 1988 OK 44, ¶ 13, 959 P.2d 979; Carter v. City of Oklahoma City, 1993 OK 134, ¶ 11, 862 P.2d 77. The Court presumes that the Legislature expressed its intent and that it intended what it expressed. Minie v. Hudson, 1997 OK 26, ¶ 7, 934 P.2d 1082; Fuller v. Odom, 1987 OK 64, ¶ 4, 741 P.2d 449; Darnell v. Chrysler Corp., 1984 OK 57, ¶ 5, 687 P.2d 132. Sta-utes are interpreted to attain that purpose and end [Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶ 5, 901 P.2d 800, cert. denied, 516 U.S. 1029, 116 S.Ct. 674, 133 L.Ed.2d 523 (1995); Wilson v. State of Oklahoma ex rel. Oklahoma Tax Comm'n, 1979 OK 62, ¶ 5, 594 P.2d 1210; Affiliated Mgt. Corp. v. Oklahoma Tax Comm'n, 1977 OK 183, 570 P.2d 335] championing the broad public policy purposes underlying them. Haggard v. Haggard, 1998 OK 124, ¶ 1, 975 P.2d 439; Price v. Southwestern Bell Tel. Co., 1991 OK. 50, ¶ 7, 812 P.2d 1355. Only where the legislative intent cannot be ascertained from the statutory language, Le. in cases of ambiguity or conflict, are rules of statutory construction employed. State ex rel. Dept. of Human Serv. v. Colclazier, 1997 OK 134, ¶ 9, 950 P.2d 824; Matter of Estate of Flowers, 1993 OK 19, ¶ 11, 848 P.2d 1146.

      . Title 19 0.$.2001 § 1414 provides in pertinent part:
      "A. The county excise board shall examine the county budgets. The excise board may take the following actions on the budgets.
      1. For any items or amounts which are not authorized by law or which may be contrary to law, the unlawful amounts or items shall be stricken and disrégarded;
      2. Any amount which exceeds the lawful amount authorized by law shall be reduced to the extent authorized by law ..."

      . Title 68 0.$.2001 2820(C), see note 4, supra.

      . Generally, when the Legislature uses the term "shall", it signifies a mandatory directive or command. Keating v. Edmondson, see note 22 at ¶ 13, supra; United States through Farmers Home Admin. v. Hobbs, 1996 OK 77, ¶ 7, 921 P.2d 338; State ex rel. Macy v. Freeman, 1991 OK 59, 18, 814 P.2d 147; Forest Oil Corp. v. Corporation Comm'n, 1990 OK. 58, ¶ 26, 807 P.2d 774. Nevertheless, the term can be used permissively. Minie v. Hudson, 1997 OK 26, ¶ 7, 934 P.2d 1082; Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, ¶ 0, 619 P.2d 869.

      . Clay v. Independent School Dist. No. 1 of Tulsa County, 1997 OK 13, ¶ 31, 935 P.2d 294. See also, Humphrey v. Denney, 1988 OK 69, ¶ 15, 757 P.2d 833 [An assessor's hiring of personal is subject to the approval by the excise board in its annual budget review.]. The time-line requirements of the budgetary process as compared with the approval process before the Oklahoma Tax Commission also support a finding that it is the Excise Board, not the Tax Commission, which is the entity to approve budgetary requirements. County budget boards are required to complete budgets for upcoming fiscal years at least thirty days before the beginning of each fiscal year-July Ist. Title 19 0.$.2001 § 1410. After conducting public hearings, [Title 19 0.8. 2001 § 1412], the County Budget Board must adopt a budget no less than seven days prior to the beginning of the budget year. Title 19 O.S. 2001 1413. Pursuant to 68 0.$.2001 § 2820(C), see note 4, supra, the visual inspection plan for Tulsa County for the years 2003 2006 was not due to be filed with the Tax Commission until September, 30, 2002-a date well beyond the time frame within which the County Budget Board was required to complete preparation of the budget for the Assessor's office. Had the Legislature intended for the Tax Commission to control the visual inspection budget, undoubtedly it would have required approval of the proposal prior to, rather than a date some three months following, the scheduled completion of the county budgetary process.

      . Title 68 0.$.2001 § 2822(C), see note 4, supra.

      . Keating v. Edmondson, see note 25 at ¶ 14, supra. See also, Chamberlain v. American Airlines, 1987 OK 62, ¶ 15, 740 P.2d 717; City of Bethany v. District Court of Oklahoma County, 1948 OK 38, ¶ 16, 191 P.2d 187; City of Bristow v. Groom, 1944 OK 223, ¶ 11, 151 P.2d 936.

      . See also, 19 0.$.2001 § 1414, note 3, supra.

      . Clay v. Independent School Dist. No. 1 of Tulsa County, see note 26, supra.

      . The County Commissioners, Budget Board and Assessor urge us to determine whether the Excise Board abused its discretion in "building a budget" rather than merely striking unlawful amounts from the visual inspection budget pursuant to 19 0.S.2001 § 1414, see note 3, supra. Whether the Excise Board "built" the budget or, through its inquiries concerning items which could lawfully be included in the visual inspection budget, struck unlawful amounts is a distinction without a difference. Furthermore, today, we decline to delineate any and all items which may be included in the visual inspection budget. From the materials before this Court and from the record presented to the trial court, it appears that central issues here concern the shifting of employees from one budget to the other and the elimination of valuation costs. It is also apparent that at least some of the items the County Commissioners, Budget Board and Assessor ask us to determine as valid items of the visual inspection budget may have been included in the final budget adopted by the Excise Board. See, transcript of proceedings, December 6, 2002, Byron Burke testifying at p. 151. Additionally, the County Commissioners, Budget Board and Assessor ask us to determine that the trial court erred in its refusal to allow the amendment of their petition to include a request that the school districts be required to include valuation expenses in their budgets. Although we recognize that amendments are to be liberally allowed when justice so requires [Title 12 0.$.2001 § 2013], we are beyond a time period when an amendment presumably would aid the Budget Board, County Commissioners and Assessor. This Court does not issue advisory opinions or answer hypothetical questions. Dank v. Benson, 2000 OK 40, ¶ 7, 5 P.3d 1088; Keating v. Johnson, 1996 OK 61, ¶ 0, 918 P.2d 51; Application of Fun Country Development Auth., 1977 OK 138, ¶ 3, 566 P.2d 1167. Furthermore, we are bound by the record presented for review. Heirshberg v. Slater, 1992 OK 84, ¶ 5, 833 P.2d 269; Snyder v. Smith Welding & Fabrication, 1986 OK 35, ¶ 1, 746 P.2d 168 [Supplemental opinion on rehearing]. Finally, the County Commissioners, Budget Board and Assessor had the burden of showing that the trial court abused its discretion in declining to award relief. Clay v. Independent School Dist. No. 1 of Tulsa County, see note 26, supra; Beatrice Foods Co. v. City of Okmulgee, 1963 OK 48, ¶ 2, 381 P.2d $63. Furthermore, we note that the indication in their brief in chief that the plaintiffs/appellants sought amendment before a response was filed is misleading. The record reveals that the motion to amend was on November 27, 2002, while the answer was filed on November 7, 2002.

      . Transcript of proceedings, Byron Burke testifying at pp. 147-48.

      . Transcript of proceedings, December 6, 2002, Byron Burke testifying at pp. 149-50.

      . Brief in chief of plaintiffs/appellants, filed April 21, 2003, at pp. 26-27.

      . Clay v. Independent School Dist. No. 1 of Tulsa County, see note 26, supra; Beatrice Foods Co. v. City of Okmulgee, see note 31, supra. The same evidentiary burden existed before the trial court. Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 15, 701 P.2d 754; Summey v. Tisdale, 1982 OK 133, ¶ 18, 658 P.2d 464.

      . Title 68 O.S. Supp.2002 § 2823(B), see note 9, supra.

      . Id.

      . Title 68 0.$.2001 § 2817(A)(B); 68 0.S.2001 § 2842(A).

      . Title 68 0.8. Supp.2003 § 2817.

      . Title 68 0.$.2001 § 2829(C) provides:
      '"'Each county assessor shall utilize the information gathered from the visual inspection of real property conducted during each year of the four-year cycle for such inspections and shall conduct such statistical calculations using the data so acquired together with sales price or other information available as may be required to make accurate estimates of fair cash values for all taxable real or personal property within the county each year. The results of such calculations shall be recorded on the assessment roll of the county on an annual basis in order to reflect any increase or decrease in the fair cash value of any property in any year.

      . Title 68 O.S. Supp.2002 § 2823(B), see note 9, supra.

      . Title 68 0.S$.2001 § 2802(30), see note 20, supra.

      . Title 68 0.$.2001 § 2820(C), see note 4, supra.

      . Title 68 0.$.2001 § 2820(D), see note 4, supra.

      . Title 68 0.$.2001 § 2821(A) providing:
      ''Each county assessor shall cause real property to be physically inspected as part of the visual inspection cycle and shall require such examination as will provide adequate data from which to make accurate valuations."

      . Title 68 0.$.2001 § 2821(B) providing in pertinent part:
      'The information gathered from the physical inspection shall be relevant to the type of property involved, its use category, the valuation methodology to be used for the property, whether the methodology consists of the cost approach, an income and expense approach or sales comparison approach ..."

      . Title 68 0.$.2001 2823(B), see note 9, supra.

      . Title 68 0.S.2001 § 2822(C), see note 4, supra.

      . Title 68 0.S.2001 § 2825.

      . Indiana Nat'l Bank v. State ex rel. Dept. of Human Serv., 1993 OK 101, ¶ 13, 857 P.2d 53.

      . Oklahoma Alcoholic Beverage Control Bd. v. Burris, 1980 OK 58, ¶ 13, 626 P.2d 1316, 20 A.L.R.Ath 593.

      . Oklahoma Administrative Code § 710:10-10-3 (2000) providing in pertinent part:
      "(a) Prior to the beginning of the first visual inspection cycle and each subsequent visual inspection cycle, the county assessor shall develop a detailed visual inspection plan ... which shall contain the comprehensive elements set out in (1) through (9) of this Section. ... (5) The county assessor shall propose a detailed plan to complete the valuation methodology to be used.
      (6) The county assessor shall develop a plan that details the methodology to be used in determining the fair cash value of the real property and improvements thereon.
      ... (8) The plan shall also be adequate to ensure that the information collected from the visual inspection of real property each year is sufficient to establish a representative sample from each use category in order to conduct the proper valuation of all taxable property within each use category.
      (9) The plan shall also be adequate to ensure that the information collected from the visual inspection of real property each year is sufficient in order to conduct the proper valuation of all taxable property ..."

      . Oklahoma Administrative Code § 710:10-10-28 (2000) providing in pertinent part:
      "(a) Information and procedures related to valuation changes shall be included in the visual inspection plan...."

      . Oklahoma Administrative Code § 710:10-10-27 (2000) providing in pertinent part:
      "(a) All agricultural properties shall be in-specied and appraised ... and shall be listed
      in the visual inspection plan.... (b) The use value of agricultural land shall be based on the income capitalization approach using cash rent....
      (c) Agricultural land shall be valued according to the specification set forth by 68 0.$.1991, § 2817..."

      . Oklahoma Admin. Code 710:10-10-25 (2000) and 710:10-10-26 (2000), respectively.

      . Oklahoma Admin. Code 710:10-10-21 (2000) providing in pertinent part:
      (a) The information set out in this Section, related to valuation methodology and the valuation process, shall be listed in the visual inspection plan...."

      . Title 68 0.$.2001 § 2823(B), see note 9, supra.

      . Comer v. Preferred Risk Mutual Ins. Co., 1999 OK 86, ¶ 20, 991 P.2d 1006; City of Hugo v. State ex rel. Public Employees Relations Bd., 1994 OK 134, 123, 886 P.2d 485, Toxic Waste Impact Group, Inc. v. Leavitt, 1988 OK. 20, ¶ 10, 755 P.2d 626.