author: ORME, Judge:

text:
    2000 Utah Ct. App. 189
    STATE of Utah, in the interest of V.T., a person under eighteen years of age. State of Utah, Plaintiff and Appellee, v. V.T., a minor, Defendant and Appellant.
    No. 990380-CA.
    Court of Appeals of Utah.
    June 22, 2000.

      Joel Berrett, Roosevelt, for Appellant.
    Jan Graham, Atty. Gen., and Karen A. Klueznik, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before Judges BENCH, BILLINGS, and ORME.
   OPINION

ORME, Judge:

1[ 1 V.T. appeals the juvenile court's adjudication that by his continued presence during the crime, he was an accomplice to theft, a class A misdemeanor, in violation of Utah Code Ann. § 76-6-404 (1999). We reverse.

BACKGROUND

1 2 On June 12, 1998, V.T. and two friends, "Moose" and Joey, went to a relative's apartment to avoid being picked up by police for curfew violations. The boys ended up spending the entire night at the apartment.

13 The next morning, the relative briefly left to run an errand, while the boys remained in her apartment. She returned about fifteen minutes later to find the boys gone, the door to her apartment wide open, and two of her guns missing. She immediately went in search of the group and found them hanging out together near her apartment complex. She confronted the boys about the theft of her guns and demanded that they return them to her. When they failed to do so, she reported the theft to the police.

T4 Two days after the theft of her guns, she discovered that her camcorder, which had been in the apartment when the boys visited, was also missing, and she immediately reported its theft to the police. The police found the camcorder at a local pawn shop, where it had been pawned on the same day the guns were stolen.

5 Still inside the camcorder was a videotape featuring footage of V.T., Moose, and Joey. The tape included a segment where Moose telephoned a friend, in V.T.'s presence, and discussed pawning the stolen camcorder. V.T. never spoke or gestured during any of this footage.

16 V.T. was eventually picked up by the police, while riding in a car with Moose. V.T. was charged with two counts of theft of a firearm; one count of theft, relating to the camcorder; and, for having initially given the police a phony name, one count of giving false information to a peace officer, a violation of Utah Code Ann. § 76-8-507 (1999).

T7 The juvenile court held hearings on September 22, 1998 and January 29, 1999. V.T. was tried under an accomplice theory on the three theft charges. The court found that V.T. had committed class A misdemean- or theft of the camcorder and had provided false information to a peace officer. The juvenile court summarized the basis for its adjudication concerning the camcorder theft as follows:

I am going to find him guilty and I think the additional information that I have here that brings me peace of mind is that he was present a second time, he was shown on the cameorder when the camcorder was being handled at a time when he could've distanced himself from the activity. Not only do I have him there once with the group ... on the second incident ... there is no gap on him being there when [the camcorder] is being handled and talked about and used in the confines of a room with a group of friends and those who were involved in this illegal activity.

V.T. appeals his adjudication concerning the theft of the camcorder.

ISSUE AND STANDARD OF REVIEW

18 The sole issue presented by V.T. is whether there was sufficient evidence to support the adjudication that he was an accomplice in the theft of the camcorder. When reviewing a juvenile court's decision for sufficiency of the evidence, we must consider all the facts, and all reasonable inferences which may be drawn therefrom, in a light most favorable to the juvenile court's determination, see State v. Layman, 1999 UT 79, ¶ 12, 985 P.2d 911, reversing only when it is "against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made." State v. Walker, 743 P.2d 191, 193 (Utah 1987).

ANALYSIS

19 Utah's accomplice liability statute, Utah Code Ann. § 76-2-202 (1999), provides:

Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.

As with any other crime, the State must prove the elements of accomplice liability beyond a reasonable doubt. See State v. Lopes, 1999 UT 24, ¶ 11, 980 P.2d 191; State v. Labrum, 959 P.2d 120, 123 (Utah Ct.App.1998).

10 The State argues that V.T.'s continued presence during the theft and subsequent phone conversation about selling the camcorder, coupled with his friendship with the other two boys, is enough evidence to support the inference that he had "encouraged" the other two in committing the theft and that he is therefore an accomplice to the crime. Black's Law Dictionary defines encourage as: "[tlo instigate; to incite to action; to embolden; to help." Black's Law Dictionary 547 (ith ed.1999). The plain meaning of the word confirms that to encourage others to take criminal action requires some form of active behavior, or at least verbalization, by a defendant. Passive behavior, such as mere presence-even continuous presence-absent evidence that the defendant affirmatively did something to instigate, incite, embolden, or help others in committing a crime is not enough to qualify as "encouragement" as that term is commonly used.

T11 The case law in Utah is consistent with this definition: " 'Mere presence, or even prior knowledge, does not make one an accomplice'" to a crime absent evidence showing-beyond a reasonable doubt-that defendant "advise[d], instigate[d], encourage[d], or assist[ed] in perpetuation of the crime." Labrum, 959 P.2d at 123 (quoting State v. Kerekes, 622 P.2d 1161, 1166 (Utah 1980).

112 In Lobrum, the defendant was convicted of attempted eriminal homicide due to his participation in a drive-by shooting. See 959 P.2d at 122. The juvenile court gave defendant an enhanced sentence, based on its finding that defendant had acted in concert with two or more persons in committing the shooting and was therefore subject to the "group crime enhancement" contained in Utah Code Ann. § T6-38-203.1(1)(a) & (b) (1999). See Labrum III, 959 P.2d at 122. For purposes of that statute, "in concert" means that the other individuals who participated with defendant would be criminally liable for the offense as accomplices under Section 76-2-202. See Utah Code Ann. § 76-3-208.1(1)(b) (1999).

{13 On appeal, we held that there was insufficient evidence to find that Behunin, one of the passengers in the car who defendant was alleged to have acted "in concert" with, would be guilty if tried under an accomplice liability theory for the shooting. See Labrum III, 959 P.2d at 123-24. The juvenile court's findings supporting the group crime enhancement showed only that Behu-nin had been present before, during, and after the shooting and later was in defendant's presence when he boasted to a third party about the shooting. See id. Although Behunin apparently endorsed the boasting, we held these findings were insufficient to show that he solicited, requested, commanded, encouraged, or intentionally aided Lab-rum in committing the shooting. See id.

{ 14 Two other Utah cases further illuminate the level of participation necessary to establish criminal lability as an accomplice. In State v. Smith, 706 P.2d 1052 (Utah 1985), our Supreme Court concluded there was sufficient evidence to convict Smith of aggravated robbery and theft based on a theory of accomplice liability. See id. at 1056-57. But in that case, there was testimony that Smith had recruited one of his co-defendants to aid in the robbery, that he selected the house to rob, and that he provided and drove the getaway car to and from the crime scene. See id. at 1056. This testimony was sufficient to show that Smith had solicited and intentionally aided his co-defendants in committing the robbery. See id. at 1056-57.

15 In State v. Webb, 790 P.2d 65 (Utah Ct.App.1990), we upheld Webb's conviction for aggravated robbery of a jewelry store under an accomplice theory. See id. at 84-85. Although the evidence was conflicting, there was testimony that Webb had solicited a co-defendant to steal the getaway car and give it to him, that Webb said he knew someone who would sell the stolen goods for them, and that he had sorted through the stolen jewelry with his partners-in-crime at a friend's house. See id. This evidence was sufficient to find that Webb had "solicited, requested, commanded, encouraged, or intentionally aided" in the robbery. Id. at 85.

116 These three cases make it clear that something more than a defendant's passive presence during the planning and commission of a crime is required to constitute "encouragement" so as to impose accomplice liability in Utah,. There must be evidence showing that the defendant engaged in some active behavior, or at least speech or other expression, that served to assist or encourage the primary perpetrators in committing the crime.

T17 The juvenile court's conclusion that V.T. was an accomplice to the camcorder theft was not supported by the evidence in this case. No evidence whatsoever was produced indicating V.T. had encouraged-much less that he solicited, requested, commanded or intentionally aided-the other two boys in the theft of the camcorder.

118 Instead, the evidence, read in the light most favorable to the juvenile court's decision, shows only that V.T. was present with the other two youths, albeit at multiple times: when the camcorder was stolen; when they were confronted about the theft of the guns; and when the plan to pawn the camcorder was being discussed by Moose. In sharp contrast to Smith and Webb, however, there is no indication in the record that V.T. had instigated, incited to action, emboldened, helped, or advised the other two boys in planning or committing the theft. The cireumstantial evidence presented in this case, which only shows V.T.'s continuous presence during the events surrounding the theft, is sufficient for finding only that V.T. was a witness-not an accomplice-to the theft of the camcorder. See Labrum III, 959 P.2d at 123-24. And knowledge of a theft, without more, does not make one an accomplice. See People v. Taylor, 219 Ill.App.3d 47, 161 Ill.Dec. 835, 579 N.E.2d 383, 385, appeal denied, 142 Ill.2d 663, 164 Ill.Dec. 926, 584 N.E.2d 138 (1991).

T 19 The juvenile court's conclusion of accomplice liability was heavily influenced by the videotape footage of V.T., who at the time of the filming was necessarily in the presence of the cameorder, after it had been stolen. In fact, the court found that even though there was not enough evidence presented to find that V.T. was an accomplice in the theft of the guns, which were stolen at the same time and from the same apartment as the camcorder, the videotape footage was enough to find that V.T. was an accomplice to the camcorder theft. The juvenile court's heavy reliance on this footage shows that it made its conclusion of accomplice liability based not on any evidence that V.T. had encouraged the others to steal the cameorder, as required by section 76-2-202, but instead on the sole fact that V.T. allowed himself to remain in the company of Joey, Moose, and the stolen camcorder before, during, and immediately after the theft. As explained above, this "guilt by association" theory is not a basis on which accomplice liability can be premised under Utah law.

CONCLUSION

1 20 The facts in this case prove only that V.T. was present before, during, and after the theft of the camcorder. The lack of any evidence showing that he at least encouraged the other defendants in stealing the cameorder precludes the juvenile court from finding, pursuant to Utah Code Ann. § 76-2-202 (1999), that V.T. was an accomplice to that theft. Accordingly, we reverse the juvenile court's adjudication that V.T. was an accomplice in the theft of the camcorder.

1 21 WE CONCUR: RUSSELL W. BENCH, Judge, and JUDITH M. BILLINGS, Judge.

      . A few days after confronting the boys about her stolen guns, one of the boys returned one of the guns to her and she found the butt of the other gun on her porch.

      . The videotape was shown at trial, but was never admitted into evidence and is therefore not part of the record on appeal. As a result, we have not seen any of the footage of V.T. Both parties, however, are in agreement as to what the videotape shows-a silent V.T., being filmed by Joey, during which time Moose talks to another person on the phone about selling the stolen camcorder to a pawn shop.

      . The juvenile court concluded there was insufficient evidence presented to support a finding that V.T. had been an accomplice in the theft of the guns.

      . Our 1998 Labrum decision was actually the third in a series. The juvenile court initially sentenced Labrum to fifteen years in prison for attempted criminal homicide plus an additional six-year group crime enhancement. See State v. Labrum, 881 P.2d 900, 902 (Utah Ct.App.1994) (Labrum I). Labrum appealed the sentence based on the juvenile court's failure to make written findings supporting the application of the enhanced sentence. See id.
      On appeal, we upheld the sentence and declined to address the issue of the lack of written findings due to Labrum's failure to raise that issue before his sentencing. See id. at 905-06. On certiorari, the Utah Supreme Court overruled our decision upholding the imposition of the enhanced sentence and held that, defendant's apparent waiver notwithstanding, the group crime enhancement statute required the entry of written findings supporting its imposition. See State v. Labrum, 925 P.2d 937, 940 (Utah 1996) (Labrum II). Thus, the Supreme Court vacated the enhanced sentence and remanded for resen-tencing. See id. at 941.
      On remand, the sentencing court again applied the group crime enhancement to Labrum's sentence, this time basing its decision on several factual findings, and Labrum again appealed. See State v. Labrum, 959 P.2d 120, 122 (Utah Ct.App.1998) (Labrum III). In that case, as more fully explained in the text, we held that the juvenile court's factual findings were insufficient to find that the other passenger had acted "in concert" with Labrum and therefore the imposition of the group crime enhancement to Lab-rum's sentence was improper. See id. at 122-24.

      . The State attempts to distinguish our decision in Labrum III on the basis of the less deferential standard of review we applied to one of the sentencing court's findings of fact. See Labrum III, 959 P.2d at 123 n. 6. This argument is wide of the mark in the context of this case. We rely upon Labrum III, not for its discussion concerning the standard of review of a court's findings of fact, but for its discussion of what level of participation by a defendant is legally sufficient to impose criminal liability under section 76-2-202. The State makes no attempt in its brief to explain how the actions taken by Behunin in Labrum IIL would not be sufficient to impose accomplice liability while the almost identical action-or more precisely, inaction-by V.T. is somehow sufficient in this case. At oral argument, the State explained this case is different because, basically, V.T. was present on more occasions, or for longer periods, than Behunin was in Labrum IIL As we explain in this opinion, it is the quality of one's actions, not their quantity, that might make one an accomplice. No amount of passive presence will render one an accomplice.

      . This approach to accomplice liability is consistent with that taken in other jurisdictions. See, e.g., United States v. Pedroza, 78 F.3d 179, 183-84 (5th Cir.1996); United States v. Luciano-Mosquera, 63 F.3d 1142, 1149-50 (1st Cir.1995), cert. denied sub nom. Pagan-San-Miguel v. United States, 517 U.S. 1234, 116 S.Ct 1879, 135 L.Ed.2d 174 (1996); People v. Taylor, 219 Ill.App.3d 47, 161 Ill.Dec. 835, 579 N.E.2d 383, 385 ("[C]riminal responsibility may not be imposed simply through guilt by association, nor by the Defendant's mere presence at the scene, nor even by the Defendant's knowledge that the offense is being committed."), appeal denied, 142 Ill.2d 663, 164 Ill.Dec. 926, 584 N.E.2d 138 (1991); State v. Roberts, 80 Wash.App. 342, 908 P.2d 892, 899-900 (1996).

      . We would, of course, conclude otherwise had the evidence shown, for example, that V.T. had suggested to his two friends that they go rob the apartment, that he had pointed out where the camcorder was kept, that he had helped carry the stolen goods out, or that he helped select the pawn shop at which to sell the camcorder.

      . We recognize that in some circumstances a finding of accomplice liability can be properly based on circumstantial evidence. See State v. Beltran-Felix, 922 P.2d 30, 36 (Utah Ct.App.1996) (discussing evidence from which fact finder could infer criminal intent to support accomplice liability). There might well be a case where the fact finder could infer, from the objective facts, that the only plausible conclusion is the existence of an accomplice who aided the other defendant(s) in the commission of a crime.
      For example, what if the item stolen from the apartment had not been a small camcorder but instead was a 500 pound television console? If the State had produced evidence that it would take at least two people to carry off such an item while a third held the spring-equipped door beyond its normal resistance point, the juvenile court could have reasonably inferred from the evidence that V.T. was not only present when the television was stolen, but that he must have helped in either a carrying or door-holding capacity and was therefore an accomplice to the crime.

      . The court noted that the videotape showed that V.T. "was present a second time, he was shown on the camcorder when the camcorder was being handled at a time when he could've distanced himself from the activity."


source: Caselaw Access Project

author: WATT, Vice Chief Justice,

license: Public Domain

text:
    2001 OK 91
    CITY OF CLAREMORE, a municipal corporation, Plaintiff-Appellee, v. TOWN OF VERDIGRIS, a municipal corporation, Defendant-Appellant.
    No. 96,357.
    Supreme Court of Oklahoma.
    Oct. 16, 2001.
    Rehearing Denied June 17, 2002.

      Stratton Taylor, Mark H. Ramsey, and Toney Foster, Taylor, Burrage, Foster, Mal-lett, Downs, & Ramsey, Claremore, OK, for Plaintiff-Appellee.
    Larry R. Steidley, Jr. and James W. Sum-merlin, Claremore, OK, for Defendant-Appellant.
   OPINION

WATT, Vice Chief Justice,

FACTS AND PROCEDURAL BACKGROUND

T1 Defendant-Appellant, Town of Verdigris, annexed fifteen parcels of unineorporat-ed land in Rogers County in June 2000. Verdigris did so at the unanimous request of the landowners under 11 0.8.1991 §§ 21-105 and 21-114. In May 2000 Verdigris had given notice to Plaintiff-Appellee, City of Claremore, of its intention to annex the property, in accordance with the requirements of § 21-114(B). The facts concerning the landowners' petition, Verdigris's notice to Clare-more, and Verdigris' annexation ordinance are undisputed.

T2 Both Verdigris and Claremore were principally located more than a mile from the property covered by Verdigris' annexation ordinance. Claremore lies to the north and west, Verdigris to the south of the annexed property. Both Verdigris and Claremore, however, had incorporated into their corporate limits narrow strips of land that extended to the property Verdigris annexed. Verdigris's strip was fifty feet wide, Claremore's twenty feet. At the point of connection between Verdigris and the annexed property, Verdigris' strip and Claremore's strip ran east and west. An unincorporated thirty foot strip lay between the Verdigris and Clare-more strips; Claremore's strip lay to the north of the unineorporated strip and Verdigris' lay to the south.

18 One of the fifteen tracts covered by Verdigris' annexation ordinance was bisected by the unincorporated thirty foot strip and by Claremore's twenty foot strip. Section 21-114(A) provides,

The majority of the owners of a subdivision or property owners located in unineor-porated territory which is enclosed by the boundaries of a municipality may petition for annexation in writing to another municipality if:
1. The width of the boundary is less than two hundred (200) feet; and
2. The property is contiguous to the other municipality except for the boundary.

All fifteen tracts abut and form one mass of land. The parties agree, and the trial court found, that Claremore is the municipality referred to in the phrase, "enclosed by the boundaries of a municipality" and that Verdigris is the "other municipality." Thus, under § 21-114(A)(2), Claremore's boundary shall be ignored in deciding whether Verdigris' corporate limits are contiguous to the annexed property. Verdigris contends that the unincorporated thirty foot strip must be ignored, too, under 11 O0.8.2001 § 21-102, which provides:

Where any territory to be annexed is separated from the corporate limits of the municipality only by a railway right-of-way, or an intervening strip less than four (4) rods [66 feet] wide, or a highway right-of-way, the territory shall be considered adjacent or contiguous to the municipality.

Claremore argued that the unincorporated thirty foot strip prevented contiguity but the trial court rejected this argument.

114 Claremore brought suit against Verdigris under § 21-114. Claremore contended, and the trial court held, that the fifty foot wide strip connecting the corporate limits of Verdigris to the annexed territory did not qualify to make the annexed property "contiguous to the other municipality" within the meaning of § 21-114(A). For the reasons discussed in this opinion, we disagree.

T5 Claremore also contended that Verdigris should be estopped because it had relocated its strip as an accommodation to Verdigris to allow Verdigris to incorporate. It is undisputed, however, that Claremore incorporated its strip two years before Verdigris was incorporated and established its own strip.

1 6 In material part, § 21—114(B) provides: ... The enclosing municipality may bring an action in district court to invalidate the annexation. If the district court finds that the conditions for annexation exist and that the enclosing municipality has not demonstrated a substantial governmental interest in the use of the property, it shall uphold the annexation.

In a motion to dismiss Claremore's petition, Verdigris contended that the obligation imposed on the district court by § 21-114(B) to make a finding as to "substantial governmental interest" is unconstitutional. The trial court denied Verdigris' motion to dismiss. In its order granting Claremore's motion for summary judgment the trial court held that the "substantial governmental interest" clause was not before the court. The trial court so held based on its ruling that "the conditions for annexation" did not exist because Verdigris' corporate boundaries were not "contiguous" to the property sought to be annexed and the annexation can only be upheld under § 21-114(B) if both the "the conditions for annexation" requirement and the "substantial governmental interest" requirement are met. Because the trial court held that "the conditions for annexation" were not met, it reasoned that it need not address the constitutionality of the statute's "substantial governmental interest" clause.

17 Verdigris moved that the Court retain jurisdiction because the appeal involved matters of first impression. Claremore joined in Verdigris motion to retain and we granted the motion on June 15, 2001.

ISSUES

T8 This is a matter of first impression as we have not heretofore interpreted 11 0.8. 1991 $ 21-114. Four issues are presented:

I. Did Verdigris' fifty foot wide strip, which abuts the annexed property, make Verdigris "contiguous" to the annexed property under 11 0.S8.1991 § 21-114(0(@)?
II. Did 11 0.8.1991 § 21-102 authorize Verdigris to annex the annexed property despite the intervening unincorporated thirty foot wide strip.
III. Did the requirement placed on the district court by § 21-114(B) to determine whether Claremore has "demonstrated a substantial governmental interest in the use of the property" unconstitutionally delegate to the courts the legislative power to determine whether Verdigris may annex property?
IV. Is Verdigris entitled to add the annexed property to its corporate limits despite Claremore's contention that the doctrine of estoppel should be held to prohibit Verdigris from doing sof

We answer "yes" to all four issues.

DISCUSSION

L.

The undisputed facts in the record show that Verdigris' corporate limits are "contiguous" to the property sought to be annexed under 11 0.8.1991 § 21-114.

¶9 It is undisputed that Verdigris' fifty foot strip abutted the property that Verdigris annexed, and that the owners of the annexed property had petitioned Verdigris for annexation in accordance with §§ 21-105 and 21-114. Claremore, however, contended and the trial court held that because only Verdigris' fifty foot strip abutted the property Verdigris sought to annex, § 21-114's requirement that Verdigris' boundaries be "contiguous" to the property sought to be annexed had not been satisfied. Based on this conclusion, the trial court held that no showing had been made "that the conditions for annexation exist."

¶10 Section 21-114 was passed by the legislature in 1991. This Court has not heretofore interpreted it, although our cases interpreting other annexation statutes are instructive. We have approved the "strip" method of annexation on numerous occasions. We did so in Town of Luther v. State, 1967 OK 59 ¶ 28, 425 P.2d 986, in which we cited with approval Botsford v. City of Norman, 354 F.2d 491, 494 (10th Cir.1965). In Bots-ford, the City of Norman annexed a strip of land sixty-seven feet wide and fourteen miles long in order to add 112,000 acres of rural property in the watershed area of the Little River Reservoir to its corporate limits. The Tenth Cireuit affirmed the trial court's holding that Norman's annexation was proper, despite the objection of the owners of the rural property. The rural owners objected to the annexation on the same grounds as Claremore objects here, that a narrow strip is insufficient to establish "contiguous" boundaries. The Tenth Cireuit rejected the landowners' argument and held that the strip was "enough to meet the adjacent requirements."

111 The Botsford court relied on our opinion in Sharp v. Oklahoma City, 1987 OK 685 T1 19-20, 74 P.2d 388; there we held that the shape of annexed property is a political decision with which this Court will not interfere absent express statutory limitations relating to the shape of such property. Neither § 21-114 nor § 21-105 requires that the portion of a city or town that is "contiguous" (§ 21-114, note 2) or "adjacent and contiguous" (§ 21-105, note 1) to annexed property take any particular form or shape.

112 We held in Sharp "That the extent and shape which the annexed territory shall take is a political and not a judicial decision...." [Citations of California cases relied upon by the Court omitted.] We hold that the shape of the annexing municipality's existing boundaries is as much a political decision as is the shape of the annexed territory. Thus, the trial court's ruling that Verdigris' boundary was only fifty feet wide at the point of its adjacency or contiguity to the annexed property meant that the "conditions for annexation [did not] exist" under § 21-114(B), was erroneous.

13 The factors leading to our decision to decline to interfere with Verdigris' annexation here are even more compelling than they were in Botsford and Town of Luther. In both Botsford and Town of Luther the annexed property was annexed over the objection of its owners. Here, however, the owners of the property that Verdigris annexed, unanimously petitioned Verdigris to incorporate that property into Verdigris' town limits. But Claremore seeks to avoid both the will of the property owners and the political decision of Verdigris to annex the property. We hold that Claremore presented nothing in its motion for summary judgment to support any finding under § 21-114(B) other than "that the conditions for annexation exist." As it was undisputed that Verdigris' fifty foot strip was contiguous to the annexed property and that the property owners unanimously petitioned Verdigris for annexation, the record shows as a matter of law "that the conditions for annexation exist[ed]."

TL.

The existence of the thirty foot wide unincorporated strip between Verdigris' fifty foot strip and Claremore's twenty foot strip did not serve to make Verdigris' corporate limits mot "contiguous" to the anmexed property.

114 Claremore argues that the unincorporated thirty foot wide strip lying between Verdigris' strip and Claremore's strip means that Verdigris' boundary is not "contiguous to the other municipality except for the boundary," as that term is used in § 21-114(A)(2). Verdigris resists this argument by pointing out that 11 0.S$.1991 § 21-102 provides,

Where any territory to be annexed is separated from the corporate limits of the municipality only by ... an intervening strip less than four (4) rods [66 feet] wide ... the territory shall be considered adjacent or contiguous to the municipality.

[Emphasis added.] Claremore contends that the word "only" in § 21-102 means that Verdigris' corporate limits were not adjacent or contiguous to the annexed property because § 21-114(A)(2) requires the annexed property to be "contiguous to the other municipality except for the boundary." Claremore posits from this that there are two intervening strips, the unincorporated strip and Clare-more's strip, and that § 21-102 allows only one strip to be ignored in deciding whether corporate limits are "adjacent or contiguous" to the annexed property. We see nothing in § 21-102 to support Claremore's contention because Claremore's analysis fails to take into account that the two strips total only fifty feet in width, which is less than the sixty-six feet allowed by § 21-102. Further, we find nothing in § 21-102 that would support Claremore's claim that a strip of less than sixty-feet in width cannot be ignored for the purpose of determining contiguity if part of it is comprised of unineorporated land and part is land within Claremore's corporate limits.

IIL.

The requirement placed on the district court by § 21-114(B) to determine whether Clare more had "demonstrated a substantial governmental interest in the use of the property" unconstitutionally delegated to the courts the legislative power to determine whether Verdigris could annex the property.

¶15 In ruling on Claremore's motion for summary judgment the trial court held that the "substantial governmental interest" clause of § 21-114 was "not currently before the court." The basis of the trial court's ruling was that, because it had held "the conditions for annexation" did not exist, it was unnecessary to address the constitutionality of the "substantial government interest" clause. But our determination "that the conditions for annexation exist[ed]" under § 21-114(B) requires us to examine the question whether the legislature may constitutionally delegate to the district court power to determine whether Claremore "demonstrated a substantial governmental interest in the use of the property." Verdigris' motion to dismiss was based in large part on its claim that § 21-114 unconstitutionally delegates to the courts legislative power. The trial court denied Verdigris' motion to dismiss without specifically addressing the constitutionality of § 21-114. Nevertheless, Verdigris raised the issue in its petition in error and the parties briefs on this issue are a part of the record before us.

¶ 16 This Court addressed a similar issue when it declared unconstitutional 11 O.S.1981 § 21-107 (repealed 1984) in Matter of De-Annexation of Certain Real Property, 1983 OK 44 ¶ 11, 662 P.2d 1375, 1377. There we held that § 21-107s delegation to the courts of the power to determine whether a particular annexation or de-annexation could be granted "without injustice to the inhabitants or persons interested" was unconstitutional. In so holding we said,

Whether property should or should not be annexed to or detached from the corporate limits of a municipality is purely legislative. Although the courts may determine whether a governing board has acted within the seope of its legislative authority and whether such action is reasonable or unreasonable, the courts may not determine whether a petition for annexation or detachment should be granted and can be granted without injustice to the inhabitants or persons interested. That determination is purely legislative and the legislative enactment (11 O0.S.1981 § 21-107) imposing such duty on the judiciary is «unconstitutional and we so hold.

[Emphasis added.]

¶17 The primary judicial function of the courts in annexation matters is to insure that the municipality has acted within the seope of legislative authority and that its actions have been reasonable. The question of what is or is not a "substantial government interest," however, is a political and not a judicial consideration. Matter of De-Annexation makes clear that the legislature may not delegate power to the courts to determine the conditions on which territory may or may not be annexed to municipalities because such determinations are purely legislative. Whether "a substantial governmental interest in the use of the property," as that term is used in § 21-114(B), is demonstrated is a political issue. Section 21-114 is, therefore unconstitutional to the extent that it purports to impose a duty on the courts to make such determinations.

IV.

Verdigris is entitled to add the ammexed property to its corporate limits despite Claremore's contention that the doctrine of estoppel should be held to prohibit Verdigris from doing so.

¶18 Finally, Claremore claimed in its petition that Verdigris should be estopped from annexing the property at issue here. Our analysis of this issue reveals, as a matter of law, that Claremore has no right to claim that Verdigris' officials are estopped from carrying out the public rights and duties of the municipality they represent. In State, ex rel. Cartwright v. Dunbar, 1980 OK 15 ¶ 46, 618 P.2d 900, 911, lessees of public trust property objected when the county assessor sought to place the property on the tax rolls. The lessees claimed that the state should be estopped from taxing the property because it had not previously been placed on the tax rolls. This was because an attorney general's opinion (later superseded) had held the property not to be taxable. We rejected the lessees contention saying,

It is contended the state is estopped from assessing these properties because of the reliance of "lessees of public trust properties" on the generally held view that such interests were exempt from taxation. Beyond the fact that the two lease agreements in issue specifically contemplate a change in the tax law, interpretation, and administration, which seems to belie any contention of reliance, it is fundamental that a state and its subdivision camnmot be estopped from protecting public rights when public officials have acted erroneously or failed to act. Layne-Western Co. v. City of Depew, 1936 OK 462, 177 Okla. 338, 59 P.2d 269 (1986). Koehring and Chesterfield may not rely upon estoppel to defeat the imposition of taxes upon their taxable interests.

[Emphasis added.]

¶19 We followed Dunbar in General Motors Corp. v. Oklahoma County Bd. of Equalization, 1983 OK 59 ¶ 13, 678 P.2d 233, 286, saying,

In Dunbar we also held that the State was not estopped from assessing the "lessee's" property because of its reliance on the generally held view that such interest was exempt from taxation. Our Rolding was based on the principle that a state and its subdivision canmot be estopped from protecting public rights when public officials have acted erroneously or failed to act.

[Emphasis added.] General Motors claimed that an agreement it had made with the state was enforceable. We rejected the contention, saying,

Our decision in Dunbar is controlling in the case at bar and GMC's property is subject to ad valorem taxation unless the disputed tax abatement agreement is legally enforceable. The Federal Constitution does not protect unenforceable contract rights. The disputed agreement, even if it could be established, is void because mo public official or public agency could constitutionally grant the tax exemption allegedly contained in the agreement. Since the alleged agreement is unenforceable, GMC is not entitled to the tax relief it sought.

[Emphasis added. 1988 OK 59 at ¶ 24, 678 P.2d at 287.]

T20 Our opinions in Dunbar and General Motors leave no doubt that any agreement Verdigris officials might have made with Claremore to limit or eliminate Verdigris' exercise of its public power to annex land would have been void and unenforceable. Thus, Claremore's estoppel claim fails as a matter of law.

SUMMARY

21 The fact that Verdigris' boundary was only fifty feet wide at the place where it joined the annexed property did not serve to make Verdigris' corporate limits non-contiguous to the annexed property. Nor did the existence of the thirty feet wide unineorpo-rated strip between Verdigris' fifty foot strip and Claremore's twenty foot strip make the Verdigris corporate limits non-contiguous to the annexed property. Title 11 0.8.1991 § 21-114 is unconstitutional to the extent that it purports to delegate to the district courts the obligation to decide whether "a substantial governmental interest in the use of the property" has been demonstrated. Such determinations are political, not judicial, and as such are beyond the constitutional power of the courts to decide. Finally, any agreement Verdigris officials might have made with Claremore to limit or eliminate Verdigris' exercise of its public power to annex land would have been void and unenforceable. Thus, Claremore's estoppel claim fails as a matter of law.

122 For the reasons expressed in this opinion the judgment of the trial court is reversed and the matter is remanded with instructions to dismiss Claremore's cause of action.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

OPALA, KAUGER, SUMMERS, JJ.concur in part; dissent in part.

HODGES, J.-dissents.

      . Title 11 0.$.1991 § 21-105 provides: At least three-fourths of the registered voters and the owners of at least three-fourths (in value) of the property in any territory adjacent or contiguous to the municipality may request annexation by signing and filing a petition with the governing body of the municipality. The petitioners must give notice of the presentation of the petition by publication at least once each week for two (2) successive weeks in a newspaper of general circulation in the municipality where the petition has been presented. The municipality may pay the cost of the annexation proceedings. After the notice of the petition has been given, the governing body by ordinance may annex the territory to the municipality.

      . Title 11 0.$.1991 § 21-114 provides:
      A. The majority of the owners of a subdivision or property owners located in unincorporated territory which is enclosed by the boundaries of a municipality may petition for annexation in writing to another municipality if:
      1. The width of the boundary is less than two hundred (200) feet; and
      2. The property is contiguous to the other municipality except for the boundary.
      B. The governing body of the other municipality may grant the petition after notifying the enclosing municipality in writing at least thirty (30) days prior to adoption of the annexation ordinance. The boundary of the enclosing municipality shall recede to the extent of the annexation. The enclosing municipality at any time may reestablish its boundary within unincorporated territory enclosed by it on the effective date of this act. The enclosing municipality may bring an action in district court to invalidate the annexation. If the district court finds that the conditions for annexation exist and that the enclosing municipality has not demonstrated a substantial governmental interest in the use of the property, it shall uphold. the annexation.
      In 2001, the legislature amended § 21-114(A)(1) by reducing the maximum width of the boundary to "less than twenty (20) feet." This amendment, however, has no effect on our analysis of the statute set forth in this opinion.

      . Verdigris later passed another annexation ordinance that included the property annexed under the annexation ordinance at issue here plus other land lying between what was formerly the main part of Verdigris and the land Verdigris annexed under the first ordinance. Claremore also brought suit to attack that ordinance under § 21-114. None of the issues in that case are before us in this appeal.

      . The trial court also rejected Claremore's argument on this issue on somewhat different grounds. The trial court held that the existence of the unincorporated strip was irrelevant "because the statute [§ 21-114] requires only contiguity between the annexed property and the 'other municipality.' The fence line [strip] boundaries of the respective municipalities need not be contiguous."

      . Claremore has moved for leave to submit an appellate brief. We deny that motion for the reason that all of the issues addressed in this opinion were briefed in the trial court. Thus, the positions of the parties on all relevant issues are already known to this Court. For that reason, we also deny Claremore's motion for oral argument.

      . Title 11 0.8.1981 § 21-107 provided:
      If the district court finds that the request of the petitioners should be granted and can be granted without injustice to the inhabitants or persons interested, the court shall issue an order declaring annexation of the territory to the municipality. If the court finds against the petitioners, the petition shall be dismissed at the cost of the petitioners.
      The legislature repealed the statute in 1984.


author: WINCHESTER, J.

text:
    2002 OK 49
    Eugene SMITH, Appellant, v. The Honorable Mark A. MOORE, District Court Judge, Blaine County, Appellee.
    No. 96,949.
    Supreme Court of Oklahoma.
    June 11, 2002.

      Eugene Smith, pro se.
   WINCHESTER, J.

{1 The appellant, Eugene Smith, a prisoner, filed an application for a writ of mandamus and requested pauper status so that court costs would be waived. The trial court issued an order dated September 24, 2001, which found that Smith had an income of $24.00 per month for "gang pay." The court then assessed $48.00 of court costs against Smith, citing Foust v. Pearman, 1992 OK 135, 850 P.2d 1047 as authority. Smith was otherwise allowed to proceed as a pauper. The order gave Smith the option of filing a dismissal in the action within twenty days, but if the dismissal was not filed, a lien would be placed on Smith's gang pay to collect $48.00 of court costs assessed against him.

12 We must initially determine a procedural issue, and that is whether the district court's order is appealable. This Court has appellate jurisdiction to review final orders, interlocutory orders appealable by right, and certified interlocutory orders. 12 §§ 952, 958. Page v. Sherman, 1955 OK 328, ¶ 2, 290 P.2d 132, held:

"An appeal does not lie to this court from an intermediate or interlocutory order made during the pendency of an action, which intermediate or interlocutory order leaves the parties in court to have the issues tried on the merits, unless the appeal sought to be taken comes within some one of the special orders from which an appeal is authorized by statute prior to final judgment in the main action."

The order in the present case is not a final order because it does not conclude the litigation; it merely requires the payment of a filing fee. The wording of the order does not prevent the prisoner from proceeding further with the case, nor does it require him to wait until he has accumulated $48.00. Rather, the order imposes a lien on Smith's gang pay so that it would be paid to the court clerk by the prison facility as the pay became due. Because the order has no effect on the continuation of the district court case, the order is an interlocutory judicial action that is un-reviewable in advance of judgment. LCR, Inc. v. Linwood Properties, 1996 OK 73, ¶ 16, 918 P.2d 1388, 1394.

¶3 Even though this case is not appealable, and this Court may properly dismiss it, the case presents the issue of the constitutional right of access to the courts. The finding that an order is not appealable does not necessarily preclude review. This Court looks to the content and substance of an instrument filed in this Court rather than its title. First Nat. Bank and Trust Co. of Ada v. Arles, 1991 OK 78, ¶5, 816 P.2d 537, 539. The order denies waiver of the filing fee, and sets a lower fee and properly cites Foust.

¶4 Smith asserts that he had only $0.24 in his account at the time he petitioned for pauper status. He argues that the trial court abused its discretion, given the amount in his account, by failing to follow the guidelines in 12 0.8.2001, § 2003.1 and denying Smith pauper status. The Foust case, which was cited as authority in the trial court's order, addressed the issue of whether a prisoner's savings and draw accounts are subject to assessment for filing fees in court cases. The prisoner in that case sought writs of prohibition and mandamus by an original action to permit him to file his suit in forma pauperis. Because we look to the content and substance of an instrument, we recast this cause as an original proceeding for a prerogative writ.

¶5 Foust, 1992 OK 185, ¶ 6, 850 P.2d at 1049, concluded that when read together, 28 O.S.2001, § 152(E) and 57 O.S.2001, § 565 give the courts discretion to require partial payment of the fee. After Foust was handed down the legislature enacted 12 O.S.2001, § 2003.1(C) , which provides that leave to proceed as a pauper may be denied if the value of the money and securities in a prison. er's institutional account exceeds $200.00. We construe this statute as a guide for the courts in refusing pauper status to prisoners who have institutional accounts exceeding $200.00, not as a prohibition against requiring prisoners to pay partial fees when their accounts have $200.00 or less.

T 6 Foust held that a court in exercising its discretion when determining a proper partial fee, may consider present account balances of the prisoner, monthly income, other assets, and whether any funds are withdrawn to avoid payment of a statutory fee or partial fee. Foust, 1992 OK 135, ¶ 8, 850 P.2d at 1049-1050. This Court issued writs of mandamus and prohibition in Foust to the district court forbidding the assessment of a filing fee equal to all of the prisoner's funds. Foust, 1992 OK 185, ¶ 9, 850 P.2d at 1050. But Foust did not limit the courts to consideration of the amount in the prisoner's trust account only at the time of filing, Because the courts have the authority to examine all potential sources of funding belonging to the prisoner, we conclude that the courts may also assess future balances until the partial fees are paid. The ability of the courts to require partial payment of fees serves the purpose of compelling a prisoner to weigh the validity of a lawsuit against the cost of pursuing it. Cumbey v. State, 1985 OK 36, ¶ 5, 699 P.2d 1094, 1096.

17 The general rule for a prerogative writ to issue is that the party seeking the writ must have a clear legal right to the relief sought and the respondent must have a plain legal duty in which the exercise of discretion is not implicated; and it may be issued only in situations where there is no plain and adequate remedy in the ordinary course of the law. Oklahoma Gas & Electric v. District Court, 1989 OK 158, ¶ 8, 784 P.2d 61, 63. The amount of the partial filing fee is within the discretion of the trial court. The clear legal duty is that the court may not order a partial filing fee equal to all of Smith's funds. Accordingly, the trial court has the authority to order that Smith pay partial filing fees and to make such further orders as necessary to collect those fees. However, the court does not have the authority to order payment of a partial filing fee in any month that will completely deplete Smith's account.

18 We issue the writs of mandamus and prohibition to the extent that the district court shall not require a filing fee equal to all of Smith's funds. The district court shall determine the amount of the filing fee consistent with the guidelines found in Foust and the instructions in this opinion. That court shall also allow Smith an opportunity to object to the filing fee as so determined.

WRITS OF PROHIBITION AND MANDAMUS GRANTED IN PART AND DENIED IN PART, WITH INSTRUCTIONS.

CONCUR: HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, SUMMERS, BOUDREAU, JJ.

OPALA, J., dissenting, I dissent for the reasons expressed by KAUGER, J. in her dissent.

KAUGER, J., dissenting for reasons expressed in Mahkorney v. Moore, 2002 OK 39, 50 P.3d 1128.

      . Article 2, § 6 of the Constitution of the State of Oklahoma provides: "The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."

      . We cite the current statutes. The Court in Foust cited 28 O.S.1991, § 152, and 57 O.S. 1991, § 565.

      . 28 O.S.2001, § 152(E) provides: "In any case in which a litigant claims to have a just cause of action and that, by reason of poverty, the litigant is unable to pay the fees and costs provided for in this section and is financially unable to employ counsel, upon the filing of an affidavit in forma pauperis executed before any officer authorized by law to administer oaths to that effect and upon satisfactory showing to the court that the litigant has no means and is, therefore, unable to pay the applicable fees and costs and to employ counsel, no fees or costs shall be required. The opposing party or parties may file with the court clerk of the court having jurisdiction of the cause an affidavit similarly executed contradicting the allegation of poverty. In all such cases, the court shall promptly set for hearing the determination of eligibility to litigate without payment of fees or costs. Until a final order is entered determining that the affiant is ineligible, the clerk shall permit the affiant to litigate without payment of fees or costs. Any litigant executing a false affidavit or counter affidavit pursuant to the provisions of this section shall be guilty of perjury."
      57 0.$.2001, § 565 provides: "In determining whether or not an inmate shall be allowed to use an affidavit in forma pauperis, the court shall consider the amount of funds an inmate has on deposit with the Department of Corrections."

      . Title 12 0.$.2001, § 2003.1(C) provides: "In all cases in which the petitioner, movant, or plaintiff is an inmate of a penal institution and desires to proceed in forma pauperis, in addition to the proof of poverty required by subsection C of Section 152 of Title 28 of the Oklahoma Statutes, the inmate shall submit a certificate executed by an authorized officer of the institution in which the inmate is confined stating the amount of money or securities on deposit to the inmate's credit in any account in the institution. The certificate may be considered by the court in acting on the motion for leave to proceed in forma pauperis. In the absence of exceptional circumstances, leave to proceed in forma pauper-is may be denied if the value of the money and securities in petitioner's, movant's, or plaintiff's institutional account exceeds Two Hundred Dollars ($200.00)."

      . Although there is no specific statutory authority for describing the trial court's orders as liens on Smith's account, a court has the common law authority to issue orders to assure compliance with a previous order of the court.


author: SUMMERS, J.

text:
    2002 OK 52
    In the Matter of the Appeal of the CITY OF DURANT, a municipal corporation. City of Durant, Plaintiff/Appellant, v. Chris Cicio, Defendant/Appellee.
    No. 94,498.
    Supreme Court of Oklahoma.
    June 18, 2002.

      PL. Pat Phelps, City Attorney, Durant, OK, for Appellant.
    James Patrick Hunt, James R. Moore & Associates, Oklahoma City, OK, for Appellee.
   SUMMERS, J.

T1 A statute, 11 0.8.1991 § 50-128, provides that no member of the Oklahoma Police Pension and Retirement System may be discharged "except for cause", and establishes a municipal board of review to hear "appeals concerning the discharge of members." The question is whether that statute was properly applied to review the discharge of Chris Ci-cio, the defendant/appellee, from his employment as a policeman with the City of Durant. We hold that it was. We vacate the opinion of the Court of Civil Appeals and affirm the judgment of the District Court.

12 We previously granted certiorari to Officer Cicio's petition to consider issues regarding the construction of § 50-123, in particular its reach, and to determine whether its provisions conflict with those of 11 O.S.1991, § 10-113 and 11 O.S.1991, § 10-120, which provide that a city manager has the discretionary authority to appoint city employees and, when necessary, to fire them "for the good of the service." The matter presents a question of law concerning the interpretation and application of statutes and is before us for de novo review.

¶ 3 Section 50-123 appears in Title 11, Article L. Police Pension and Retirement System, Part 1, Municipal Police Pension and Retirement System, and provides in pertinent part as follows:

A. The governing body of every participating municipality, except municipalities which have provided for a civil service board of review or merit board, or have negotiated a contract covering discharge with their members to hear such appeals, shall establish a board of review to hear appeals concerning the discharge of members. The board of review shall consist of the mayor, ex officio, who shall be a voting member, and four members to be appointed by the governing body of the participating municipality, as follows: 1. Two police officers retired or active from the police department of the municipality; and 2. One attorney and one licensed physician residing in the municipality. ...
B. No member may be discharged except for cause. Any member who is discharged may appeal to the board of review herein provided. Appeals from decisions of said board of review may be taken in the manner provided for in this article, provided the provisions of this seetion relating to the board of review and discharge shall not apply to any municipality which has heretofore or hereinafter established by its charter civil service or merit system pertaining to the appointment and discharge of members and an independent board or commission having authority to hear actions involving the discharge of members. (emphasis added)

T4 The pertinent portion of 11 0.8.1991 10-1183 provides:

"The city manager shall be the chief executive officer and head of the administrative branch of the city government. He shall execute the laws and administer the government of the city, and shall be responsible therefor to the council. He shall:
1. Appoint, and when necessary for the good of the service, remove, demote, lay off or suspend all heads of administrative departments and other administrative officers and employees of the city except as otherwise provided by law. The manager or the council by ordinance may authorize the head of a department, office or agency to appoint and remove the subordinates in such department, office or agency;" (emphasis added)

115 Title 11 § 50-120 provides:

Appointments and promotions in the service of a statutory council-manager city shall be made solely on the basis of merit and fitness; and removals, demotions, suspensions, and layoffs shall be made solely for the good of the service. The council by ordinance may establish a merit system and provide for its organization and functioning, and provide for personnel administration and regulation of personnel matters. (emphasis added)

T6 The facts are not in dispute. Officer Cicio was employed as a police officer by the City of Durant, and in 1998 he was fired from that position by the city manager for "the good of the service." He was a participant in the police pension system. Relying on the provisions of § 50-128, Cicio demanded the City convene a "board of review" to hear an appeal of his discharge, which he asserted was expressly required to determine whether he was fired "for cause."

17 The City at first refused to grant his request because it did not agree that the statute could be interpreted to apply to issues beyond an officer's pension and retirement benefits. Later, Officer Cicio did assert that the termination had resulted in the loss of his ability to participate in the state police pension program. Ultimately the City of Durant empaneled a board of review, and although the City contended the scope of the board's authority to review was limited to pension issues, the board nonetheless undertook consideration of the merits of the city manager's decision to discharge Officer Cicio, and directed that he be reinstated to employment with the police force.

T8 The City of Durant then brought this declaratory judgment action in the trial court seeking to establish the parties' rights under § 50-123, and a declaration that the city was not required to follow the procedures set forth therein to review decisions to discharge a police officer. Durant titled its action "Declaratory Judgment and Appeal from Board of Review" but did not pursue an appeal of issues concerning the correctness of the decision which the Board reached as to Cicio's dismissal. The City contended it challenged only the interpretation and application of § 10-128 regarding the power of the Board to review employment decisions which were made by the city manager pursuant to statutory authority set forth in § 10-113 and § 10-120.

¶9 The trial court ruled against the City. It agreed with Officer Cicio, found that § 50-123 did apply to this case, and imposed an obligation on the City to provide a "for cause" review of the discharge of a police officer who is a participant in the pension and retirement system. The trial court denied City's prayer for relief and refused to overturn the Board's ruling in favor of Cicio's reinstatement to the police force.

¶10 The City of Durant appealed the trial court's order, asserting that § 10-113 and § 10-120 vest the city manager with the absolute discretion to hire and fire all "at-will" municipal employees, which, City argues, includes a police officer such as Officer Cicio. It contends that § 50-123 imposes no obligation on the City to provide review of that termination decision. Relying primarily on Rains v. City of Stillwater, 1991 OK CIV APP 87, 817 P.2d 753, the City contends that the scope of a review hearing held pursuant to § 50-128 is limited to issues involving the pension rights of a discharged police officer, and is not applicable in this challenge to the statutory discretionary power of the city manager to terminate a police officer. The City also argues that questions involving a police officer's hearing on his discharge from employment are a matter of solely local municipal concern. The Court of Appeals reversed and found in favor of the City of Durant. We have granted the officer's petition for certiorari.

T11 Officer Cicio argues that § 50-123 is applicable to this matter, and that the statute's provisions entitled him to a review by the Board of the decision to terminate his employment. That would be true, he submits, even if § 10-113 did not contain the "except as otherwise provided by law" caveat. He argues this is so because it is well settled that the specific statute will control where a general statute and a specific statute conflict with other. Duncan v Nichols Hills, 1996 OK 16, 913 P.2d 1303. We agree with Officer Cicio.

¶ 12 Section 50-123 is specifically directed at the members of the police pension and retirement system, prohibiting their discharge "except for cause" and granting an appeal to a board of review, whereas § 10-113 applies generally to municipal administration, authorizing the city manager to exercise discretion in appointing and removing officers and employees, when necessary for the good of the service, except as otherwise provided by law. In Hall v. O'Keefe, 1980 OK 108, 617 P.2d 196, this Court held that § 10-118 and $ 10-120, authorizing city managers to remove employees "for the good of the service" did not create a "cause" requirement and did not confer a property interest in continued employment requiring due process protection within the meaning of the Oklahoma Constitution.

The fundamental rule of statutory construction is to ascertain and give effect to the legislative intent, and that intent is first sought in the language of a statute. Courts will give the words of a statute a plain and ordinary meaning, unless a contrary intention plainly appears. When the language of a statute is plain and unambiguous, no occasion exists for application of rules of construction, and the statute will be accorded meaning as expressed by the language employed. Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, 901 P.2d 800, 803; City of Bethany v. Hill, 1973 OK 49, 509 P.2d 1364.

1 14 Section 50-123 is not ambiguous, and it is clearly intended to protect policemen who are members of the state pension and retirement system from arbitrary discharge from employment. Contrary to the City's assertions that these members are at-will employees, the statute restricts the reason for their discharge to "for cause" and ensures that all members will have a right to appeal the discharge from employment. This accords members a legitimate expectation of continued employment until "cause" for discharge is shown. The statute requires that unless an appeal process is already in place in a municipality (by means of a civil service or merit board or a negotiated contract covering discharge of their members to hear appeal), the municipality must appoint a board of review to hear appeals from a discharge from employment. § 50-123(B).

¶15 The City of Durant relies on the reasoning and holding of Rains v. City of Still-water, 1991 OK CIV APP 87, 817 P.2d 758, where the Court of Civil Appeals rejected a discharged police officer's reliance on § 50-123 and the city's personnel manual to establish a protected property interest in continued employment. The officer brought a civil rights arising from his termination, asserting it wrongfully occurred without "just cause." The court, however, held the city's charter provisions allowing the city manager to fire employees "for the good of the service" took precedence over the statute, and therefore the "for cause" provision of § 50-123 created a property interest only in the pension and retirement benefits granted by state law, and not in continued employment with the city. In that determination, the Rains court relied on Goodwin v. Oklahoma City, 1947 OK 200, 182 P.2d 762, 764, which held that city charter provisions relating to the removal or discharge of officers or employees were "solely matters of municipal concern and control over general laws," and were therefore within the general rule that a city charter becomes the organic law of the city, superseding the general laws relating to municipalities in matters of purely municipal concern.

T16 We are not persuaded by Durant's arguments. First, we note that its reliance on Rains and the "home rule" line of argument is not well taken, since Durant concedes that it is not a charter city, but rather is a statutory council-manager city. See, 11 ©.§.1991, § 10-101. Also unconvincing is Durant's contention that we should uphold its position even though it is not a charter city because the "good of the service"provision of § 10-118 is identical to the terms of the city charters placed at issue in Goodwin and Rains. The City contends that the absence of a charter should not be controlling, because issues regarding the prerogative of the city manager to act in accord with his statutory authority are no less important local concerns in cities relying on § 10-118 exelu-sively, than they are in cities relying on charters.

T17 The protection of employment rights of policemen is not an issue of merely local municipal concern, however, and § 10-113 is not controlling here. By its own terms § 10-113 expressly provides that the discretionary power of a city manager to lay off employees "when necessary for the good of the service" is limited to situations which are not "otherwise provided by law," and we find that the law controlling the issues presented here regarding Officer Cicio's termination is "otherwise provided" by § 50-123. We agree with Officer Cicio's argument that the home rule supremacy analysis on which Goodwin and Rains are based is no longer good law, as this Court has since determined that police and fire protection is unquestionably a matter of statewide interest.

¶ 18 In Tulsa v. Public Employees Relations Board, 1990 OK 114, 845 P.2d 872, we held the issue of whether a chartered home rule city was obligated to bargain in good faith as required by the Fire and Police Arbitration Act regarding municipal employees' wage provisions contained in an expired collective bargaining agreement was not a matter of purely municipal concern. We rejected the city's position that it had the right to make and implement all decisions regarding its employees, and found that since a wider public interest was at stake in the issues of police and fire bargaining and as to the rights provided to employees, the home rule doctrine was inapplicable.

¶ 19 Issues concerning the constitutionality of the provision of the Fire and Police Arbitration Act for binding interest arbitration in light of the home rule doctrine were before us in Fraternal Order of Police, Lodge No. 165 v. City of Choctaw, 1996 OK 78, 933 P.2d 261, 267, where we again held that the home rule doctrine is not applicable to such issues where wider public interests are involved. The Court stated: "Since police and fire protection is a matter of statewide concern, the legislature has the power to enact laws . to insure continuity of protection and resolution of disputes regarding the actual rendering of those services by officers and firefighters." The Court also noted that an issue which has traditionally been a matter of local government may be lifted by the magnitude of statewide concern to a state police power regulation and thereby exempted from further municipal control. See 70 O.S.2001 §§ 3311, et seq.

¶ 20 In keeping with these decisions, in Bethany v. Public Employees Relations Board, 1995 OK 99, 904 P.2d 604, this Court rejected the city's assertion that pursuant to its charter it would have the exclusive right to resolve disputes regarding discipline and discharge of employees, stating that any such conflict between a charter and a state statute regarding arbitration of grievances would be "governed by the state statute which took precedence over the city charter". Id. at 607, n. 4.

1121 The statewide interest in the protection of the employment rights of member policemen from arbitrary discharge is reflected in the provisions of § 50-128, which prohibit discharge "except for cause" and assure all members of the System a right to appeal their discharge. A plain reading of the statute shows that this protection to members is not just a matter of local concern, since all members, even those such as Officer Cicio who are not covered by an existing civil service or merit system or a negotiated contract, are entitled to a review of their discharge. All aspects of the administration and operation of the statewide Oklahoma Police Pension and Retirement System, set forth in 11 0.8.1991, sections 50-101, et seq., which includes all predecessor municipal Police Pension and Retirement Systems, are matters of substantial interest to the state, and the System is not subject to the control of the individual participating municipalities.

122 Title 11 0.8.1991, § 50-102.1 creates the Oklahoma Police Pension and Retirement System, and provides that it "shall be a body corporate and an instrumentality of this state ... [which] shall be vested with the powers and duties specified in this act and such other powers as may be necessary to enable it and its officers and employees to carry out fully and effectively the purposes and intent of this article This System shall be the responsibility of the state and not that of the participating municipalities."

¶ 23 We hold that section 50-123 protects a member's right to continue in his employment in the absence of a showing of cause, and the board of review has the authority to pass on the merits of the discharge decision. Today's ruling finds support in Ruddell v. City of Jenks, 1976 OK 166, 556 P.2d 999, 1003, where we affirmed the trial court's issuance of a Writ of Mandamus requiring the City to establish a Board of Review to review the discharge of the Police Chief where his pension and retirement rights were involved. To the extent that Rains states the "for cause" provision creates an interest only in a member's pension and retirement benefits, and not in the continued employment itself, it is overruled.

24 The trial court correctly found that 11 ©.S.1991, § 50-123 applies to this case. THE OPINION OF THE COURT OF APPEALS IS VACATED, AND THE JUDGMENT OF THE TRIAL COURT IS AFFIRMED.

1 25 HARGRAVE, C.J., LAVENDER, OPALA, KAUGER, BOUDREAU, JJ., concur.

11 26 WATT, V.C.J., concurs in result.

1127 WINCHESTER, J., dissents.


author: CARL B. JONES, Judge: JOPLIN, V.C.J., and BUETTNER, J.,

text:
    2002 OK CIV APP 67
    FALCONHEAD PROPERTY OWNERS ASSOCIATION, INC., an Oklahoma non-profit corporation, Plaintiff/Appellee, v. Lucille W. FREDRICKSON, Defendant/Appellant.
    No. 96,354.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    April 12, 2002.
    Rehearing Denied May 24, 2002.

      Kenneth L. Delashaw, Jr., Marietta, OK, for Plaintiff/Appellee.
    Kirk D. Fredrickson, Oklahoma City, OK, for Defendant/Appellant.
   OPINION

CARL B. JONES, Judge:

4 1 Plaintiff, Faleonhead Owners Property Association, Inc. ("Association"), filed a Small Claim Affidavit on March 23, 2001, against Defendant, Lucille W. Fredrickson, in the District Court of Love County. Defendant is a non-resident owner of a lot in the Association's Falconhead Resort in Love County, having acquired title to her property on May 3, 1994. The Affidavit alleged that Defendant's lot was subject to a covenant titled "Dedication," recorded in the Love County Clerk's Office, which created an obligation on the part of lot owners to pay periodic fees to maintain the common facilities of Falcon-head. Defendant's predecessor in interest bound itself to the Dedication upon contracting to purchase the property in 1971. The Association sought $2,896.25 from Defendant for past due monthly maintenance fees, interest and service charges.

T2 After a bench trial was conducted on April 26, 2001, the court entered judgment for Association in the amount of $2,896.25, plus costs. No stenographic record was made of the proceedings and no exhibits were introduced at trial Furthermore, Defendant did not prepare a narrative statement in leu of transcript for use in this appeal. See Rule 1.30 of the Oklahoma Supreme Court Rules, 12 0.8. Supp.1997, Ch. 15, App. The trial court overruled Defendant's motion for new trial.

3 On appeal, Defendant contends that (1) Association's right to recover past due charges is limited by statute to enforcement of a lien filed against the subject property, (2) any recovery is limited by a three, rather than five, year statute of limitations, (8) Association is limited by law to assess interest on any past due charges at the rate of six percent per annum, and (4) Association is not entitled to recover "service charges." Both parties request appeal related attorney's fees. ‘

14 Initially, we reiterate that the record is devoid of evidentiary matter adduced at trial and the trial court's journal entry of judgment does not contain specific findings of fact and conclusions of law. This court has no way of determining-aside from speculation-what statute of limitations the trial court applied in this case, what interest rate, if any, was allowed on Defendant's outstanding debt or whether any "service charges" were included in the court's award. "It is the duty of the appealing party to procure a record that is sufficient to obtain the corrective relief sought." Chamberlin v. Chamberlin, 1986 OK 30, T7, 720 P.2d 721, 724. "Error may not be presumed from a silent record. It must be affirmatively demonstrated." Eckel v. Adair, 1984 OK 86, 17, 698 P.2d 921, 924. "When, as here, the meager record presented does not support the error alleged in appellant's brief, the trial court's judgment cannot be disturbed. It is - presumed correct until the contrary has been 'shown by the record." Hamid v. Sew Origi-mal, 1982 OK 46, 17, 645 P.2d 496, 497. Having no record to the contrary, we must presume the trial court's judgment was correct as to Defendant's second, third and fourth propositions of error.

¶5 Regarding the only remaining proposition of error, Defendant contends that the power of Association to impose fees is derived from the Real Estate Development Act, 60 O.S.1991 § 851 et séq., and that the language of § 852(C) limits recovery of any assessments to lien foreclosure actions. We disagree. First, § 852(C) states that assessments "may" become a lien upon the lots of defaulting owners and that such liens "may" be foreclosed upon. The use of the word "may," rather than the word "shall," usually connotes that conduct or actions are permissive or discretional and not mandatory. State ex rel. Cartwright v. Okla. Nat'l Gas Co., 1982 OK 11, ¶8, 640 P.2d ¶8341, 1845; Shea v. Shea, 1975 OK 90, ¶ 10, 537 P.2d 417, 418. More importantly, § 855 of the Act states, "The powers granted the owners association under this act shall apply only to owners associations created subsequent to the effective date of this act." The Act became effective on June 5, 1975. Because the Dedication at issue here was filed on March 15, 1971, Association was undoubtedly created prior to the effective date of the Act. Accordingly, the Act does not apply to this case.

¶6 The fact remains that Defendant's predecessor in interest agreed to be bound by the terms of the Dedication. Because the Dedication was filed of record in the Love County Clerk's Office, Defendant is deemed to have constructive notice of the terms and conditions of the Dedication. 16 § 16. See also Warwick Estates Ass'n, Inc. v. Anderson, 1989 OK CIV APP 65, ¶7, 785 P.2d 335, 337 (purchaser of property which has previously been subjected to owners association assessments is liable to the association when the terms and conditions of association membership have been filed with the county clerk). "A covenant is in the nature of a contract and when a covenant is breached it confers the same right of action as for any other contract." Russell v. Williams, 1998 OK CIV APP 135, ¶7, 964 P.2d 231, 234, citing Ball v. Coyle, 1925 OK 101, 108 Okla. 30, 233 P. 750. Upon examination of the record, we cannot say that the trial court's decision to permit Association to proceed with this action on an open account is against the clear weight of the evidence or contrary to law or established principles of equity. Paris Bank of Texas v. Custer, 1984 OK 5, ¶ 22, 681 P.2d 71, 76.

T7 Both parties' requests for appeal related attorney's fees are denied.

18 AFFIRMED.

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

specially concurring.

I would also grant appeal-related attorney fees to Appellee.

      . In her motion for new trial, Defendant requested that the court enter a formal journal entry of judgment with written findings of fact and conclusions of law pursuant to 12 0.S.1991 § 611. Although the trial court did not reduce its findings and conclusions to writing, Defendant has not briefed this issue on appeal. Accordingly, this issue is treated as waived. Peters v. Golden Oil Co., 1979 OK 123, 13, 600 P.2d 330, 331.


author: BUETTNER, J:

text:
    2002 OK CIV APP 63
    MEGHAN COVES ASSOCIATION INC., an Oklahoma Non-profit Corporation, Plaintiff/Appellee/Counter-Appellant, v. MEGHAN COVES PROPERTY, INC., an Oklahoma Corporation; and Meghan Coves Builders, LLC., an Oklahoma Limited Liability Company, Defendants/Appellants/Counter-Appellees, and Angela A. Miller; C.F. Perry, Jr. and Betty A. Perry, Trustees of the C.F. Perry, Jr. and Betty A. Perry Revocable Trust; Charles S. Baldwin and Helen Jo Baldwin; Lorna A. Westberg and Constance C. Allen; Leon P. Jacobs and Patty J. Jacobs; James A. Eaton, Jr. and Pam A. Miller; Brian L. Schwartz; Helen L. George; Robert J. Krueger and Barbara M. Krueger; Gregory C. Garland and Laura Gail Garland; Neal Fowler Lehman and Marilyn Kay Lehman; Bobby L. Short and Marilee C. Short; Trustee of the Coralea Bowerman Trust; Max A. Windsor and Connie R. Windsor; Johnny P. Ryburn and Patricia P. Ryburn, Co-Trustees of the Ryburn Family Trust; Jackie Dale Pittman and Linda Pittman, Co-Trustees of the Jackie Dale Pittman and Linda Kathryn Pittman Living Trust; Niles Q. Hanlin and Evelyn V. Hanlin, Trustees of the Niles Q. Hanlin and Evelyn V. Hanlin Trust; Kimberly A. Hall; Donald Ray Meints and Rene Cheryl Meints; William Laurence Mocha, Trustee of the Revocable Trust Agreement of William Laurence Mocha; Lee F. Hudson and Judith A. Hudson, and Gifford W. Brossett and Janice B. Brossett; Rowena Wyvern Beach, Trustee of the Rowena Wyvern Beach Revocable Living Trust; Bill D. Strange and Reva E. Strange; Mary Alice Jones, Trustee of the Mary Alice Jones Trust; Steve E. Wise and Beverly A. Wise; John W. Mcghee and Dalene S. McGhee; E. Doyle Newcomb and Judith Lea Newcomb; Ronald G. Matthews and Joan A. Matthews, Co-Trustees of the Ronald G. and Joan A. Matthews Family Trust; Margaret A. Ballard, Trustee of the Margaret A. Ballard Revocable Living Trust; Orville Cherry and Catherine Cherry; Marshall Heatherly, Jr. and Heatherly Properties, Inc.; Franklin S. Cronk; Richard L. Ryan, Jr. and Beverly A. Ryan; Betty Pitts Cartwright and Drew Cartwright; Roger D. Hartman and Wanda L. Hartman; Bruce E. Borders; M. Duane Dunham and Linda S. Dunham, Trustees of Dunham Family Revocable Trust; Hugh K. Charles; Yolanda Hill; Kathleen Pixley; John William Anthony, Jr. and Deanne W. Anthony; Clovis R. Weatherford and Jo Ann Weatherford, Trustees of the Clovis Weatherford Family Trust; Jere D. Smith, Jr. and Bonnie L. Smith; Rowdy Morris; Ralph Crigler and Kathleen Crigler; Bradford G. and Suzanne Warren; John and Ellen E. Mcdonnell; Calvin and Jo Woodall, Defendants/Appellees, Robert A. Hughes and Karen J. Hughes; James L. Swinney and Frances L. Swinney, Trustees of the Swinney Family Revocable Trust; Tearsa L. Pennell; John L. George, Richard E. George; Nowata Bancshares, Inc.; Jack E. Renegar and Alma J. Renegar, Trustees of the Jack E. Renegar and Alma J. Renegar Declaration of Trust; Thomas L. McCrory and Geraldine McCrory as Trustees of the Thomas L. McCrory and Geraldine G. McCrory Revocable Living Trust; Bob R. Jones and Linda G. Jones; Larry J. Hestand and Janell M. Hestand; Herbert S. Hestand and Billie A. Hestand; Mary Fran Bonham; Guy Sutherland and Claire Sutherland; Peter M. Crow and Carol Anne Crow; Gayle L. Edmondson, Trustee of the Lyon Family Trust; Patricia Ann and Dominic P. Menton; Charles Sanders Homes, Inc.; David Golzar and Marsha Golzar; Jan Galbraith; Kenneth W. Gibbons and A. Karen Gibbons; LM & Associates L.C.; Randolph James Aab; Robert L. and Janis K. Mattox; Davis W. Scarmardo; Robert E. and Judy L. Frey; Christopher M. Wilcox; James G. Gillett and Mary Ann Gillett; Richard and Anita Frey; John A. Reed and Mary A. Reed; Mark D. Quinlan and Shawn A. Quinlan; Larry Kirk; Thomas W. Linam and Susan J. Linam; Beverly K. Dill; and any and all successors of any and all defendants, Defendants.
    No. 95,449.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    April 19, 2002.

      Kort A. BeSore, Besore & Hunt, P.C., Grove, Oklahoma, for plaintiff/appellee/coun-ter-appellant.
    Kenneth M. Smith, Robert P. Skeith, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, Oklahoma, for defendants/appellants/counter-appellees, Meghan Coves Property, Inc. and Meghan Coves Builders, L L.C.
    W. Neil Wilson, Wallace, Owens, Landers, Gee, Morrow, Wilson, Watson & James, Miami, Oklahoma, for defendants/appellees, Jackie Dale Pittman and Linda Kathryn Pittman, Co-Trustees of the Jackie Dale Pittman and Linda Kathryn Pittman Living Trust.
    John B. DesBarres, McGivern, Gilliard & Curthoys, Tulsa, Oklahoma, for defendants/appellees, Niles Q. Hanlin and Evelyn V. Hanlin, Trustees of the Niles Q. Hanlin and Evelyn V. Hanlin Trust; and Steve E. Wise and Beverly A. Wise.
    Paul A. Derks, Wilburn & Masterson, Tulsa, Oklahoma, for defendants/appellees, Rowdy Morris; E. Doyle Newcomb; Betty Pitts Cartwright; K. and R. Crigler; Lon Unsell; F.S. and F. Cronk; and Bruce Borders; Calvin and Jo Woodall.
    Tom H. Gudgel, Stauffer, Rainey & Gud-gel, Tulsa, Oklahoma, for defendants/appel-lees, Leon P. Jacobs and Patty J. Jacobs; James A. Eaton, Jr. and Pam A. Miller; Brian L. Schwartz; Gregory C. Garland and Laura Gail Garland, successors in interest to Neal Fowler Lehman and Marilyn Kay Lehman; Coralea Bowerman, Trustee of the Coralea Bowerman Trust, successor in interest to Bobby L. Short and Marilee C. Short; Johnny P. Ryburn and Particila P. Ryburn, Co-Trustees of the Ryburn Family Trust; Rowena Wyvern Beach, Trustee of the Rowena Wyvern Beach Revocable Living Trust; Bill D. Strange and Reva E. Strange; Bradford G. Warren and Suzanne Warren; John W. McGhee, Jr. & Dalene S. McGhee, Trustees of the John W. McGhee, Jr. and Dalene S. McGhee Trust, successors in interest to John W. McGhee and Dalene S. McGhee; Ronald G. Matthews and Joan A. Matthews, Co-Trustees of the Ronald G. and Joan A. Matthews Family Trust; William Laurence Mocha, Trustee of the Revocable Trust Agreement of William Laurence Mocha; John E. McDonnell and Ellen McDonnell, successors in interest to James D. Schultz and Gail A. Schultz; Orville Cherry and Catherine Cherry; Richard L. Ryan, Jr. and Beverly A. Ryan; Roger D. Hartman and Wanda L. Hartman; M. Duane Dunham and Linda S. Dunham, Trustees of the Dun-ham Family Revocable Trust; John William Anthony, Jr. and Deanne W. Anthony; Clovis R. Weatherford and Jo Ann Weatherford, Trustees of the Clovis Weatherford Family Trust; Charles S. Baldwin and Helen Jo Baldwin; Max A. Windsor and Connie R. Windsor; C.F. Perry, Jr. and Betty A. Perry, Trustees of the C.F. Perry, Ir. and Betty A. Perry Revocable Trust; Lorna A. West-berg and Constance C. Allen; Margaret A. Ballad, Trustee of the Margaret A. Ballad Revocable Living Trust; Marshall Heatherly, Jr. and Joyce A. Heatherly; Mary Alice Jones, Trustee of the Mary Alice Jones Trust; Kathleen Paisley; and Julie Garzanel-H and James W. Garzanelli.
    James K. Secrest, II, Richard C. Honn, Secrest, Hill & Folluo, Tulsa, Oklahoma, for defendants, Angela A. Miller; Hugh K. Charles; Robert J. Krueger and Barbara M. Krueger; Kimberly A. Hall; Donald Ray Meints and Rene Cheryl Meints; Lee F. Hudson and Judith Hudson; Gifford W. Brossett and Janice B. Brossett; Yolanda Hill; Jere D. Smith, Jr. and Bonnie L. Smith; Neal F. Lehman and Marilyn K. Lehman; and Helen L. George.
   BUETTNER, J:

T1 Meghan Coves is a unit ownership estate development. The Declaration of Unit ownership for Meghan Coves Condominium Estates was filed in 1983. At the time of this lawsuit, about 78 of the planned 179 condominium units had been built and were owned by third parties. Plaintiff Meghan Coves Association, Inc. (Association) denied membership in the Association to Defendant Meghan Coves Property, Inc., effectively stopping completion of the development. Among other things, the trial court ruled that a "unit" had to be built and ready for habitation before the owner was eligible for membership in the Association. It also held that Meghan Coves Property, Inc. held fee simple title in the platted land containing unbuilt units. We affirm.

12 Defendants/Appellants/Counter-Appel-lees Meghan Coves Property, Inc. and Meghan Coves Builders, L.L.C. (collectively Developer) contend that the trial court erred in holding that it was not a unit owner until a structure is built. Developer also claims the court erred when it held that Developer did not have or own an undivided interest in the common elements until it had constructed a unit.

138 On counter-appeal, Plaintif{/Appel-lee/Counter-Appellant Meghan Coves Association, Inc. (the Association) claims that the trial court erred in determining that Developer was the owner of the fee simple title to all the land within the platted. but unbuilt units in the condominium estates. It also maintains that the trial court erred in holding that Developer was liable for dues and assessments only for the constructed units it owns.

4 The trial court certified the matter for review pursuant to 12 0.S.Supp.1995 § 994 on the ground that there was no just reason for delay even though the order did not resolve all the pending claims. The court's ruling decided issues raised on the Association's Motion for Summary Judgment, Developer's Counter-Motion for Summary Judgment filed February 8, 2000, and Developer's second Motion for Summary Judgment, filed March 31, 2000. In decisions rendered based on motions for summary judgment, because the ultimate determination addresses questions of law, the "... appellate standard of review of a trial court's grant of summary judgment is de novo." Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.

T5 The parties dispute the trial court's fifth, sixth and seventh findings:

5. After hearing argument and reviewing the briefs, the Court finds that there is no legitimate dispute about the facts material to the Fifth Cause of Action as set forth in the Petition filed by [Association] under Case No. CV-98-201 and judgment should be entered as a matter of law decreeing that the Declarant must own a constructed unit to be considered a member of Meghan Coves Association, Inc., and to exercise and enjoy the rights, duties and obligations of a member of the Association, including voting on any Association matters pursuant to the Declaration of the Bylaws.
6. After hearing argument and reviewing the briefs, the Court finds there is no legitimate dispute about the facts material to the Third and Fifth Causes of Action as set forth in the Petition filed by [Association] under Case No. CV-98-201 and judgment should be entered as a matter of law decrecing that the Declarant shall be liable for dues and assessments only for constructed units owned by the Declarant.
7. After hearing argument and reviewing the briefs, the Court finds there is no legitimate dispute about the facts material to the First Cause of Action as set forth in the Petition filed by [Association] under Case No. CV-98-201 and judgment should be entered as a matter of law decreeing that [Developer] is the owner of the fee simple title to all of the land within the footprint of the platted but unconstructed units in Meghan Coves Condominium Estates as shown on the plat attached as Exhibit "B" to the original Declaration of Unit Ownership Estates for Meghan Coves Condominium Estates. The Court additionally finds and therefore rules that [Developer] does not have or own an undivided interest in the common elements until [Developer] has a constructed unit.

T6 The Oklahoma Unit Ownership Estate Act, 60 0.9.1991 $ 501 et seq., defines "unit."

"Unit" means an enclosed space consisting of one or more rooms occupying all or part of a floor or floors in a building of one or more floors or stories regardless of whether it be designed for residence, for office, for the operation of any industry or business, or for any other type of independent use, provided it has a direct exit to a thoroughfare or to a given common space leading to a thoroughfare; ....

60 0.8.1991 § 503(b)

T7 The Declaration and statutory language defining "unit" is clear that a unit is a constructed thing, not the promise of a construction. The Declaration specifically excludes land, which is essentially all that the Developer owns absent construction. The Developer argues that 60 0.8.1991 § 508(r) which defines "unconstructed unit" or "un-constructed building" supports its interpretation that units exist before construction. However, the definition contemplates the beginning of construction of a unit or building and then defines when construction will be deemed completed. It does not support Developer's argument that raw land may be considered units. Developer's reliance on such cases as Pilgrim Place Condominium Association v. KRE Properties, Inc., 666 A.2d 500 (Me.1995) for the proposition that a "condominium is created by the act of recording a declaration, not by the erection of a physical structure. .... " is inapplicable in Oklahoma. The Supreme Judicial Court of Maine applied its statutory language to resolve the questions before it. "A condominium may be created pursuant to this Act only by recording a declaration executed in the same manner as a deed, by all persons whose interests in the real estate will be conveyed to unit owners and by every lessor of a lease...." 38 M.R.S.A. § 1602-101(a). Oklahoma law is dissimilar to that of Maine. The declaration creating and establishing unit ownership estates must contain many particulars such as a description of the land, 60 ©.8.1991 § 514, but units (unit ownership estates) are conveyed by deed. 60 0.8.1991 § 515. These requirements certainly contemplate a constructed unit rather than an idea expressed on paper. The trial court did not err in ruling that a unit did not exist until it was built.

¶ 8 Related to the definition of "unit" is the question of eligibility for membership in the Association. The trial court held that Developer had to be the owner of a unit before it could be considered a member of the Association. A "council of unit owners" means "all the unit owners." 60 0.S8.1991 § 508(m). If Developer builds a unit and retains title, then, according to Article 7.1, it automatically becomes a member of the Association.

9 The trial court also held that Developer was liable for dues and assessments only for any constructed units it owned. The Declaration in Article VIII makes it clear that the Association makes assessments and unit owners are liable for payments of assessments. Developer's liability is limited to 20% of any assessment for units it owns and which are unoccupied. This provision confirms that Developer could be a member of the Association when it owned units.

¶10 We also agree with the determination of the trial court that Developer owns fee simple title to all of the land within the footprint of the platted but unbuilt units. The Declaration specifically states that De-clarant was "the owner of the fee simple title in and to the following described land situated in Delaware County, Oklahoma [description omitted here] upon which Declarant desires to construct single family residences and town houses... .. " It further states that "Declarant desires to convert all of the Property to Unit Ownership Estates (hereinafter called 'Condominiums') under the Oklahoma Unit Ownership Estate Act; ...." The Declaration was properly filed and there was no dispute concerning whether Developer had fee simple title to convey the units already built and sold. It is also clear that the fee owner may by deed convey a unit ownership estate, 60 0.98.1991 § 504 and 575, which is a conveyance of exclusive ownership and possession of a unit. See 60 0.8.1991 § 511 (no lien shall be effective against the property as a whole, but only against each unit ownership estate). As unit ownership estates are conveyed to unit owners, the Declarant's ownership interest diminishes but it is not extinguished simply because units are constructed and conveyed. The Declarant and its successors clearly retain the right to complete the construction of the number of units designated in the Declaration.

¶11 Finally at issue is the trial court's ruling that Developer does not have to own an undivided interest in the common elements until Developer has a constructed unit. The law plainly states that unit owners are "entitled to an undivided interest in the common elements in the ration expressed in the declaration." 60 O.S.1991 § 505(A). Onee it is understood that a unit must be constructed in order to be a unit, then this conclusion naturally follows. There was no error on this account.

112 For the reasons stated, we AFFIRM the order entered by the trial court, filed October 18, 2000 and REMAND the case to the trial court for resolution of the reserved issues.

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

      . In the Journal Entry of Judgment, the parties stipulated that Developer was the owner of constructed Unit 19.

      . Developer's motion to strike the Association's counterclaim is denied. Developer's motion to strike the Association's Response to Petition in Error is denied. Developer's Motion to Strike Response to Petition in Error filed by Appellees Miller; Charles; Robert J. and Barbara Kreuger; Hall; Donald Ray Meints and Rene Cheryl Meints; Lee F. Hudson and Judith Hudson; Gif ford W. Brossett and Janice Brossett; Hill; Jere D. Smith, Jr. and Bonnie L. Smith; Neal F. Lehman and Marily K. Lehman; and George is denied.

      . The Association was called MCA in the trial court.

      . The parties stipulated that MCPI stood in the shoes of the original Declarant.

      . The Declaration is consistent "(O) "Unit" means an enclosed space consisting of one or more rooms which is designed for a single family residence or as part of a townhouse. A Unit does not include any portion of the land nor Common Elements constituting a part of the property."

      . 60 0.$.1991 § 503(r): "Unconstructed unit" or "unconstructed building" means a unit or building as the case may be, which is owned by the declarant and shown on the plan attached to the declaration pursuant to Section 516 of this title, the construction of which has not been completed by the declarant at the time of recordation of the declaration. For purposes of this chapter a building is completed upon the completion of any unit in the building and a unit is completed when its construction is finished to the point that it is ready for occupancy.

      . Section 514 requires a description of the building, the number of stories, basement, units, and the principal materials of which it is constructed.

      . The trial court determined in its order that Developer had one unit built. Membership in the Association and dues and assessments will be determined on remand of this case.

      . "8.11 notwithstanding any provisions to the contrary contained herein, Declarant shall be required to contribute only twenty percent (20%) of the declared assessments for all units owned by it, provided, said units subject to the reduced assessments are unoccupied."