text:
    David LANGLOIS and Barbara Langlois, Plaintiffs-Appellees and Cross-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EL PASO, Defendant-Appellant and Cross-Appellee.
    No. 02CA0607.
    Colorado Court of Appeals, Div. I.
    Sept. 11, 2003.

      Hanes & Schutz, P.C., Timothy J. Schutz, Elana L. Sabovic, Colorado Springs, Colorado, for Plaintiffs-Appellees and Cross-Appellants.
    Vaughan & Demuro, Gordon L. Vaughan, Sara Ludke Cook, Colorado Springs, Colorado, for Defendant-Appellant and Cross-Ap-pellee.
   Opinion by

Judge KAPELKE.

Defendant, the Board of County Commissioners of the County of El Paso, appeals the judgment entered by the trial court granting injunctive relief in favor of plaintiffs, David Langlois and Barbara Langlois. The Board also challenges the trial court's denial of its motion to dismiss or for summary judgment on plaintiffs' breach of contract claim. By cross-appeal, plaintiffs challenge the dismissal of their trespass and nuisance claims against the Board and the directed verdict for the Board on their breach of contract claim. We affirm in part and reverse in part.

This action arises from the flooding of plaintiffs' property caused by a drainage culvert built by the Ridge at Fox Run, LLC (RFR) at a new subdivision.

As a condition to the Board's approval of RF R's final plat of the subdivision, the Board and RFR entered into a Subdivision Improvements Agreement (SIA), as provided for by § 80-28-1837, C.R.S.2002, and the El Paso County subdivision regulations. Under the SIA, RFR was required to provide collateral in the form of a letter of credit to guarantee its performance in constructing improvements in accordance with specifications. The Board was to release the collateral as RFR completed the improvements to the Board's satisfaction.

RFR installed a culvert that was not included on the drainage plan for the subdivision. The culvert directed runoff from storms across plaintiffs' property, causing repeated flooding. Despite plaintiffs' complaints about the eulvert's causing flooding, the Board accepted the drainage improvements and released the collateral to RFR.

Plaintiffs brought this action against RFR and the Board, asserting claims for trespass, nuisance, and breach of the SIA. They also sought an award of damages and injunctive relief mandating removal of the culvert and prohibiting the Board and RFR from trespassing on their property.

Shortly after the action was filed, the Board and RFR jointly constructed a new drainage system that routed storm water away from the culvert. Additionally, a box with a steel grate on the top was constructed over the culvert. The box prevents water from entering the culvert unless the water level becomes high enough to spill over the top of the box, which would occur if the new drainage system were to become blocked or if there were a hundred-year storm.

The Board filed a motion to dismiss or for summary judgment on each of plaintiffs' claims. In its motion, the Board argued, inter alia, that it was immune from liability for plaintiffs' claims pursuant to the Colorado Governmental Immunity Act (CGIA), § 24-10-101, et seq., C.R.8.2002.

The trial court granted the motion to dismiss as to plaintiffs' trespass and nuisance claims, but denied it as to the breach of contract claim.

At trial, at the close of plaintiffs' case-in-chief, the Board moved for dismissal of the injunctive relief claim and for entry of a directed verdict on the breach of contract claim. The court denied the motion to dismiss and granted the motion for directed verdict.

The jury returned a verdict for plaintiffs on their trespass and nuisance claims against RFR, and the court granted an injunction requiring the Board to remove or seal the culvert. The court entered judgment accordingly.

I. Standing

Because it is a threshold issue, we first address the Board's contention that the trial court erred in finding that plaintiffs had standing to bring the claim for breach of the SIA. We reject the contention.

The SIA provides that "any purchaser of any lot in the [subdivision] shall have the authority to bring an action for injunctive relief to enforce any ... provision of this Agreement and for damages arising out of failure to adhere to any such ... provision of this Agreement."

Section 30-28-137(4), C.R.S8.2002, contains provisions nearly identical with those of the SIA: "[Alny purchaser of any lot ... in a recorded plat ... shall have the authority to bring an action for injunctive relief to enforce any ... provision of a subdivision improvements agreement and for damages arising out of failure to adhere to any such ... provision of a subdivision improvements agreement."

Under the plain language of both the SIA and § 30-28-137(4), the purchaser of a lot has standing to bring an action for damages and injunctive relief for breach of the SIA. Neither the SIA nor the statute limits such actions to claims against the developer or precludes contract claims against the contracting governmental entity.

Thus, the trial court correctly held that plaintiffs, as purchasers of a lot in the new development, had standing to assert a claim against the Board for alleged breach of the SIA,

We next address the contentions raised by plaintiffs in their cross-appeal.

II. Dismissal of Trespass and Nuisance Claims

Plaintiffs contend that the trial court erred in dismissing their trespass and nuisance claims against the Board as barred by the CGIA. We disagree.

Section 24-10-106(1)(f), C.R.S.2002, provides that sovereign immunity is waived by a public entity in an action for injuries resulting from the operation or maintenance of any public water facility or sanitation facility. However, § 24-10-106(4), C.R.S.2002, limits the seope of such a waiver:

No rule of law imposing absolute or strict liability shall be applied in any action against a public entity ... for an injury resulting from a dangerous condition of, or the operation and maintenance of, a public water facility or public sanitation facility. No liability shall be imposed in any such action unless negligence is proven.

(Emphasis added.)

In Lawrence v. Buena Vista Sanitation District, 989 P.2d 254, 256 (Colo.App.1999), a division of this court held that "in actions for injuries resulting from a dangerous condition of, or the operation and maintenance of, a public water facility or public sanitation facility, § 24-10-106(4) operates to bar claims that would otherwise allow recovery without a showing of negligence."

Plaintiffs urge that Lawrence was wrongly decided and that we should therefore decline to follow it. However, because we agree with both the analysis and holding in that case, we find it dispositive here.

We reject plaintiffs' argument that the holding in Lawrence was incorrect because the division applied an erroneous rule of interpretation. Specifically, they maintain that the division in Lawrence construed the exceptions to governmental immunity narrowly, rather than liberally, as required under Corsentino v. Cordova, 4 P.3d 1082 (Colo.2000). While we agree that the opinion in Lawrence refers to a rule of interpretation that is contrary to that approved in Corsenti-mo, the division's holding in Lawrence was not based on that incorrect rule, but instead, on application of the plain language of § 24-10-106(4). here. Accordingly, we find no error

III. Directed Verdict on Contract Claim

Plaintiffs next contend that the trial court erred in granting a directed verdict for the Board on their breach of contract claim. Again, we disagree.

Directed verdicts are not favored. Flores v. Am. Pharm. Servs., Inc., 994 P.2d 455 (Colo.App.1999). A motion for directed verdict may be granted only where the evidence, considered in the light most favorable to the nonmoving party, compels the conclusion that reasonable people could not disagree and that no evidence, or legitimate inference from the evidence, has been presented upon which a jury verdict against the moving party could be sustained. McGlasson v. Barger, 163 Colo. 438, 431 P.2d 778 (1967).

Here, the trial court granted a directed verdict based on its conclusion that the SIA did not impose any legal obligation on the Board to withhold funds from the letter of credit or to bring an action against RFR to enforce the terms of the SIA.

As relevant here, the SIA provided that in the event the Board determined that any improvement was not constructed in substantial compliance with specifications, the Board "shall furnish [RFR] a list of specific deficiencies and shall be entitled to withhold collateral sufficient to ensure such substantial compliance" (emphasis added). The SIA also stipulated that in such event the Board "may withdraw and employ from the deposit of collateral such funds as may be necessary to construct the improvements in accordance with the specifications" (emphasis added). The SIA thus gave the Board the right to withhold the collateral, but did not impose any duty to do so.

Similarly, while another provision of the SIA gave the Board the authority to bring an action for injunctive relief or damages for RFR's failure to adhere to provisions of the agreement or the plat, it did not impose any obligation on the Board to file such an action. Accordingly, the trial court did not err in determining that plaintiffs had failed to show a breach of contract by the Board and in granting a directed verdict for the Board on that claim. -

In view of our holding on this issue, we need not address the Board's contention that the trial court erred in finding that plaintiffs' breach of contract claim was not barred by the CGIA.

IV. Permanent Injunction

The Board contends that plaintiffs failed to establish the requirements for permanent in-junctive relief and that the trial court therefore abused its discretion in granting such relief. We agree.

The grant or denial of injunctive relief lies within the sound discretion of the trial court and will be reversed only upon a showing of an abuse of that discretion. Scoft v. City of Greeley, 931 P.2d 525 (Colo.App.1996).

Here, in granting the injunction, the trial court addressed the requirements for a preliminary injunction set forth in Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo.1982). The party seeking such relief must demonstrate that: (1) there is a reasonable probability of success on the merits; (2) there is a danger of real, immediate, and irreparable injury that may be prevented by injunctive relief; (@) there is no plain, speedy, and adequate remedy at law; (4) the granting of an injunction will not disserve the public interest; (5) the balance of equities favors the injunction; and (6) the injunction will preserve the status quo pending a trial on the merits.

The trial court noted, "In the context of this request for permanent injunctive relief, the Court finds criteria 2 through 5 to be the most germane."

The requirements for a permanent injunction are essentially the same as those for a preliminary injunction; however, the applicant must show actual success on the merits rather than merely a reasonable probability of success. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 1404, 94 L.Ed.2d 542 (1987).

A party seeking a permanent injunetion must show that; (1) the party has achieved actual success on the merits; (2) irreparable harm will result unless the injunction is issued; (8) the threatened injury outweighs the harm that the injunction may cause to the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir.2003)(citing Amoco Prod. Co. v. Vill. of Gambell, supra ).

In granting permanent injunctive relief against the Board, the court did not make any finding as to whether plaintiffs had demonstrated actual success on the merits. Although plaintiffs were successful on their trespass and nuisance claims against RFR, that company was no longer the owner of the culvert and could therefore not be enjoined to remove or plug it.

As discussed above, we have concluded that the trial court did not err in dismissing plaintiffs' tort claims against the Board and in entering a directed verdict for the Board on plaintiffs' breach of contract claim. Thus, plaintiffs were wholly unsuccessful on their claims against the Board.

Because plaintiffs did not demonstrate actual success on the merits as to any of their claims against the Board, we conclude that the trial court abused its discretion in granting a permanent injunction requiring the Board to plug or remove the culvert.

That part of the judgment that granted permanent injunctive relief against the Board is reversed. In all other respects the judgment is affirmed.

Judge TAUBMAN and Judge LOEB concur.


source: Caselaw Access Project

author: KAUGER, J:

license: Public Domain

text:
    2003 OK 89
    APLE AUTO CASH EXPRESS, INC. OF OKLAHOMA, an Oklahoma corporation, Petitioner/Appellant, v. STATE of Oklahoma, ex rel. OKLAHOMA DEPARTMENT OF CONSUMER CREDIT, Respondent/Appellee.
    No. 97,635.
    Supreme Court of Oklahoma.
    Oct. 21, 2003.

      James L. Kincaid, Gary L. Betow, Kayci B. Hughes, Tulsa, OK, for Petitioner/Appellant.
    Walter W. Jenny, Jr., Assistant Attorney General, Oklahoma City, OK, for Respondent/Appellee.
   KAUGER, J:

1 The question presented on certiorari is whether a company's purchase of customers' vehicles at a reduced price and the subsequent lease-back to the customers as rent-to-own vehicles falls under the Oklahoma Rental-Purchase Act, 59 0.98.2001 § 1950 et seq. or whether such transactions should be regulated as a supervised consumer loan under 14A 0.$.2001 § 1-101 et seq. We hold that these transactions are nothing more than disguised loans, rather than bona fide sales or rental agreements, and should be regulated as such.

FACTS

1 2 The Oklahoma Department of Consumer Credit (the Department) administers and enforces the Oklahoma Rental-Purchase Act (Rental Act), the Oklahoma Uniform Consumer Credit Code (the Code), and the Oklahoma Pawnshop Act. In August of 2001, the appellant, Aple Auto Cash Express, Inc. (Aple) incorporated as an Oklahoma corporation. It sought and obtained a rent-to-own license from the Department, but did not seek a license as either a supervised lender or pawnbroker.

18 After securing the rent-to-own license, Aple opened for business in Tulsa, Oklahoma, and began entering into transactions with customers. It posted a notice on its premises that it did not make loans. However, Aple advertised in the yellow pages under listings for loans and pawnbrokers that it provided "fast cash" for vehicle buy/rental-purchase programs. Aple did not have an inventory of vehicles to rent-to-own to the public. Rather, when a customer came in for "fast cash", Aple purchased the customer's car at a reduced price and executed a rental-purchase agreement to rent the car back from Aple, with an option to purchase if all of the monthly payments were made. The contract also provided that the customers could terminate the agreement by returning the vehicle to Aple in good condition and paying all rental payments through the date of return.

T4 In November of 2001, the Department notified Aple that its' license was suspended, pending an investigation and hearing to determine if the license should be permanently revoked. On November 830, 2001, the Department issued notice of a hearing scheduled before the administrator of the Department for December 18, 2001. It also issued an order to show cause and to cease and desist, The notice complained of 176 counts in which the Department alleged violations of either supervised loan laws and finance charge limits or pawnbroker lHieensing and advertising laws.

T5 A hearing was held on December 18, 2001, at which most of the facts were stipulated. At the hearing, the examiner for the Department testified that if the transactions were treated as bona fide rent-to-own transactions, there was no limit on the charges that could be assessed. The examiner noted that information regarding the proceeds from the sales of some of the vehicles was lacking because some of the documentation was kept at the home office in another state. However, the examiner also testified that some of the transactions, if interpreted to be supervised loans, would equate to interest at annual percentage rates of 285.65%, 290.99%, and 484.33%. For example, the examiner's investigation form shows a sale in which a consumer sold Aple a pick-up truck for $2,500.00 and agreed to lease it back for 156 weeks at $69.00 for a total of $10,764.00. Several similar transactions were also reported.

T6 On January 3, 2002, the Department's administrator issued findings of fact and conclusions of law. It determined that Aple's rent-to-own operation was disguised as a supervised loan business. Because Aple did not comply with the requirements for being a supervised lender, the administrator ordered the contracts voided and the return of money collected from the customers.

17 On, January 9, 2002, Aple appealed the administrator's order to the district court pursuant to the Oklahoma Administrative Procedures Act, 75 0.8.2001 § 250 et seq. A hearing was held on February 8, 2002, and on March 26, 2002, the trial court entered a final order affirming the administrator's order. The trial court stayed enforcement of the order until the final disposition of the cause on appeal. The Court of Civil Appeals reversed and we granted certiorari on September 18, 2008.

18 We must decide whether the facts determined by the agency are supported by substantial evidence, and the order is otherwise free of error. If so, the decision of the agency must be affirmed. Reversal is appropriate if the reviewing court finds that the agency made its decision in excess of statutory authority or jurisdiction or entered its order based on an error of law. Here, the basic facts were stipulated and are not in dispute. The issue on appeal involves a question of the application of the stipulated facts to the law.

19 THE BUSINESS TRANSACTIONS ARE NOTHING MORE THAN DISGUISED LOANS, RATHER THAN BONA FIDE SALES OR RENTAL AGREEMENTS, AND SHOULD BE REGARDED AS SUCH.

110 Aple argues that: 1) 59 0.9.2001 § 1951 expressly defines the parameters of rental-purchase transactions; 2) the types of transactions it engages in are in compliance with the plain and unambiguous language of § 1951; and 3) a rental-purchase agreement which complies with § 1951 is not a consumer loan as defined by the Code. The Department contends that: 1) Aple seeks to escape the regulation of consumer loans by merely labeling its transaction a rent-to-own agreement; and 2) there is no statutory authority which would allow Aple to first purchase property from a consumer and lease it back to them to qualify as a bona fide rent-to-own agreement.

11 Oklahoma's Uniform Consumer Credit Code (the Code) was enacted to simplify and clarify consumer credit transactions and to protect consumers against unfair and un-serupulous creditors. Supervised loans are among the types of transactions regulated by the Code. Title 14A 0.98.2001 § 3-501 provides:

"(1) Supervised loan' means a consumer loan in which the rate of the loan finance charge exeeeds ten percent (10%) per year as determined according to the provisions on loan finance charge for consumer loans (Section 3-201).
(2) 'Supervised lender" means a person authorized to make or take assignments of supervised loans."

Title 14A 0.$.2001 § 3-104 defines a consumer loan as:

"... a loan made by a person regularly engaged in the business of making loans in which
(1) the debtor is a person other than an organization;
(2) the debt is incurred primarily for a personal, family or household purpose;
(3) either the debt is payable in installments or a loan finance charge is made; and
(4) either the principal does not exceed Forty-five Thousand Dollars ($45,000.00) or the debt is secured by an interest in land."

T 12 The Code requires supervised lenders to obtain a license; register a service agent in Oklahoma; post a bond; submit to a erimi-nal history check; and retain records subject to examination to determine compliance with the Code. Under the Code, a lender must make lending disclosures to consumers regarding the details of loan transactions and is limited on the amount of loan finance charges it may assess.

{13 The Oklahoma Rental-Purchase Act, 59 0.8.2001 § 1950 et seq (the Rental Act) governs rent-to-own transactions otherwise known as "rental-purchase agreements". The Rental Act requires lessors to obtain a license and make specific disclosures to consumers." It also provides for damages and penalties for violations. Section 1951 of the Rental Act defines rental-purchase agreements, providing in pertinent part:

"... 'Rental-purchase agreement' means an agreement for the use of personal property by a consumer for personal, family, or household purposes, for an initial period of four (4) months or less, that is renewable with each payment after the initial period, and that permits the consumer to become the owner of the property. An agreement that complies with this definition is not a consumer credit sale as defined in Section 2-104 of Title 14A of the Oklahoma Statutes, or a consumer loan as defined in
Section 3-104 of Title 14A of the Oklahoma Statutes, or a refinancing or consolidation thereof, or a consumer lease as defined in Section 2-106 of Title 14A of the Oklahoma Statutes, or a lease or agreement which constitutes a security interest as defined in paragraph (87) of Section 1-201 of Title 12A of the Oklahoma Statutes or a lease or agreement which constitutes a sale of goods as defined in subsection (4) of Seetion 2-105 of Title 14A of the Oklahoma Statutes. ..."

T14 Under the Rental Act, transactions which meet the definition of rental-purchase agreements are not considered consumer loans. Some states have expressly clarified that statutes regulating rent-to-own transactions were not intended to include sale/leaseback arrangements such as Able's. The Oklahoma Legislature did not expressly refer to sale/lease-back transactions.

115 Aple devotes much of its argument as to whether 59 0.8.2001 § 1951 is ambiguous and how, if at all, it could be construed. However, the crux of the dispute is not about statutory construction." Rather, it is about how Aple's sale and lease-back transactions should be construed; and whether the transactions, when taken as a whole, fall within the parameters of the Rental Act or whether the transactions were actually disguised consumer loans, governed by the Consumer Credit Code.

{16 The Department relies on Sal Leasing, Inc. v. State ex rel. Napolitano, 198 Ariz. 434, 10 P.3d 1221 (2000) and Pendleton v. American Title Brokers, Inc., 754 F.Supp. 860 (S.D.Ala.1991) as examples in support of its argument that the transactions are not bona fide rental agreements governed by the Act. Sal Leasing involved a business which, like Aple, purchased customers' vehicles at a reduced price and leased them back to the customers with an option to repurchase. It was not licensed as either a consumer lender or pawnbroker. After the State of Arizona began investigating the company, the business sought a declaratory judgment, seeking a determination that it was not violating the State's Consumer Lender's Act. The trial court determined that the company's transactions were not consumer loans within the meaning of the Consumer Lenders Act. However, the Arizona Court of Appeals disagreed and reversed.

117 The Sal Court recognized that lease-purchase contracts were often used as devices to disguise usurious loans. It applied six factors to determine whether the transaction was structured as a legitimate sale with an option to repurchase or whether the vehicle was actually a security device for a loan. The Sal Court considered: 1) the prior negotiations of the parties; 2) the distress of the grantor; 3) the fact that the loan amount advanced was comparable to the amount that the grantor needed to pay an existing indebtedness; 4) the amount of the consideration paid in comparison to the actual value of the property in question; 5) a contemporaneous agreement to repurchase; and 6) the subsequent acts of the parties, as a means of

discerning the interpretation which they gave to the transaction. It also recognized that no one factor was conclusive, but that a combination of several factors might indicate that the entire transaction functioned as a loan rather than a bona fide rental agreement. After evaluating the factors, the Sal Court determined as a matter of law that the transactions were in reality loans in which the vehicle transfers served as security devices, and not bona fide sales.

¶ 18 Pendleton, v. American Title Brokers, Inc., 754 F.Supp. 860 (S.D.Ala.1991), involved a company which advertised that customers could pawn their vehicle's title for quick money and keep the car. A customer signed title over to the company and leased the car back for a ten week repayment period. After the car was repossessed and the customer paid the amount owing and the fees due, the customer sued the company for violations of the Truth in Lending Act and the State's Small Loan Act. The Court determined that: 1) the rent paid was a finance charge subject to loan disclosure requirements; and 2) the company was not exempt from the requirements of the Small Loan Act because the scheme was not a bona fide pawnbroking activity, but rather an attempt to evade the requirements of the Small Loan Act.

T19 Both Sal and Pendleton illustrate ways in which the businesses attempted to avoid being subject to laws which apply to lenders by attempting to give the appearance that rather than actually loaning money, they are doing business as something other than a lender-such as a rent-to-own business or pawnbroker. Nevertheless, in both cases, after looking at the transaction as a whole, both courts construed them to be the functional equivalent to lenders.

120 Here, the obvious purpose of the Rental Act is to regulate the transactions of either companies or persons who are in the business of providing goods to consumers on a rent-to-own basis and to protect consumers. To say that Aple is in the rent-to-own business and that its rental agreements are governed by the Rental Act ignores half of the transaction-the half of the transaction where customers are forced to sell their personal property at a reduced price in order to rent it back from Aple to come up with "fast cash." It disregards a situation in which Aple carries no inventory and provides no goods which are generally available to customers to rent-to-own. In short, it ignores the fact that what Aple is doing is the functional equivalent of a short term/high interest loan and that buying the car from the consumer is nothing more than a disguised attempt to hold title to the vehicle as collateral for the loaning of money by casting the transaction in terms of a "rental-purchase agreement". This is contrary to the obvious purposes of both the Rental Act and the Code. Consequently, we hold that the business transactions are nothing more than disguised loans, rather than bona fide sales or rental agreements, and should be regulated as such. We also decline Aple's suggestion to make this decision completely prospective.

CONCLUSION

21 The obvious purpose of the Oklahoma Rental-Purchase Act is to regulate the transactions of either companies or persons who are in the business of providing goods to consumers on a rent-to-own basis and to protect consumers. However, the transactions involved here, when considered as a whole, appear to be nothing more than an illusory attempt by a business to avoid lender usury laws by merely labeling the transaction a "rental-agreement." Because the business transactions are nothing more than disguised loans, rather than bona fide sales or rental agreements, they should be regulated by the Uniform Consumer Code rather than the Oklahoma Rental-Purchase Act."

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED.

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

OPALA, V.C.J., concurs in part, dissents in part.

      . Title 59 0.8.2001 § 1950 et seq.

      . Title 14A 0.$.2001 § 1-101 et seq.

      . Title 59 0.$.2001 § 1950 et seq.

      . Title 14A 0.$.2001 § 1-101 et seq.

      . Title 59 § 1501 et seq.

      . Aple argues that there was no evidence before the administrator showing it purchased vehicles below market value. However, the Department's exhibit 2 shows that a pick-up was purchased for $2,500.00 and included in the exhibit is a market analysis for the pick-up showing the average price to be $6,799.00 for the month in which the truck was purchased.

      . Title 75 0.$.2001 § 250 et seq.

      . Snider v. State ex. rel. Oklahoma Real Estate Com'n, 1999 OK 55, ¶ 8, 987 P.2d 1204; City of Hugo v. State ex rel. Public Employees Relations Bd., 1994 OK 134, ¶ 9, 886 P.2d 485; Tulsa Area Hospital Council, Inc. v. Oral Roberts University, 1981 OK 29, ¶ 10, 626 P.2d 316.

      . City of Tulsa v. Public Employees Relations Bd., 1998 OK 92, ¶ 12, 967 P.2d 1214.

      . Title 59 0.$.2001 § 1951 provides in pertinent part:
      "... 'Rental-purchase agreement' means an agreement for the use of personal property by a consumer for personal, family, or household purposes, for an initial period of four (4) months or less, that is renewable with each payment after the initial period, and that permits the consumer to become the owner of the property. An agreement that complies with this definition is not a consumer credit sale as defined in Section 2-104 of Title 14A of the Oklahoma Statutes, or a consumer loan as defined in Section 3-104 of Title 144 of the Oklahoma Statutes, or a refinancing or consolidation thereof, or a consumer lease as defined in Section 2-106 of Title 14A of the Oklahoma Statutes, or a lease or agreement which constitutes a security interest as defined in paragraph (37) of Section 1-201 of Title 12A of the Oklahoma Statutes or a lease or agreement which constitutes a sale of goods as defined in subsection (4) of Section 2-105 of Title 14A of the Oklahoma Statutes...."

      . We note that throughout Aple's paperwork before the Department and the trial court, Aple refers to several bankruptcy cases in which the courts discussed whether the particular agreements which were involved were notes or security agreements which created a security interest. However, these cases are factually distinguishable from the present case and are inapplicable here.

      . Title 14A 0.$.2001 § 1-101 et seq.

      . Title 14A 0.8.2001 § 1-102 provides in pertinent part:
      "(1) This act shall be liberally construed and applied to promote its underlying purpose and policies.
      (2) The underlying purposes and policies of this act are
      (a) to simplify, clarify and modernize the law governing retail installment sales, consumer credit, small loans and usury;
      (b) to provide rate ceilings to assure an adequate supply of credit to consumers;
      (c) to further consumer understanding of the terms of credit transactions and to foster competition among suppliers of consumer credit so that consumers may obtain credit at reasonable cost;
      (d) to protect consumer buyers, lessees, and borrowers against unfair practices by some suppliers of consumer credit, having due regard for the interests of legitimate and seru-pulous creditors ..."

      . See, 14A 0.$.2001 §§ 3-503-506.

      . See, 14A 0.$8.2001 §§ 3-301-304.

      . See, 14A 0.$.2001 §§ 3-508 and 508B.

      . Title 51 0.$.2001 § 1950 provides:
      "'This act shall be known and may be cited as the Oklahoma Rental-Purchase Act."

      . See, 59 0.$.2001 § 1952.

      . See, 59 0.$.2001 § 1954.

      . See, 59 0.$.2001 §§ 1955 and 1957.

      . See, e.g. Ala. code § 8-25-1 1993 which provides in pertinent part:
      "... (5) RENTAL-PURCHASE AGREEMENT. An agreement for the use of merchandise by a consumer for personal, family, or household purposes, for an initial period of four months or less that is automatically renewable with each payment after the initial period, and that permits the consumer to become the owner of the merchandise. This term does not include any transaction wherein a consumer sells personal property to a merchant and then leases the same personal property back with or without a right to repurchase the property...."
      Texas' Finance Code specifically includes sale and lease-back transactions as loans. Tex. Fin. Code Ann. § 341.001 (2001) provides in pertinent part:
      "... (9) 'Loan' has the meaning assigned by Section 301.002 and includes a sale-lease-back transaction and a deferred presentment transaction...."
      Other states such as Rhode Island have exempted automobiles from rental purchase agreements. RI. Gen. Laws § 6-44-7 2001 relating to rental purchase agreements provides in pertinent part:
      ''This chapter does not apply to: ... (5) Any automobile, truck, or any other vehicular and automotive equipment leases or rental agreement."

      . Title 59 0.$.2001 § 1951, see note 10, supra.

      . Even if this cause were merely about statutory construction, statutory intent is generally ascertained from the whole act, considering its general purpose and objective. Independent School Dist. No. I-20 of Muskogee County v. Oklahoma State Dept. of Educ., 2003 OK 18, ¶ 13, 65 P.3d 612. Statutes are to be construed championing the broad public policy purposes underlying them. Keating v. Edmondson, 2001 OK 110, ¶ 8, 37 P.3d 882. In determining whether a statute applies to a given set of facts, the Supreme Court focuses on legislative intent which controls statutory interpretation. Walker v. Group Health Services, Inc., 2001 OK 2, ¶ 24, 37 P.3d 749. The purposes of the Rental Act and the Code when taken as a whole, function to protect consumers. One example is that the disclosure requirements of the Rental Act mandate that the lessor disclose whether the property is new or used. Title 59 0.5.2001 § 1954 provides in pertinent part:
      "... B. A rental-purchase agreement shall disclose the following items, as applicable:
      1. Whether the property is new or used...."
      If sale and lease-back transactions such as Aple's were included with the confines of the Act, this requirement would be superfluous and meaningless because Aple's customers knew that information before they ever sought money from Aple.

      . Circumstantial evidence of several of the factors discussed in Sal Leasing, Inc. v. State ex rel. Napolitano, 198 Ariz. 434, 10 P.3d 1221 (2000), also exist here. Factors such as: 1) the distress of the grantor; 2) the amount of the consideration paid in comparison to the actual value of the property; and 3) a contemporaneous agreement to repurchase. For example, one application shows that a customer went to Aple just before Christmas indicating that if he didn't get money he would "be in debt/no Christmas." The customer sold his vehicle to Aple for $2,500.00. A market analysis indicates that at the very least it was worth $6,000.00. The total payments on the rent-to-own transaction totaled $10,764.00.

      . Aple insists that the transactions could not be construed as a loan or debt because the customers could terminate the transaction by paying all the rental payments through the date of return and get the vehicle back. Aple's argument is unpersuasive and again ignores the entire transaction. Merely labeling the agreement as a rental agreement ignores that the transaction, when considered as a whole is the functional equivalent of a loan, it ignores that the consequences of a breach of the agreement have the same as a conventional car loan-loss of the vehicle. Unlike a conventional rent-to-own agreement in which the customer makes payments to rent-to-own the property, but has the option to return the property at any time and terminate the agreement, the only way Aples' customers are able to obtain any money from Aple is to first sell their previously paid for personal property and then sell the equity in the vehicle only to buy it back at an exorbitant price.

      . Because we affirm the trial court, Aple's motion to tax costs on appeal is denied. See, 12 ©.S.2001 § 978.

      . Aple argues that because it was completely unforeseeable that the Oklahoma Rental-Purchase Act would not apply to it, then this ruling should not be applied to this cause and be strictly applied prospectively. Neither the United States Constitution nor the Constitution of the State of Oklahoma delineate the effective date of judicial opinions. We may give prospective operation to our announcements when necessary to avoid disruption and to allow a period of adjustment. Campbell v. White, 1993 OK 89, ¶ 18, 856 P.2d 255. In making such a determination, we must consider; 1) the purpose of the new rule; 2) the extent of reliance on old doctrines; and 3) the burden likely to be imposed on administering legal process due to additional litigation or curative actions. Short v. Kiamichi Area Vocational Technical School Dist. No. 7 of Choctaw County, 1988 OK 89, ¶ 19, 761 P.2d 472, cert. denied 489 U.S. 1066, 109 S.Ct. 1342, 103 L.Ed.2d 811. A weighing of these factors does not require that such a pronouncement be given purely prospective effect.

      . Title 59 0.$.2001 § 1501 et seq.

      . Title 14A 0.$.2001 § 1-101 et seq.

      . Title 59 0.$.2001 § 1501 et seq.


author: JOE C. TAYLOR, Presiding Judge.

text:
    2003 OK CIV APP 95
    UNIT PETROLEUM COMPANY, Unit 1986 Energy Income Limited Partnership, and Unit 1987 Employee Oil and Gas Limited Partnership, Plaintiffs/Appellants, v. MOBIL EXPLORATION AND PRODUCTION NORTH AMERICA, INC., and Mobil Oil Corporation, Defendants/Appellees; and BP Amoco Corporation, Intervenor/Thirdparty Plaintiff/Appellee, v. Gothic Energy Corporation, Thirdparty Defendant/Appellee.
    No. 97,837.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    March 11, 2003.
    Rehearing Denied May 23, 2003.
    Certiorari Denied Sept. 8, 2003.

      Richard P. Hix, Richard J. Eagleton, S. Gregory Frogge, Doerner, Saunders, Daniel & Anderson, LLP., Mark E. Schell, Tulsa, OK, for Appellants.
    Robert P. Costello, Freda L. Williams, Oklahoma City, OK, for Appellees.
   Opinion by

JOE C. TAYLOR, Presiding Judge.

{1 Plaintiffs, Unit Petroleam Company, Unit 1986 Energy Income Limited Partnership, and Unit 1987 Employee Oil and Gas Limited Partnership (collectively, Unit), seek review of the trial court's grant of summary Judgment in favor of Defendants, Mobil Exploration and Production North America, Ine., and Mobil Oil Corporation (collectively, Mobil); Intervenor/Third-Party Plaintiff, BP Amoco Corporation (Amoco); and Third-Party Defendant, Gothic Energy Corporation (Gothic). The case concerns balancing of gas production from a Dewey County, Oklahoma, well. The issues are (1) whether Mobil's sale of its interest to Amoco in 1997 entitled Unit to demand immediate cash balancing from Mobil as a matter of law and without a balancing of equities; and (2) whether the trial court's entry of summary judgment was proper under the facts presented. We answer both questions in the negative, and reverse and remand for further proceedings.

I 2 Many of the underlying facts are undisputed. Until February 1997, Mobil and Unit were working interest owners in the USA Spaid #1-5 well in Dewey County. Unit, which is currently an owner, owns approximately 6.8 % interest, and Mobil owned approximately 52.9 % interest. On February 28, 1997, Mobil sold its interest to Amoco, which in November 1997 sold the interest to Gothic. At the time Mobil sold its interest to Amoco, Mobil's interest was overproduced by at least 158,101 mef, and Unit's was under-produced by at least 50,425 mef. Amoco and Gothic, respectively, assumed operation of the well.

13 The JOA between Unit and Mobil was a 1956 "Model Form Operating Agreement," which contains an ownership clause that states in relevant part:

Unless changed by other provisions, all costs and liabilities incurred in operations under this contract shall be borne and paid, and all equipment and material acquired in operations on the Unit Area shall be owned, by the parties as their interests are given in Exhibit "A". All production of oil and gas from the Unit Area, subject to the payment of lessor's royalties, shall also be owned by the parties in the same manner.

There is no separate gas balancing agreement between or among the parties, though the JOA recognizes each working interest owner's right to take production "in kind."

T4 For purposes of the summary judgment motion, it was undisputed that Amoco agreed to indemnify Mobil, and Gothic agreed to indemnify Amoco, for liabilities associated with gas balancing. Neither Mobil nor Amoco obtained Unit's prior consent to their respective assignments of the interest now owned by Gothic, however, and correspondence submitted by Unit indicates that, for several months during mid-1997 and early 1998, Amoco and Gothic were unresponsive to Unit's requests to take make-up gas. In November 1997, Unit made demand on both Mobil and Amoco for immediate cash balancing, and was refused. In March 1998, however, Unit was permitted to begin balance-ing in kind on a monthly basis, and Gothic does not now dispute Unit's right under the JOA to balance in kind. Gothic represented in court filings that Unit is currently "balane-ing in kind at a rate which is approximately double the monthly production volumes [it] would be entitled to based on [its] decimal ownership interest in the well," and that Unit would "remain in a make up status until [its] interest is fully made up."

{5 The parties agree the well has sufficient reserves for Unit to eventually balance in kind and, as of September 2001, Unit was 44,670 mef underproduced. Most of Unit's underproduction accumulated between mid-1988 through mid-1997, and was due to Unit's lack of a gas purchaser during that period

16 Unit filed this action against Mobil on February 22, 1999, alleging that the terms of the JOA, Mobil's overproduced status in the well, and the assignment of Mobil's interest to Amoco entitled Unit to an accounting and immediate cash balancing. Mobil's answer denied Unit's right to cash balance, and asserted, among other affirmative defenses, the statute of limitations and laches. By mid-2001, Amoco had been permitted to intervene in the action and to bring in Gothic as a third-party Defendant. Mobil and Amoco continued to assert Gothic had assumed liability for any imbalances in production. Though it later accepted defense of the case, Gothic also initially denied Hability.

T7 Unit moved for summary judgment on the issue of whether it was entitled to immediate cash balancing as a matter of law. It argued that the JOA created a cotenancy in production, and, under the Supreme Court's decision in Harrell v. Samson Resources Co., 1998 OK 69, 980 P.2d 99, cash balancing became mandatory immediately upon Mobil's sale of its interest-ie., upon the termination of Mobil's cotenant relationship with Unit. Mobil, Amoco, and Gothic objected, asserting that cash balancing was not warranted based on a balancing of the equities in the case, which they asserted included the fact that balancing-in-kind is "preferred" in the industry when the reserves are sufficient, and that "[nlo equitable consideration overrides this presumptively preferred method of balancing." They also argued the statute of limitations begins running on a claim between co-tenants upon "ouster" of one co-tenant by another, and that ouster had not occurred because Gothic had assumed lability for balancing and had honored Unit's right to take in kind. Although it is clear from the record that Mobil claims it is entitled to indemnity from Amoco and/or Gothic for Unit's claim, it is not clear whether Mobil denies that it has any further personal Hability to Unit for Mobil's overproduction.

T8 The trial court refused to order cash balancing. The court rejected Unit's argument that Harrell mandated immediate cash balancing solely on the basis of Mobil's sale of its interest, and found the equities did not require immediate cash balancing. The court also specifically found that the statute of limitations had not yet started to run on Unit's claim, inasmuch as "there was no act in derogation of Unit's rights triggering cash balancing." The court did not delineate what would constitute such "derogation," however, nor did it address the issue of Mobil's future liability to Unit for Mobil's overproduction.

9 Unit appeals, asserting as it did in the trial court that, under Harrell, Mobil's severance of its interest in the well triggered Unit's right to an immediate cash balancing without a balancing of equities. Unit also asserts that Mobil may not escape liability for its obligation to Unit by assigning those obligations to subsequent purchasers.

110 In Harrell, the Oklahoma Supreme Court interpreted ownership and take-in-kind provisions of a JOA identical to those in the JOA between Unit and Mobil. There, the Court held the provisions created "a cotenant-like relationship between the parties as to the gas sold," with each owner having the right to separately take and market its own share, "subject only to a duty to account to the other owners." 1998 OK 69, ¶ 13, 980 P.2d at 108. The duty to account imposes an obligation on a cotenant who removes common property to account to its cotenants "for their proportionate share of the market value of the oil and gas produced less the reasonable and necessary cost of developing, extracting, and marketing the same." Moody v. Wagner, 1933 OK 416, 23 P.2d 683 (syllabus 4); see also Prairie Oil & Gas Co. v. Allen, 2 F.2d 566, 574 (8th Cir.1924).

111 As to wells from which production "takes" are out of balance among cotenants, if there is no specific provision or other agreement governing the situation-as is the case here-Oklahoma courts have recognized three methods by which overproduced coten-ants may "account" to underproduced owners and bring the well into balance: (1) balancing in kind; (2) periodic, pre-depletion cash balancing; and (8) cash balancing upon reservoir depletion. See Harrell, 1998 OK 69, ¶¶ 19, 21, 980 P.2d at 105; Anderson v. Dyco Petroleum Corp., 1989 OK 132, ¶ 10, 782 P.2d 1367, 1373; Beren v. Harper Oil Co., 1975 OK CIV APP 49, ¶¶ 17-20, 546 P.2d 1356, 1359.

112 Though the parties here agree that balancing in kind is the customary and preferred method within the industry, the ultimate determination as to the appropriate method to utilize depends on a balancing of the equities in the case. Courts have not hesitated to apply pre-depletion cash balane-ing in appropriate cireumstances. See, e.g., Heiman v. Atlantic Richfield Co., 1995 OK 19, 891 P.2d 1252; Beren, 1975 OK CIV APP 49, 546 P.2d 1356. In fact, in Harrell the Court ultimately approved the trial court's determination that pre-depletion cash balane-ing of the underproduced plaintiffs' interests was warranted as against the overproduced Samson Resources, because "balancing in kind was not feasible" given Samson's large overage and the uncertain amount of reserves. Id. at ¶ 18, 980 P.2d at 104-05.

1134 A significant issue in Horrell concerned the statute of limitations applicable to the plaintiffs' action against Samson. The plaintiffs had not filed their action until shortly after Samson sold its interest in the well at auction, but had acquiesced in in-kind balancing for more than five years prior to that time. The Court rejected Samson's argument that plaintiffs' claim was time-barred, however, finding instead that, as between cotenants, the statute did not start to run until Samson acted "in derogation of plaintiffls'] rights" by selling its interest. Id. As previously noted, the Court, at the same time, upheld the trial court's order requiring cash balancing by Samson based on its finding that the well was depleting and balancing in kind was not feasible. Thus, in determining whether derogation of plaintiffs' rights had occurred so as to trigger the running of the statute of limitations and warrant pre-depletion cash balancing, the Court looked beyond the mere fact that Samson had sold its interest. Implicit in the Court's finding of derogation was its determination that the trial court's balancing of the equities was the correct approach, and the trial court's conclusion was not against the clear weight of the evidence.

T 14 The Court specifically relied on Ludey v. Pure Oil Co., 1981 OK 527, 11 P.2d 102. Ludey, which also is an accounting action between cotenants in production from a well, held that the relationship among cotenants is one in the nature of a fiduciary or trust, and a tenant in common who receives the common property of the parties, e.g., a stream of production, "holds it as trustee for his coten-ant to the extent of the interest of the coten-ant, who may compel an accounting." Id. at ¶ 19, 11 P.2d at 104 (quoting Rice v. Peters, 128 A.D. 776, 113 N.Y.S. 40 (1908)). The limitations period in such a case, the Court said, does not start to run until termination or repudiation of the trust relationship. Id. at ¶ 20, 11 P.2d at 104; see also McGee v. Harrison, 1954 OK 299, 277 P.2d 161 (statute of limitations does not apply to trust relationship between cotenants until repudiation of such relationship); Becker v. State ex rel. Dep't of Public Welfare, 1957 OK 102, 312 P.2d 935 (syllabus 6) ("[siltatutes of limitation do not begin to run in favor of a trustee who holds in trust until the trustee has clearly repudiated his trust and such repudiation has been brought to the attention of the cestui que trust").

T 15 Applying the foregoing to the case at bar, we find that, under the Oklahoma Supreme Court's holdings in Harrell and Lu-dey, Unit's right to seek cash balancing from Mobil depends on whether Mobil's sale of its interest resulted in the derogation of Unit's rights as a cotenant in production and benefi-clary of the trust relationship with Mobil. This factor cannot be determined without first deciding whether Mobil repudiated its trust relationship with Unit and therefore triggered the running of the statute of limitations. Even though the well may have sufficient reserves to balance in kind, custom and usage in the industry should not be permitted to defeat, directly or indirectly, a coten-ant's right to seek an accounting from a former tenant in common by precluding the cotenant from suit for a period that potentially may extend beyond expiration of the limitations period.

{16 Thus, while we do not agree with Unit's argument that Mobil's sale of its interest makes cash balancing automatically mandatory, we do find that if, as part of the sale, Mobil has denied further liability for the overproduction or has otherwise repudiated its trust, then Unit may demand an accounting in the form of pre-depletion cash balane-ing from Mobil regardless of whether the well has sufficient reserves to balance in kind, inasmuch as Mobil will have relinquished any control it may have had over Unit's ability to balance in kind.

17 On review of a trial court's summary judgment, if our examination of the pleadings and evidentiary materials leads us to conclude the material facts which are determinative of a matter are not in dispute, and that the trial court's judgment was legally correct, we will affirm. The burden is on the movant, however, to show that no material facts are in dispute, to produce admissible evidence to support every material fact, and to show the movant is entitled to judgment as a matter of law, while the trial court must "insure that the motion is meritorious." Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court). If admissible evidence has not been submitted to support each material fact, or if material facts are in dispute, then the motion should be denied.

118 To be consistent with Harrell, determination of whether derogation has occurred, so as to trigger cash balancing, requires examination and balancing of the particular facts and equities of each case. Here, the trial court balanced the equities, concluded that the statute of limitations had not started to run on Unit's claim, and thus held that derogation of Unit's rights had not occurred. However, the record reveals an unresolved issue concerning whether Mobil denies the continuation of a trust relationship with Unit-ie., whether Mobil denies future liability to Unit for the share of Mobil's overproduction attributable to Unit. If so, then a material and determinative factor in the trial court's balancing of equities in the case is in error and entry of summary judgment was improper.

119 Accordingly, we reverse the trial court's order and remand for further proceedings consistent with the views set forth herein. In the event the court on remand determines that cash balancing by Mobil is warranted, it shall also award pre-judgment interest at the rate of six percent per annum from the date Unit first made demand for cash balancing in November 1997. Harrell, 1998 OK 69, ¶¶ 35-41, 980 P.2d at 108-09.

©20 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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

      . Mobil also asserted a counterclaim against Unit for unpaid expenses associated with well operations. The counterclaims were dismissed without prejudice prior to the trial court's ruling that led to the judgment appealed from here.

      . The trial court specifically granted summary judgment to Mobil, stating: "Because the only relief that Unit seeks in this case is immediate cash balancing, the effect of this Order and Judgment is to resolve all issues, with respect to all parties, before this Court."

      . But see in this regard Pierce, D.E., "The Law of Disproportionate Gas Sales," 26 Tulsa LJ. 135, 167-68 (Winter 1990), where the author notes, "Regardless of what several courts and commentators say, balancing in kind is not the preferred method for resolving gas imbalances. The preferred method is whatever a court thinks is fair under the circumstances." The article also notes that, "(allthough there are many cases which say balancing in kind is the preferred method, the method chosen is governed by its fairness to the parties under the circumstances." Id. at 167 n. 149.


author: ADAMS, Presiding Judge.

text:
    2003 OK CIV APP 92
    In the Matter of Child, B.R.W. Brandon Shane Womack and Kristina Ann Womack, Appellants, v. Felicia Rudey Schmidt, Appellee.
    No. 98,899.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Sept. 19, 2003.
    Richard A. Williams, Pain and Garland, Anadarko, OK, for Appellants.
    Githen K. Rhoads, Lawton, OK, For Ap-pellee.
   OPINION

ADAMS, Presiding Judge.

T1 Brandon Womack, the father of the minor child, B.R.W., and his wife, Kristina Womack (collectively, the Womaecks), appeal a trial court's order denying their petition to terminate parental rights and to declare B.R.W. eligible for adoption without the consent of her mother, Felicia Schmidt (Mother) The Womacks argue, inter alia, that the trial court erred in failing to appoint an attorney for B.R.W. We agree and reverse the order.

T2 According to the Womacks, Mother's consent was made unnecessary under the provisions of 10 00.98.2001 § 7505-4.2(H)(1) and (ID)(1). The trial court denied the Wom-acks' request, specifically concluding that the Womacks had not presented proof "beyond a reasonable doubt" and had interfered with Mother's ability to maintain a relationship with the child.

13 For reversal, the Womacks first argue that the trial court was required to appoint an attorney to represent B.R.W. Mother conceded this should have been done, but argues that the Womacks may not raise this error on appeal because they did not request the appointment of an attorney for B.R.W. in the trial court. However, "fundamental error" is an exception to the general rule that an appellant may not obtain reversal on an issue not raised in the trial court, see Pine Island RV Resort, Inc. v. Resort Management, Inc., 1996 OK 83, 922 P.2d 609, and In the Matter of Adoption of K.D.K., 1997 OK 69, ¶ 3, 940 P.2d 216, 217, holds "the trial court's failure to appoint independent counsel to represent the minor child ... at the hearing to determine eligibility for adoption without the parental consent ... constitutes fundamental error." (Emphasis added).

14 KDK. requires us to reverse the trial court's order and remand the case for a new trial. We need not specifically address most of the Womacks' remaining arguments for reversal because they involve examination of the sufficiency of the evidence to support the trial court's order However, we will address the Womacks' argument concerning the appropriate burden of proof because the alleged error is likely to be repeated upon remand.

T5 The Womacks contend the trial court erred in finding that they failed to comply with 25 U.S.C. § 1912(f) of the federal Indian Child Welfare Act (ICWA), arguing that this particular proceeding does not involve removal of an Indian child from an Indian parent or Indian environment. We agree.

T 6 After considering the purpose of ICWA and certain language within 25 U.S.C. § 1912, the Oklahoma Supreme Court held in Matter of the Adoption of D.M.J., 1985 OK 92, ¶ 12, 741 P.2d 1386, 1389, that § 1912(F) did not apply to an adoption case "in the absence of an attempt to 'break-up the Indian family' or interrupt the 'continued eusto-dy' of the child by the Indian parent." Based thereon, the Court affirmed the trial court's determination that ICWA did not apply to the adoption of D.M.J. without her Indian father's consent because she had been in her non-Indian mother's custody since the parents' divorce.

17 In this case, it is undisputed that B.R.W. is an enrolled member of the Choe-taw Indian tribe, as is Mr. Womack, and Mother admits she is a non-Indian in her brief. Although Mother initially had custody of B.R.W., Mr. Womack has had legal custody of B.R.W. since July of 1998 by order of the Stephens County District Court. As in D.M.J., ICWA did not apply to the Womaeks' request to adopt B.R.W. without Mother's consent because they are clearly not attempting to "break-up an Indian family" nor attempting to interrupt the "continued custody" of an Indian child by an Indian parent. The trial court erred when it found that the Womacks failed to comply with § 1912(f) of ICWA, which requires a termination of parental rights determination be supported by evidence "beyond a reasonable doubt."

1 8 The Womaeks' request for a determination that Mother's consent is unnecessary is governed by a "clear and convincing" burden of proof. See Matter of Adoption of Darren Todd H., 1980 OK 119, 615 P.2d 287. The trial court's order is reversed, and the case is remanded for a new trial consistent with this opinion.

REVERSED AND REMANDED FOR NEW TRIAL.

JOPLIN, C.J., and BUETTNER, J., concur.

      . We note that there appears to be no Oklahoma authority authorizing a custodial parent to bring an action for termination of parental rights under these circumstances. The Oklahoma Adoption Code, 10 0.$.2001 § 7501-1.1 et seq., allows a custodial parent to bring an action for termination of parental rights only against putative fathers in § 7505-4.1. Moreover, the Oklahoma Adoption Code controls any action for termination of parental rights where the child is not alleged to be deprived. See 10 0.$.2001 § 7006-1.1(C). However, the Womacks also requested the appropriate relief available under § 7505-4.1, i.e., a determination that B.R.W. was eligible for adoption without the consent of her mother.

      . Under § 7505-4.2(H)(1), consent to an adoption is not required from a parent who "fails to establish and/or maintain a substantial and positive relationship with a minor for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of the child." Under § 7505-4.2(I)(1), consent is not required from a parent who "failed to protect the minor or a sibling of such minor from physical or sexual abuse that is heinous or shocking to the court."

      . The trial court's order specifically addresses only the Womacks' allegations under § 7505-4.2(H)(1) that Mother failed to maintain a relationship with B.R.W., and does not address the allegations under § 7505-4.2(I)(1) concerning abuse.

      . We do note the trial court's finding that the Womacks interfered with Mother's ability to maintain a relationship with B.R.W. because they only gave her a "post office box number' as their address when they moved does not appear to be supported by the evidence. According to the testimony, the Womacks provided Mother with their new address as "Rt. 1, Box 155, Ana-darko, OK." Although this is not a "street address," it does describe a physical location which may be determined through inquiry. Moreover, § 7505-4.2(H)(2) required Mother to "prove to the satisfaction of the court that ... she had] taken sufficient legal action to establish and/or maintain a substantial and positive relationship" with B.R.W. prior to receiving notice of these proceedings. Mother's appellate argument that she could remain "passive" if her ability to maintain a relationship with her child was obstructed is of questionable validity.

      . Section 1912(f) of the ICWA provides:
      No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (Emphasis added.)
      The Oklahoma ICWA,10 0.$.2001 § 40.1 et seq., applies when ICWA applies. See Matter of the Adoption of D.M.J., 1985 OK 92, 741 P.2d 1386.

      . 'The Womacks also point out in their brief that Mother "made no proof of Native American blood." Admissions in an appellate brief are acceptable as material supplementing the record. Deffenbaugh v. Hudson, 1990 OK 37, 791 P.2d 84.


author: LARRY JOPLIN, Chief Judge.

text:
    2003 OK CIV APP 94
    Deniese FORD, Plaintiff/Appellant, v. Wyatt WEST, Defendant, Joshua Wyatt West, Defendant/Appellee.
    No. 99,426.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Oct. 2, 2003.

      Gary C. Bachman, Bryan G. Garrett, Holloway, Dobson & Bachman, Oklahoma City, OK, For Appellant.
    Michael Woodson, Curtis N. Bruehl, Ed-monds, Cole, Hargrave, Givens, Witzke, Ryan & Woodson, Oklahoma City, OK, For Appellee.
   Opinion by

LARRY JOPLIN, Chief Judge.

1 1 Plaintif{/ Appellant Deniese Ford (Ford) seeks review of the trial court's order granting the motion for summary judgment of Defendant/Appellee Joshua Wyatt West (Josh) on Ford's negligence claim. In this accelerated review proceeding, Ford asserts she timely filed her amended petition to correct a misnomer of parties, and the "relation back" provisions of 12 0.8. § 2015(C) saved her claim from operation of the applicable two-year statute of limitations. We agree. We therefore hold the order of the trial court should be reversed, and the cause remanded for further proceedings.

T2 Defendant Wyatt West (Wyatt) is Josh's father. On January 3, 2001, the vehicle operated by Josh collided with the rear of the vehicle operated by Ford. Ford allegedly sustained injuries to her head, neck and back.

13 By letter dated July 2, 2001, Ford's former counsel commenced settlement negotiations with Farmers Insurance Co., Wyatt's insurer. By August 2001, Ford's current counsel had assumed control of the case, and continued negotiations with the insurer.

{4 On December 18, 2002, Ford filed her original petition to commence the instant action, and named Wyatt as defendant. In her original petition, Ford alleged "Defendant's" reckless and negligent operation of a motor vehicle on the date of the accident, causing her injury and damage.

T5 On January 7, 2008, Ford filed her amended petition naming Josh as defendant on the same allegations of "Defendant's" neg-ligenee. The same day, Ford attempted personal service of the amended petition on Josh at the address listed for him in the telephone book. The phone book address was, however, Wyatt's home address, and Josh had moved. Also the same day, Wyatt contacted Josh and informed him of the suit, according to Josh's affidavit, his first notice of any claim against him.

6 In February 2003, Ford eventually obtained personal service on Josh. Wyatt answered, denying generally and specifically, and asserted defenses, including improper party defendant and statute of limitations. Josh answered, denying generally and specifically, and asserted defenses, including statute of limitations, Ford's contributory/comparative negligence, sudden emergency and unavoidable accident.

T 7 In April 2003, Josh filed his motion for summary judgment. On evidentiary materials demonstrating the facts we have recount ed, Josh argued that any notice of the claim to his father could not be imputed to him, and that because Ford could have discovered the identity of the proper defendant prior to the running of the statute of limitations, the relation-back provisions of § 2015(C) offered her no savings from the limitations bar, and her amended petition correctly naming him as defendant was untimely filed. Ford responded, arguing that because Josh received notice of the suit, although misnaming his father as defendant, during the 180-day period for service of process, her amended petition correcting the earlier misnomer of the proper party defendant related back to the date of her timely filed original petition. 12 0.8. § 2015(C)(B).

T8 On consideration of the parties' briefs and submitted materials, but without specific findings of fact or conclusions of law, the trial court granted Josh's motion for summary judgment. Ford appeals, and the matter stands submitted for our disposition on the trial court record.

19 Section 2015(C) provides in pertinent part:

An amendment of a pleading relates back to the date of the original pleading when:
1. Relation back is permitted by the law that provides the statute of limitations applicable to the action; or
2. The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or
3. The amendment changes the party or the naming of the party against whom a claim is asserted if paragraph 2 of this subsection is satisfied and, within the period provided by subsection I of Section 2004 of this title for service of the summons and petition, the party to be brought in by amendment:
a. Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and
b. Knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.. . ..

12 0.8.2001 § 2015. As the Oklahoma Comment to § 2015 now instructs:

The [1998] amendments to section 2015 track the 1991 amendments to Fed. R.Civ.P. 15, which were designed to overturn the result in Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986). The Schiavone case dealt with the application of a statute of limitations to a defendant who was misnamed in a complaint. The plaintiffs in Schiavone attempted to sue the owners of Fortune magazine, and they named the defendant "Fortune," instead of the correct owner, "Time, Inc." After the statute of limitations ran, the plaintiffs attempted to amend the complaint to name Time, Inc., and the United States Supreme Court held that the amendment did not relate back under Fed.R.Civ.P. 15(c), because Time, Inc. did not receive notice of the lawsuit until after the statute of limitations had run.
The result in Schiavone is undesirable, because a defendant no longer has to be served within the statute of limitations. All that is needed under 12 0.S.1991, § 2008 is the filing of the complaint within the statute of limitations and its service before the 180 day deadline in 12 0.9.1991, § 2004(I). The [1998] amendments to seetion 2015(C) ... permit the relation back of an amendment to a petition as long as the proper defendant received notice of the lawsuit before the deadline in section 2004(L) expired. ....

12 O.S.A. § 2015 (West 2008), Comment. (Emphasis added.) Authorities construing FRCP. 15(c) the counterpart to our § 2015(C), are in accord. See, eg., Moore's Federal Practice, 115.154]; Wright, Miller & Kane, 6A Fed. Prac. & Proc. Civ.2d § 1498 (West 2003 Pocket Part). We are persuaded the federal authorities and the Oklahoma commentary set forth the proper construction of § 2015(C). See, eg., Prough v. Edinger, Inc., 1993 OK 130, ¶ 6, 862 P.2d 71, 74; Shores v. First City Bank Corp., 1984 OK 67, ¶ 5, 689 P.2d 299, 301.

1 10 In the present case, Ford timely filed her original petition, but misnamed Wyatt, Josh's father, as party defendant. The amended claim against Josh arose out of the same occurrence or transaction. Josh received notice of the claim within the time for service of process prescribed by § 2004(I) and knew or should have known that but for the misnomer of his father, the claim should have been brought against him. Josh has neither alleged nor proven actual prejudice to his defense of the action by his proper denomination as party defendant. See, Prough, 1993 OK 130, ¶ 13, 862 P.2d at 77.

' 11 By force of § 2015(C), we consequently hold Ford's amendment to correct the misnomer of parties relates back. The trial court erred in granting Josh's motion for summary judgment. The order of the trial court is REVERSED and the cause REMANDED for further proceedings.

ADAMS, P.J., and BUETTNER, J., concur.

      . See, Rule 13(h), Rules for District Courts, 12 0.$.2001, Ch. 2, App.; Rule 1.36, Oklahoma Supreme Court Rules, 12 0.$.2001, Ch. 15, App.

      . Because "[the Oklahoma Pleading Code is based on the Federal Rules of Civil Procedure, . we may look to federal authority for guidance in applying its provisions."

      . "[Wle may rely upon federal authorities insofar as they relate to the ... correspond[ing] [sections] of our statute."

      . "Prejudice refers to the inconvenience and delay suffered when new issues are raised or new parties introduced, not that which is caused by a defeat on the merits. (Citations omitted.) Requiring a party to litigate issues ... present at the outset of litigation had the parties raised them cannot be considered prejudicial."