author: BOUDREAU, J.

text:
    2004 OK 7
    Lula FANNING, as Guardian of Eva Jackson, a physically and mentally incapacitated adult, Plaintiff/Appellant, v. James BROWN, Alex Dout, Grant Rhodes, Tony Wilkins, and Jeff Young, Defendants/Appellees.
    No. 97,956.
    Supreme Court of Oklahoma.
    Feb. 10, 2004.

      Nancy Lloyd, Jim Lloyd, Lloyd & Lloyd, Sand Springs, OK, for plaintiff/appellant, Lula Fanning, as Guardian of Eva Jackson.
    James E. Frasier, George M. Miles, Frasier, Frasier & Hickman, LLP, Tulsa, OK, for defendants/appellees, James Brown; Alex Dout; Grant Rhodes; Tony Wilkins; and Jeff Young.
   BOUDREAU, J.

¶ 1 Lula Fanning, as Guardian of Eva Jackson, a physically and mentally incapacitated adult (Fanning), filed a petition in district court against James Brown, Alex Dout, Grant Rhodes, Tony Wilkins, and Jeff Young (defendants) who are the shareholders of Sand Springs Care Center, Inc. (SSCC). Fanning’s petition alleged SSCC owned and operated Oak Dale Manor, a specialized long-term nursing care facility in Sand Springs, Oklahoma. Fanning asserts nursing home negligence, statutory violations of the Oklahoma Nursing Home Care Act (NHCA), 63 O.S.2001, § 1-1901 et seq. and the Protective Services for Vulnerable Adults Act, 43A O.S. 2001, § 10-101 et seq., and breach of contract for injuries Eva Jackson received while a resident at Oak Dale Manor.

¶ 2 Defendants filed a motion to dismiss on May 21, 2002, in which they asserted that Fanning failed to state a claim upon which relief could be granted. Defendants’ motion provided that “[a]n individual and a corporation are two separate and distinct legal entities. An individual stockholder cannot be liable for the negligent acts of the corporation.” On June 5, 2002, Fanning filed an amended petition adding a fourth cause of action to pierce the corporate veil. On June 6, 2002, Fanning filed a response to the motion to dismiss. In her response, Fanning maintained the NHCA expressly authorizes a direct action against “owners” and that there must be a factual determination as to whether defendants satisfy the definition of “owner” under the act. Fanning further argued that the equitable doctrine of piercing the corporate veil should be invoked to protect the rights of third persons and accomplish justice.

¶3 The trial judge granted defendants’ motion to dismiss and Fanning appealed. The Court of Civil Appeals, Division I (COCA), affirmed, finding the petition failed to state a claim against the defendant shareholders. In making this determination, COCA found the NHCA contemplates that either a person or an entity will own a facility that there can be only one “owner” under the act. As a result, SSCC alone, and not its individual shareholders, own Oak Dale Man- or and is subject to liability under the act. In addition, COCA held that Fanning failed to allege sufficient facts to justify the court disregarding the corporate entity and imputing liability for the acts of the corporation to the shareholders. This Court granted certio-rari.

I. STANDARD FOR REVIEWING A MOTION TO DISMISS

¶ 4 The standard of review for an order dismissing a case for failure to state a claim upon which relief can be granted is de novo and involves consideration of whether a plaintiffs petition is legally sufficient. Hayes v. Eateries, Inc., 1995 OK 108, ¶ 2, 905 P.2d 778, 780. When reviewing a motion to dismiss, the court must take as true all of the challenged pleading’s allegations together with all reasonable inferences which may be drawn from them. Hayes, 905 P.2d at 780. “A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief.” Frazier v. Bryan Mem. Hosp., 1989 OK 73, ¶ 13, 775 P.2d 281, 287. (emphasis in original). Furthermore, the burden to show the legal insufficiency of the petition is on the party moving for dismissal and a motion made under 12 O.S.2001, § 2012(B)(6) must separately state each omission or defect in the petition; if it does not, the motion shall be denied without a hearing. Indiana Nat.’l Bank v. State of Oklahoma, Dept. of Human Serv., 1994 OK 98, ¶ 3, 880 P.2d 371, 375. Motions to dismiss are usually viewed with disfavor under this liberal standard. Id. at 375. The burden of demonstrating a petition’s insufficiency is not a light one. Id. The above standards guide our review in this case.

II. DISCUSSION

A. The Petition Fails to State a Claim Under the Oklahoma Nursing Home Care Act, 63 O.S.2001, § 1-1901 et seq.

¶ 5 The NHCA provides a private right of action for nursing home residents to redress a violation of rights conferred by the act. Morgan v. Galilean Health Enter., Inc., 1998 OK 130, ¶ 8, 977 P.2d 357, 361. Every nursing home resident has “the right to receive adequate and appropriate medical care consistent with established and recognized medical practice standards within the community.” 63 O.S.Supp.2003, § 1-1918. This right is enforceable against “[t]he owner and licensee [who] are liable to a resident for any intentional or negligent act or omission of then agents or employees which injures the resident.” 63 O.S.Supp.2003, § 1-1939(A).

¶ 6 The NHCA defines “owner” as “[a] person, corporation, partnership, association, or other entity which owns a facility or leases a facility.” 63 O.S.2001, § 1-1902(16). It also provides that “[t]he person or entity that stands to profit or lose as a result of the financial success or failure of the operation shall be presumed to be the owner of the facility.” Id. Fanning maintains the NHCA authorizes her to bring an action against the shareholders as “owners” because they stand to profit or lose as a result of the financial success or failure of the operations of Oak Dale Manor.

¶ 7 Defendants filed a motion to dismiss asserting that the corporation was an entity distinct from its individual members or shareholders. The trial court granted defendants’ motion to dismiss without comment. On appeal, COCA rejected Fanning’s argument that the shareholders were “owners” under the NHCA. COCA interpreted “owner” as either the person or entity that stands to profit or lose — that there can be only one “owner” under the act. As a result, COCA found that SSCC alone, and not its individual shareholders, is subject to liability within the meaning of the act.

¶8 At issue is the interpretation or construction of the definition of “owner”. 63 O.S.2001, § 1-1902(16). Statutory construction presents a question of law. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 20, 16 P.3d 1120, 1122-23. Questions of law are reviewed by a de novo standard. Neil Acquisition v. Wingrod Investment Corp., 1996 OK 125, ¶ 5, 932 P.2d 1100, 1103. Under this standard, we have plenary, independent and nondeferential authority to determine whether the trial court erred in its legal ruling. Id.

¶ 9 This Court has stated that the language of the NHCA “is not a model of clarity and precision”. Morgan, 977 P.2d at 361. The definition of “owner” exemplifies this statement. The first sentence which defines “owner” as the person or entity which owns or leases a facility is relatively unambiguous. The second sentence, however, is ambiguous as it could include other persons or entities which profit incidentally from the facility’s operation.

¶ 10 Rules of statutory construction are employed when legislative intent cannot be ascertained from the language of a statute, as in cases of ambiguity. Johnson v. City of Woodward, 2001 OK 85, ¶ 6, 38 P.3d 218, 222. 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. The Pentagon Academy v. Independent Sch. Dist. No. 1 of Tulsa County, 2003 OK 98, ¶ 19, 82 P.3d 587. Courts will give the words of a statute a plain and ordinary meaning, unless it is clear from the statute' that a different meaning was intended by the Legislature. Id.

¶ 11 Guided by these rules of construction, we look to the language of a statute to ascertain legislative intent. The NHCA defines “owner” as a person or entity which owns or leases a facility. 63 O.S.2001, § 1-1902(16). Since the Legislature tied the definition of “owner” to “facility”, we must examine other provisions of the NHCA more closely. “Facility” is defined as a nursing facility and a specialized home. 63 O.S.2001, § 1-1902(9). “Nursing Facility” means a home or institution which is primarily engaged in providing nursing care, rehabilitation services or health-related care and “specialized home” means any home or institution which provides inpatient long-term care services. 63 O.S.2001, § 1-1902(10 & 11).

¶ 12 Upon reviewing these provisions it is clear that the NHCA defines “facility” by reference to the nature and extent of services it provides to residents. Accordingly, as the definition of “owner” is defined by reference to “facility”, the “owner” of a “facility” is a person or entity that has responsibility for providing the relevant services to residents.

¶ 13 In our view, the “profit or lose” language in the second sentence does not extend liability beyond the specific person or entity which has responsibility for providing the relevant services. We believe the Legislature intended the language to be construed narrowly so that it would not extend liability to other persons and entities which have some sort of legal interest in the facility but are not the “owner”. These other persons or entities, like shareholders of a corporation, remain entitled to the protections otherwise available to the particular business form they have chosen.

¶ 14 A broad interpretation of the “profit or lose” language in the definition of “owner” would allow the joinder of defendants clearly never intended by the Legislature. We can imagine a variety of persons or entities that would “stand to profit or lose as a result of the financial success or failure of the operation.” For instance, landlords, vendors, and even employees of the facility themselves, all could be said to have economic interests in the financial success of the nursing facility. It can not be seriously argued that anyone with an economic interest in the success or failure of the facility should be a defendant in a malpractice action.

¶ 15 In sum, it is alleged that SSCC, as a corporation, owned and operated Oak Dale Manor. Although the defendant shareholders can be said to have profited incidentally from the facility’s operations, they are not “owners” under the NHCA. We agree that Fanning’s petition failed to state a claim upon which relief could be granted. We hold the trial court was correct in sustaining defendants’ motion to dismiss.

B. The Petition Adequately States a Claim to Disregard the Corporate Veil.

¶ 16 Generally, a corporation is regarded as a legal entity, separate and distinct from the individuals comprising it. Buckner v. Dillard, 1939 OK 144, ¶ 21, 89 P.2d 326, 328. However, the notion of a corporation’s legal entity, apart from the persons composing it, is introduced for convenience and to serve the ends of justice. Mid-Continent Life Ins. Co. v. Goforth, 1943 OK 244, ¶ 10, 143 P.2d 154, 156. Accordingly, Oklahoma has long recognized the doctrine of disregarding the corporate entity in certain circumstances. Courts may disregard the corporate entity and hold stockholders personally liable for corporate obligations or corporate conduct under the legal doctrines of fraud, alter ego and when necessary to protect the rights of third persons and accomplish justice. See Goforth, 143 P.2d at 156 (courts may disregarded the legal fiction that bestows on a corporation an existence separate and distinct from its stockholders when necessary to protect the interests of the public, circumvent fraud and protect the rights of third persons or accomplish justice); Frazier v. Bryan Memorial Hosp. Authority, 1989 OK 73, ¶ 16, 775 P.2d 281, 288 (if one corporation is simply the instrumentality of another corporation, the separation between the two may be disregarded and treated as one).

¶ 17 Fanning filed an amended petition asserting a legal theory seeking to pierce the corporate veil and hold SSCC shareholders individually liable for the obligations and conduct of SSCC. Fanning alleged the shareholders used the corporate entity to defeat the public policy of protecting a resident from neglect and abuse, that they failed to secure and maintain liability insurance, and that they allowed SSCC to become suspended from doing business within the state. She also argued that the public policy of protecting elderly residents is a compelling or overriding reason to disregard the corporate entity and pierce the corporate veil.

¶ 18 Shareholders moved to dismiss simply stating the general rule that a shareholder is a separate entity that cannot be liable for the negligent acts of the corporation. The trial court dismissed the case and COCA affirmed. In affirming, COCA held that Fanning failed to allege sufficient facts to state a claim that would justify the court disregarding the corporate entity and imputing liability for the acts of the corporation to the shareholders.

¶ 19 Oklahoma became a notice pleading state with the adoption of the Oklahoma Pleading Code in 1984. 12 O.S.2001, § 2008. The Pleading Code does not require a plaintiff to set out in detail the facts upon which the claim is based but merely requires “a short and plain statement of the claim showing that the pleader is entitled to relief; and ... [a] demand for judgment for the relief to which he deems himself entitled.” 12 O.S.2001, § 2008(A)(1) & (2). This requirement is not onerous, but is merely to give an opposing party fair notice of the claim and the grounds upon which it rests. Gunn v. Consolidated Rural Water & Sewer Dist., No. 1, Jefferson County, Oklahoma, 1992 OK 131, ¶ 13, 839 P.2d 1345, 1351.

¶20 The United States Supreme Court reaffirmed the liberal system of “notice pleading” in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit et al, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). In Leatherman, homeowners filed a complaint which alleged that searches of their home violated the Fourth Amendment and that municipal corporations failed to adequately train officers. The trial court dismissed the complaint finding the plaintiffs’ had failed to meet the heightened pleading standard required in a civil rights suit alleging municipal liability under 42 U.S.C. § 1983. The Fifth Circuit affirmed. In reversing, the United States Supreme Court stated: “[t]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Leatherman, 507 U.S. at 168, 113 S.Ct. 1160, quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957).

¶ 21 Title 12 O.S.2001, § 2009(B) does impose a particularity requirement in some instances. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Since this case does not involve fraud or mistake, Fanning was only required to set forth a short and plain statement of her claims so that the defendants would have fair notice of what Fanning’s claims were and the grounds upon which they rest. As the Supreme Court pointed out in Leatherman, in the absence of an amendment to Rule 9, federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims. Leatherman, 507 U.S. at 168-69, 113 S.Ct. 1160.

¶ 22 In her petition, Fanning has asserted legal theories of negligence and breach of contract. Fanning seeks to pierce the corporate veil of SSCC and hold the individual shareholders liable for the obligations and conduct of the facility. Fanning has given the defendants fair notice of her claims and the grounds upon which they rest. Whether Fanning can prevail on her claim against the shareholders remains to be seen. However, Fanning must be afforded an opportunity to complete discovery so that the court will have a fully developed factual record to determine the issue. At this stage of the proceedings it does not appear beyond a doubt that Fanning can prove no set of facts in support of her theories of recovery. Accordingly, the trial court erred in dismissing Fanning’s petition.

¶ 23 Even if the allegations in Fanning’s petition were not sufficient to withstands motion to dismiss, the trial court still erred in dismissing the case without providing Fanning with an opportunity to amend her complaint. Title 12 O.S.2001, § 2012(G) provides “(o)n granting a motion to dismiss a claim for relief, the court shall grant leave to amend if the defect can be remedied and shall specify the time within which an amended pleading shall be filed.” This Court has interpreted the statute as a mandatory duty placed on trial courts, as long as the defect can be remedied. See Kelly v. Abbott, 1989 OK 124, ¶ 6, 781 P.2d 1188, 1190. In order for the courts to dismiss a claim for failure to state a cause of action without giving the plaintiff the opportunity to amend, it must appear that the claim does not exist rather than the claim has been defectively stated. See Lockhart v. Loosen, 1997 OK 103, ¶ 5, 943 P.2d 1074, 1078 (which draws a distinction between a petition that is dismissible for- want of a cognizable legal theory of liability and one that is dismissible for insufficient facts under a recognized theory).

¶ 24 The journal entry of judgment in this ease merely provides that the court “[h]ereby sustains these Defendants’ Motion to Dismiss, pursuant to 12 Okla.Stat. § 2012(B)(6).” The judgment does not provide Fanning with leave to amend. Similarly, since Fanning pled a cognizable legal theory, i.e., piercing the corporate veil, the judgment does not contain a statement that no amendment of the petition could cure the defects in Fanning’s petition. If the trial court was of the opinion that the claim was defectively pled, it should have provided Fanning with an opportunity to amend. Accordingly, the trial court erred in dismissing Fanning’s petition.

III. CONCLUSION

¶ 25 In conclusion, we hold the trial court was correct in granting the defendant shareholders’ motion to dismiss for failure to state a claim under the Oklahoma Nursing Home Care Act. However, the trial court erred in dismissing Fanning’s remaining theories of recovery as her petition adequately states a claim to disregard the corporate veil.

COURT OF CIVIL APPEALS, DIVISION I, OPINION VACATED; TRIAL COURT AFFIRMED IN PART AND REVERSED IN PART AND CAUSE REMANDED FOR FURTHER PROCEEDINGS.

ALL JUSTICES CONCUR.

      . Fanning's petition also named the following defendants: Sand Springs Care Center, Inc., d/b/a Oak Dale Manor; TLC Health Care, Inc., d/b/a Crescent Health Services; Rocky R. Lemon; H.A. Sand Springs, LLC, formerly known as H.A. Nevada Associates, LLC; Harvey Angelí; Kenneth Dorsey, Court Appointed Receiver; Philip 0. Watts, Receiver; Rex Hodges, Receiver; RHM Co., and Mid America Health Care Management Inc., all d/b/a Oak Dale Manor. Fanning dismissed without prejudice all claims against these defendants.

      . Unless otherwise noted, the applicable sections of the NHCA have not been amended since the 2001 codification.

      . In her brief-in-chief, Fanning mentions under the Concise Statement of Facts and Arguments that she sued the defendant shareholders alleging a claim under the Protective Services for the Elderly and for Incapacitated Adults Act without any further argument. This claim is not supported by any argument or legal authority and is deemed abandoned. See Hadnot v. Shaw, 1992 OK 21, ¶ 7, 826 P.2d 978, 981; Wetsel v. Independent Sch. District 1-1, 1983 OK 85, ¶¶ 8, 670 P.2d 986, 991.

      .The NHCA defines "licensee” as "the person, a corporation, partnership, or association who is the owner of the facility which is licensed by the Department pursuant to the provisions of the Nursing Home Care Act.” 63 O.S.2001, § 1-1902(13). In this case, Fanning alleges SSCC is the "owner”.

      . The definition of "owner” and “licensee", taken literally, are somewhat inconsistent. For example, "licensee" is defined as "the owner of the facility” whereas the "owner” may either “own” or "lease” a facility.

      . Pnce v. TLC Health Care, Inc., 2004 OK 8, adopted contemporaneously with the case at issue.

      . See Edward J. Main, Who Owns a Nursing Facility?, 75 Okla.B.J. 111 (Jan. 17, 2004), a recent Oklahoma Bar Journal article which addressed the ambiguity contained in the definition of "owner” under the NHCA. He argues that an interpretation that ties the definition of "owner” to the provision of the relevant service is consistent with the general principle of "duty” that a person must be in a position to act or to fail to act in a way that will injure another.

      . Amicus curiae and the defendants argue that pursuant to 18 O.S.2001, § 1124(B) Fanning is required to obtain a judgment against the corporation which must be returned unsatisfied before the plaintiff may bring suit against the shareholders for a corporate debt. This is a defense presented for the first time on appeal. Without deciding its application, we disagree. Subsection (B) of § 1124 must be read in relation to subsection (A). Subsection (A) provides that subsection (B) applies only to claims conferred "by the provisions of the Oklahoma General Corporation Act” which permits officers, directors, and shareholders to be held liable for the debts of the corporation in certain instances. See Lone Star Indus., Inc. v. Redwine, 757 F.2d 1544, 1553 (5th Cir.1985)(interpreting an identical section of the Delaware General Corporation Laws).

      . Since 12 O.S.2001, § 2008 is adopted from its federal counterpart, Rule 8 of the Federal Rules of Civil Procedure, we may look to federal case law to aid in its interpretation and application. See Heffron v. District Court Oklahoma County, 2003 OK 75, ¶¶ 13 & 14, 77 P.3d 1069, 1076 (when a statute is adopted from the Federal Rules of Civil Procedure, courts may look to relevant federal case law to assist them in interpreting the pertinent state provision); State ex rel. Moshe Tal v. City of Oklahoma City, 2002 OK 97, ¶ 2, 61 P.3d 234, 240 (in that 12 O.S.2001, § 2011 is adopted from its federal counterpart, Rule 11, we may look to federal case law to aid in its interpretation and application).

      . Although allegations of fraud must be stated with sufficient particularity to enable the opposing party to prepare his or her responsive pleadings and defenses, particularity does not mean the plaintiff has to plead detailed evidentiary matters. A-Plus Janitorial & Carpet Cleaning v. The Employers’ Workers' Compensation Assoc., 1997 OK 37, ¶ 35, 936 P.2d 916, 930-31.


source: Caselaw Access Project

author: CHAPEL, Judge. LILE, Vice Presiding Judge:

license: Public Domain

text:
    2004 OK CR 11
    The STATE of Oklahoma, Appellant v. Ronald LOVE and Corey Michael White, Appellee.
    No. S-2002-1192.
    Court of Criminal Appeals of Oklahoma.
    Feb. 20, 2004.
    David Brooks, Sayre, OK, attorney for Defendant Love at trial and appeal.
    Avery A. Eeds, Jr., Elk City, OK, attorney for Defendant White at trial and appeal.
   SUMMARY OPINION

CHAPEL, Judge.

¶ 1 Ronald Maquince Love and Corey Michael White were charged with Unlawful Possession of Marijuana With Intent to Distribute in violation of 63 O.S.2001, § 2-401(B)(2), in the District Court of Beckham County, Case No. CF-2002-25. After Love and White were bound over, they filed a Motion to Suppress. After a hearing on the motion, the Honorable Charles L. Goodwin suppressed the evidence, dismissed the case, and exonerated the defendants’ bonds. The State appeals from this decision on a reserved question of law.

¶2 The State asks this Court to decide whether uniformed officers can use unmarked cars, equipped with combinations of flashing lights, to make traffic stops. After thorough consideration of entire record before us, including the original record, transcripts, briefs, and exhibits, we answer the question “yes.”

¶ 3 The Legislature has prohibited any municipality or sheriffs department from using “any vehicle which is not clearly marked as a law enforcement vehicle for routine traffic enforcement.” The statute defining “clearly marked” provides that an unmarked vehicle used for routine traffic enforcement must be equipped with certain lights, including at least three flashing red or blue lights and two flashing white lights to the front; red, blue or white flashing lights at the corners; and at least one flashing red, blue or yellow light at the rear. The record shows that the officer’s Ford Crown Victoria had more than enough lights and met this standard.

¶ 4 These statutes are easily reconciled. In enacting the statutes requiring marked cars, the Legislature’s explicit concern was the “increased number of persons impersonating law enforcement officers by making routine traffic stops while using unmarked cars.” Nothing in the language of the statutes suggests that the Legislature intended to prevent law enforcement from making legitimate traffic stops in unmarked cars. Had that been the ease, there would be no need for the provision requiring certain combinations of flashing lights on unmarked cars. This Court will give effect to all portions of a statute or section as read together, presuming the Legislature will not do a vain thing. We will not interpret a statutory scheme in a way which would render one statute meaningless. The explicit legislative intent in prohibiting unmarked cars from making traffic stops is the protection of the public from impostors. Standing alone, this prohibition prevents law enforcement officers from using an important public safety tool. Recognizing this problem, the Legislature provided a remedy; unmarked cars may be used for routine traffic stops as long as the officer inside is in uniform and the cars are equipped with particular combinations of flashing lights. The complete statutory scheme thus allows law enforcement to use unmarked cars for routine traffic stops, under certain conditions, while protecting the public from attack by criminal impostors posing as officers in unmarked cars.

Decision

¶ 5 Reserved Question of Law Answered.

JOHNSON, P.J. and STRUBHAR, J.: concur.

LILE, V.P.J. and LUMPKIN, J.: concur in part/dissent in part.

LILE, Vice Presiding Judge:

concurs in part/dissents in part.

¶ 1 I concur in the decision and analysis concerning whether uniformed officers can use unmarked cars, equipped with combinations of flashing lights, to make routine traffic stops. However, I dissent to the decision and analysis regarding which section of 22 O.S.2001, § 1053 is applicable. The Opinion’s analysis and decision that the appeal is a reserved question of law is based on the determination that the trial court’s dismissal of the case bars further prosecution.

¶ 2 22 O.S.2001, § 1053(3) provides that an appeal may be taken by the State upon a reserved question of law. To pursue such an appeal, there must be a judgment of acquittal or an order of the court which expressly bars further prosecution. State v. Campbell, 1998 OK CR 38, ¶ 8, 965 P.2d 991, 992-993. In Campbell the trial court found Appellee’s double jeopardy rights were violated and held that further prosecution was barred. Id.

¶3 In the instant case, the appeal was taken from the trial court’s dismissal of the case for insufficient evidence subsequent to sustaining the defendant’s motion to suppress. The ruling of the trial court, sustaining the defendant’s motion to quash the information based upon insufficient evidence, did not expressly bar the State from further prosecution. State v. Hammond, 1989 OK CR 25, ¶ 9, 775 P.2d 826, 828; State ex rel. Macy v. Jackson, 1983 OK CR 23, ¶ 3, 659 P.2d 361, 362. As there was no judgment of acquittal or an order of the court which expressly bars further prosecution, the State could not appeal on a reserved question of law.

¶4 22 O.S.2001, § 504.1, provides for the filing of a motion to quash for insufficient evidence after preliminary hearing. 22 O.S. 2001, § 1053(4), allows an appeal by the State upon a judgment for the defendant on a motion to quash for insufficient evidence in a felony matter. Therefore, under the circumstances of this case subsection 4 is the appropriate section for the appeal, and there is no bar to further prosecution. Additionally, 22 O.S.2001, § 817 provides that an order of dismissal is not a bar to further prosecution. This defendant has received a windfall to which he is not entitled under the law.

¶ 5 I am authorized to state that Judge Lumpkin joins in this writing.

      . 22 O.S.2001, § 1053(3). Subsection 3 of the statute permits appeals of a dismissal based on suppression of evidence as reserved questions of law. During the pendency of this appeal, the statute was amended. Subsection 5 allows for appeals of pretrial orders suppressing or excluding evidence. The State urges us to review this case under subsection 5 rather than subsection 3. However, under the circumstances of this case subsection 3 is the appropriate section. The trial court did not merely issue a pretrial order; it dismissed the case. There was no order staying the proceedings. The trial court's order suppressing the evidence and dismissing the case bars further prosecution. State v. Campbell, 1998 OK CR 38, 965 P.2d 991, 992.

      . 11 O.S.2001, § 34-106; 19 O.S.2001, § 180.43(D).

      . 47 O.S.2001, § 12-218.

      . 11 O.S.2001, § 34-106; 19 O.S.2001, § 180.43(D).

      . Legislative intent controls statutory interpretation. "Intent is ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each.” Keating v. Edmondson, 2001 OK 110, 37 P.3d 882, 886.

        . Huskey v. State, 1999 OK CR 3, 989 P.2d 1, 6; Reupert v. State, 1997 OK CR 65, 947 P.2d 198, 201.


author: JOPLIN, Chief J.

text:
    2004 OK CIV APP 5
    BUILDERS OVERHEAD CRANES, a Division of Builders Steel Co., Inc., an Oklahoma Corporation, Plaintiff/Appellant, v. NASHCO BUILDING COMPANY, INC., an Oklahoma Corporation; Walter A. Nashert, III, an individual; and International Fidelity Insurance Company, Defendant/Appellees.
    No. 97,819.
    Court of Civil Appeals of Oklahoma, Division 3.
    Sept. 4, 2003.
    Rehearing Denied Oct. 2, 2003.

      Kelly F. Monaghan, Lori Gilliard, Holloway & Monaghan, Tulsa, for Appellant.
    Robert L. Magrini, Evan B. Gatewood, Alan W. Bardell, Hayes, Magrini & Gate-wood, Oklahoma City, for Appellees.
   JOPLIN, Chief J.

¶ 1 Plaintiff/Appellant Builders Overhead Cranes (BOC) seeks review of the trial court’s order assessing interest and denying BOC’s motion for attorney’s fees on BOC’s claims against Defendants/Appellees Nashco Building Company (Nashco) as principal and International Fidelity Insurance Company (IFIC) as surety to recover for labor and services rendered for Nashco. Having reviewed the record, we find no error by the trial court in the assessment of interest, but hold the trial court erred in denying attorney’s fees. The order of the trial court should therefore be affirmed in part, reversed in part, and the cause remanded.

¶ 2 Nashco was a subcontractor to Math-erly Construction, general contractor, on a public works project for the University of Oklahoma. IFIC was surety on a payment bond in which Nashco was principal and Matherly obligee.

¶ 3 BOC, a subcontractor of Nashco, filed suit against Nashco to recover for work performed on the project. Nashco disputed the amount sought, and upon Nashco’s suggestion of insolvency, BOC added IFIC as an additional party defendant. Prior to trial, IFIC “and/or Nashco” stipulated to a judgment in the amount demanded by BOC, and the issue of attorney’s fees and costs was deferred.

¶ 4 BOC subsequently filed a motion to tax attorney’s fees, costs and interest (at its invoice rate of 18%) against Nashco and IFIC pursuant to 12 O.S. § 936. At the conclusion of a hearing, the trial court denied BOC its requested fees and costs, finding § 936 did not permit such an award in the present case for lack of a direct contractual relationship between BOC and IFIC. The trial court also denied BOC’s request for 18% interest, finding the 6% statutory interest rate applied. BOC appeals.

¶ 5 Attorney’s fees may be awarded only when authorized by statute or contract. See, e.g., American Biomedical Group, Inc. v. Norman Regional Hosp. Authority, 1993 OK CIV APP 83, 855 P.2d 1074. The plain language of § 936 as it existed at the time of this controversy mandated an award of prevailing party attorney’s fees in any suit “to recover on ... [a] contract for relating to the purchase or sale of goods, wares, or merchandise, or for labor and services, unless otherwise provided by law or the contract which is the subject [of] the action.” See, Ellis v. Lebowitz, 1990 OK 107, ¶ 4, 799 P.2d 620, 621. In the present case, BOC commenced and prevailed on an action within the scope of § 936, and is entitled to § 936 prevailing party attorney’s fees. IFIC, as the defeated party liable to pay for BOC’s labor or services, is also liable to pay § 936 attorney’s fees to BOC.

¶ 6 BOC also asserts error on behalf of the trial court in failing to award it 18% interest on the balance due and owing as billed to Nashco. However, neither the contract between BOC and Nashco, nor the surety agreement, contain any provision rate of interest. Absent such a provision, we hold that 15 O.S.1991 § 266 mandating a 6% interest rate controls. We therefore find the trial court did not err in awarding 6% interest in accord with § 266.

¶7 The orders of the trial court are therefore AFFIRMED IN PART, REVERSED IN PART and the cause is REMANDED for further proceedings to determine BOC’s reasonable attorney’s fee.

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

      . All claims against Defendant Walter A. Nas-hert, III, individually, have been resolved.

      . The record suggests that Nashco sent BOC’s invoices to Matherly; that Matherly paid Nashco; but that Nashco failed to pay BOC.

      . Nashco's insolvency having been established and/or taken for granted, BOC sought to recover its fees and costs from IFIC.

      . "The decision to award attorney fees [pursuant to 12 O.S. § 936] is not discretionary."

      . Having so held, we find it unnecessary to address BOC's argument that the trial court should have, at a minimum, awarded it § 936 attorney’s fees against Nashco, the party for whom the services were rendered.


author: BAY MITCHELL, Presiding Judge.

text:
    2004 OK CIV APP 14
    NORMAN HOMEOWNERS ASSOCIATION, INC., an Oklahoma not-for-profit corporation, and all others Similarly Situated, Plaintiff/Appellant, v. The CITY OF NORMAN, Oklahoma, an Oklahoma municipal corporation, Defendant/Appellee.
    No. 98,672.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Oct. 24, 2003.
    Certiorari Denied Jan. 20, 2004.

      Philip W. Redwine, James L. Bintz, Law Offices of Redwine and Cubberly, Norman, OK, For Plaintiff/Appellant.
    Jeff H. Bryant, Rickey J. Knighton, II, The City of Norman, Oklahoma, Norman, OK, For Defendant/Appellee.
   Opinion by

BAY MITCHELL, Presiding Judge.

¶ 1 PlaintiffAppellant Norman Homeowners Association sought declaratory judgment from the trial court barring Defendant/Appellee City of Norman from enforcing against construction of new residences a tax designed to finance improvements to, and expansion of, City’s wastewater system. Association also sought injunctive relief against City’s collection of the tax. After the parties filed cross motions for summary judgment, the trial court granted City’s motion for summary judgment on September 27, 2002, issued its findings of fact and conclusions of law on November 15, 2002, and entered judgment for City on November 25, 2002.

¶ 2 City is a municipal corporation located within Cleveland County, Oklahoma. Having determined its sewer system was at 95% capacity, City hired an engineering consulting firm to devise a wastewater master plan. City also created a “Citizens Coalition on the Future of Wastewater” to formulate nonbinding recommendations for addressing current capacity problems, future system expansion, and funding. On August 14, 2001, City’s voters approved three ordinances that distributed among current and future users financial responsibility for modernizing, maintaining, and expanding City’s deteriorating wastewater system. Ordinance No. 0-0001-56, imposes a five dollar ($5.00) per month sewer service maintenance rate on each Norman residence, apartment, business, or mobile home receiving sewer service. Ordinance No. 0-0001-57 imposes a five-year, half-cent sales tax. Ordinance No. 0-0001-58 (the “Excise Tax Ordinance”), the subject of the present action, levies a tax against construction of new homes and commercial structures that will be connected to City’s wastewater system. Eighty percent of participating City voters supported the Excise Tax Ordinance.

¶ 3 Pursuant to the Excise Tax Ordinance, City will not issue a building permit unless and until the tax is paid. It states, in pertinent part:

WHEREAS, the City Council of the City of Norman and its Citizens Coalition on the Future of Wastewater find and recommend that the costs of future improvements and expansion to the City should be borne by the users whose demand has created the need for future expansion and improvements; and
WHEREAS, the City Council desires to establish a mechanism through which to finance the future growth and expansion of the City’s wastewater system from new development; and
WHEREAS, upon recommendation of its professional staff and consultants, based further on recommendation of the City’s Citizens Coalition on the Future of Waste-water, the Council has and does hereby determine that such costs should be, in the future, imposed upon the development of land with the collection of the excise tax herein to be collected at the date of issu-anee of the building permit on each lot; and
WHEREAS, the City Council finds that there are a number of vacant lots in approved subdivisions and further subdivisions, either platted or soon to be platted, the development of which will impose an increased demand on the City’s wastewa-ter system, and the City Council therefore finds that it is necessary to adopt the provisions of this excise tax for the imposition of appropriate costs on such lots and future development;
* * * * ⅜
Sec. 8-617. Wastewater System New Development Excise Tax. There is hereby established and imposed a wastewater system new development excise tax to be levied, and collected on new development to be served by the City’s wastewater system, and used as set forth herein;
(a) For new residential construction the sum of eight hundred fifty dollars ($850.00) for homes up to twelve hundred (1,200) square feet and two dollars ($2.00) per square foot for each square foot in excess of twelve hundred (1,200) square feet.
(b) For non-residential construction one hundred fifteen dollars ($115.00) per employee plus four dollars ($4.00) per gallon per day of additional flow if the estimated wastewater flow is greater than thirty (30) gallons per day per employee. Water records for existing facilities will continue to be used to estimate future wastewater flow.
(c) The tax imposed herein shall be collected at the time a building permit is issued for all construction and based upon the square footage as set forth in said building permit. For residential expansions which includes [sic] the installation of plumbing fixtures, one dollar ($1.00) per square foot for each additional square foot added to the current structure.
(d) The funds collected from the imposition of this wastewater system new development excise tax shall be used for the future expansion and improvement of the City’s wastewater system. Funds collected shall be paid into the Wastewater Capital Account and accounted separately therein; such funds and the interest accruing thereon shall be used exclusively for wastewater expansion, improvements, and to pay debt service obligations issued to finance said future improvements and expansion of said wastewater system.

City contends the Excise Tax Ordinance is a tax on the use and enjoyment of a municipal service, namely, City’s wastewater collection and treatment system.

¶ 4 Association is a not-for-profit Oklahoma corporation that represents the interests of for-profit business entities, specifically those engaged in constructing new homes within Norman that exceed 1,200 square feet in size. Association challenges the residential component of the Excise Tax Ordinance, claiming it is illegal and void under state and federal law. Association argues the Excise Tax Ordinance is not a true excise tax but an ad valorem tax on real property and thus unconstitutional and invalid. In granting City’s motion for summary judgment, the trial court held City has the power to enact and levy such a tax; the tax is not against real property; and it is rationally related to the furtherance of a legitimate municipal goal.

¶ 5 Whether summary judgment was properly entered is a question of law we review de novo. Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455. In a de novo review, we have plenary, independent, and non-deferential authority to determine whether the trial court erred in its application of the law and whether a dispute exists as to any genuine issue of material fact. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. Like the trial court, we examine the pleadings and summary judgment evidentiary materials submitted by the parties to determine if a genuine issue of material fact is in dispute. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. In so doing, we view the facts and all reasonable inferences arising therefrom in the light most favorable to the non-moving party. Id.

¶ 6 Under Oklahoma law, there is a presumption in favor of the validity and constitutionality of a municipal ordinance. See City of Tulsa By and Through Tulsa Airport Auth. v. Air Tulsa, Inc., 1992 OK 146, ¶ 9, 851 P.2d 519, 522; McFall v. City of Shawnee, 1976 OK 185, ¶ 14, 559 P.2d 433, 437. “The declaration in a statute that the tax is of a particular nature, while not conclusive, is very important and must be given consideration in construing the statute.” In re City of Enid, 1945 OK 135, ¶ 10, 158 P.2d 348, 351, citing Lutz v. Arnold, 208 Ind. 480, 193 N.E. 840, 844.

¶ 7 Association argues City did not have the power to enact or levy the Excise Tax Ordinance. Article 10, § 20 of Oklahoma’s Constitution provides “[t]he Legislature shall not impose taxes for the purpose of any county, city, or town, or other 'municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes.” The Oklahoma Legislature has granted municipalities the power to tax, to-wit:

A. Any incorporated city or town in this state is hereby authorized to assess, levy, and collect taxes for general and special purposes of municipal government as the Legislature may levy and collect for purposes of state government except ad valo-rem property taxes. Provided:
1. Taxes shall be uniform upon the same class of subjects, and any tax, charge or fee levied upon or measured by income or receipts from sale of products or services shall be uniform upon all classes of taxpayers; ...

68 O.S.2001 § 2701(A). The Legislature further has provided:

Any taxes which may be levied by an incorporated city or town as authorized by this act shall not become valid until the ordinance setting the rate of such tax shall have been approved by a majority vote of the registered voters of such incorporated city or town voting on such question at a general or special municipal election and no ordinance shall be resubmitted for ratification within six (6) months following its defeat by the electors.

68 O.S.2001 § 2705. These provisions permit Oklahoma municipalities to assess, levy, and collect taxes for general and special purposes of municipal government as long as such taxes do not constitute ad valorem taxes, are uniform upon the same class of subjects, and are approved by majority vote.

¶8 Because City levies the Excise Tax Ordinance when it issues a building permit, Association argues the tax is properly classified as an ad valorem tax upon property and is thus invalid under Oklahoma law. Even if the adoption of the Excise Tax Ordinance were a proper exercise of City’s taxing power, Association maintains the portion of the Ordinance that imposes, in addition to the $850 base fee, a tax of $2 per square foot for each square foot over 1,200 square feet of new construction, is impermissible because it is not uniform as to all taxpayers.

¶ 9 An ad valorem tax is defined as:

According to value. A tax imposed on the value of property. The more common ad valorem tax is that imposed by states, counties, and cities on real estate. Ad valorem taxes, can, however be imposed upon personal property; e.g., a motor vehicle tax may be imposed upon the value of an automobile and is therefore deductible as a tax. A tax levied on property or an article of commerce in proportion to its value, as determined by assessment or appraisal. Callaway v. City of Overland Park, 211 Kan. 646, 508 P.2d 902, 907 (Kan.1973).
Duties are either ad valorem or specific; the former when the duty is laid in the form of a percentage on the value of the property the latter where it is imposed as a fixed sum on each article of a class without regard to its value.

Black’s Law DictionaRY 51 (6th ed.1990). Under Oklahoma law, real property for ad valorem taxation purposes is assessed annually at its fair cash value, which is estimated at the price it would bring at a fair voluntary sale for either (1) the highest and best use for which it was actually used during the preceding calendar year; or (2) the highest and best use for which it was last classified if not actually used during the preceding calendar year. 68 O.S.2001 § 2817(B)(1), (2).

¶ 10 An excise tax, on the other hand, is “[a] tax imposed on the performance of an act, the engaging in an occupation, or the enjoyment of a privilege.” Id. at 563, 193 N.E. 840. Distinguishing between the two types of taxes, the Supreme Court has held:

[A] “property tax” is levied directly on the property itself; ... the necessity of paying such a tax falls upon the owner of a particular property merely because he is the owner, regardless of the use or disposition made of the property; ... an “excise tax” is a tax imposed on performance of an act, engaging in an occupation, or enjoyment of a privilege; ... the obligation to pay an “excise tax” is based upon voluntary action of the person taxed in performing the act, engaging in the occupation, or enjoying the privilege, which is the subject of the excise, and the element of absolute and unavoidable demand, as in the case of a “property tax,” is lacking.

Scott-Rice Co. v. Oklahoma Tax Comm’n, 1972 OK 75, ¶ 14, 503 P.2d 208, 211, citing In re City of Enid, 1945 OK 135, 158 P.2d 348.

¶ 11 City’s Excise Tax Ordinance imposes a tax based on the square footage of proposed residential construction, not a percentage of the fair value of the underlying real property. Indeed, the Excise Tax Ordinance does not even provide a method for property valuation. City does not impose the tax annually, or at any other recurring interval, on the same piece of property as it typically would do were the tax ad valorem in nature. Rather, the Excise Tax Ordinance comes into play based only on the occurrence of a single event, namely, the property owner’s application for a permit to build a residence that will be served by City’s wastewa-ter system. City does not levy the tax “upon the owner of a particular property merely because he is the owner, regardless of the use or disposition made of the property,” Scott-Rice Co., supra. Rather, it is by engaging in the voluntary—and entirely avoidable—act of applying for a residential construction permit that Association’s members incur the one-time obligation to pay the tax. Indeed, property owners who do not plan to construct wastewater-dependant buildings on their land are not obligated to pay the tax at all. Accordingly, and as its title implies, the Excise Tax Ordinance imposes just that: an excise tax upon a particular use of property. Adoption of the Excise Tax Ordinance was thus a valid exercise of City’s taxing power.

¶ 12 Association urges that 68 O.S.2001 § 2806 prevents us from construing the Excise Tax Ordinance as anything but an ad valorem tax. Section 2806 provides “[r]eal property, for the purpose of ad valorem taxation, shall be construed to mean the land itself, and all rights and privileges thereto belonging or in any wise appertaining ... and all buildings, structures and improvements or other fixtures ... of whatsoever kind thereupon....” We agree with the trial court, this provision plainly applies only to existing buildings, structures, and improvements, and not to permits for proposed construction.

¶ 13 Association further insists 68 O.S.2001 § 2601 prescribes the only way in which City is permitted to levy a tax on a utility. Section 2601 allows municipalities to assess an annual tax on suppliers of power, light, heat, gas, electricity and water of up to 2% of gross receipts from suppliers’ residential and commercial sales. See 68 O.S.2001 § 2602. Such tax is “in lieu of any other franchise, license, occupation or excise tax, levied by such city or town.” 68 O.S.2001 § 2601. We are unpersuaded by Association’s argument that by permitting it to tax utility sales within the community, the Legislature meant to prohibit City from levying a tax against home builders to support future expansion of and improvements to City’s wastewater system. In any event, § 2601 applies to suppliers of water, not to users of the municipal wastewater system.

¶ 14 Association’s final argument is 68 O.S. 2001 § 1411, which permits municipalities to levy, in addition to sales tax, an excise tax on “the storage, use or other consumption of tangible personal property nsed, stored or consumed within the county or municipality.” Association maintains that because there is no language within § 1411 granting City the power to impose an excise tax against real property to support the provision of municipal services, it necessarily limits City’s excise taxing power to use, consumption, and storage of personal property only. Such is plainly not the law. Accordingly, Association’s argument in this regard is without merit.

¶ 15 Association next argues the Excise Tax Ordinance is illegal because it violates equal protection guarantees under federal and state law. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution mandates no state “deny to any person within its jurisdiction the equal protection of the laws.” Likewise, Article 2, section 7 of the Oklahoma Constitution declares, “[n]o person shall be deprived of life, liberty or property without due process of law.” “Although not an absolute guarantee of equality of operation or application of state legislation, the Equal Protection Clause is intended to safeguard the quality of governmental treatment against arbitrary discrimination.” Gladstone v. Bartlesville Ind. Sch. Dist. No. 30, 2003 OK 30, ¶ 9, 66 P.3d 442, 446.

¶ 16 Association bases its equal-protection argument on the conclusion of City’s engineering consulting firm that the estimated cost for all sewer collection system and treatment plant improvements would be $1,713 per new single-family home. According to Association’s calculations, builders who wish to construct new homes larger than 1,631.5 square feet will be forced to carry more than their fair share of the financial burden for wastewater improvement. Association argues this classification is not rationally related to any legitimate municipal purpose and violates the uniformity requirements of 68 O.S.2001 § 2701(A)(1).

¶ 17 Because Association does not claim the Excise Tax Ordinance’s alleged disproportionate taxation of builders of homes greater than 1631.5 square feet involves a fundamental right or was made along suspect lines, we accord the classification a strong presumption of validity. See Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 2646, 125 L.Ed.2d 257 (1993). Indeed, we will uphold economic legislation “which is not drawn upon siispect classifications or impinges upon anyone’s fundamental rights ... against an equal protection attack when the legislative means are rationally related to a legitimate governmental purpose.’’ Gladstone, ¶ 9, 66 P.3d at 446 (emphasis in original). Rational-basis scrutiny is a highly deferential standard under which a statutory classification is constitutional if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id., ¶ 12, 66 P.3d at 447, citing F.C.C. v. Beach Communciations, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993).

The rational-basis review in equal protection analysis “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” For these reasons, legislative bodies are generally “presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality.”

Gladstone, ¶ 12, 66 P.3d at 447. “Making classifications is at the heart of the legislative function. In the economic sphere, it is only the invidious discrimination — the purely arbitrary act that cannot stand in harmony with the federal and state equal rights guarantee — which will doom legislation.” Id., ¶ 18, 66 P.3d at 449.

¶ 18 For example, the plaintiff in Oklahoma Ass’n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, 901 P.2d 800, challenged a municipal tax ordinance that gave those Oklahoma City residents sixty-five years of age or over, the right to a refund of all or part of a sales tax specifically targeted to fund certain downtown revitalization projects. The plaintiff argued that the refund provision violated the uniformity mandate of § 2701(A) because it created a two-tiered taxation system, with those younger than sixty-five taxed at a higher rate. In upholding the refund provision, the Supreme Court found “[t]he language of § 2701(A) demonstrates a legislative intent to allow municipalities to create classes of taxpayers .... for the purpose of the levy and collection of a municipal sales taxes.” Id., ¶ 10, 901 P.2d at 804-05. The Supreme Court dismissed plaintiffs argument that municipalities must impose taxes uniformly upon all taxpayers, holding instead that municipal taxes need be uniform only as to each individual class of taxpayer. “Legislators are given especially broad latitude in creating classification and distinctions in tax statutes. Unless a classification jeopardizes the exercise of a fundamental right or it makes a classification on an inherently suspect characteristic, a classification which rationally furthers a legitimate state interest will withstand an equal protection challenge.” Id., ¶ 14, 901 P.2d at 805-06.

¶ 19 Consistent with Oklahoma Ass’n for Equitable Taxation, City may create classes of taxpayers for the purpose of financing improvements to its wastewater collection system and treatment facility without running afoul of either equal protection or the uniformity provision of § 2701(A) as long as there is a rational basis for the classification. As stated in the preamble to the Excise Tax Ordinance, “there are a number of vacant lots in approved subdivisions and further subdivisions, either platted or soon to be platted, the development of which will impose an increased demand on the City’s wastewa-ter system.” In light of this fact, City concluded “the costs of future improvements and expansion of its wastewater system should be borne by the users whose demand has created the need for future expansion and improvements” and “that it is necessary to adopt the provisions of this excise tax for the imposition of appropriate costs on such lots and future development.”

¶20 “The Equal Protection Clause does not, for purposes of rational-basis review, demand that a legislature actually articulate the purpose or the rationale that supports its classification.” Gladstone, ¶ 15, 66 P.3d at 448. Rather, a statutory classification will survive rational-basis constitutional scrutiny if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id., ¶ 12, 66 P.3d at 447. City’s Excise Tax Ordinance passes constitutional muster.

¶ 21 The Excise Tax Ordinance is a valid exercise of City’s taxing power under Oklahoma Law. It violates neither the equal protection provisions of the federal or state constitutions nor the unanimity requirement of 68 O.S.2001 § 2701(A)(1).

¶ 22 AFFIRMED.

HANSEN, J., and JONES, J., concur.

      . This appeal from the trial court's decision sustaining Appellee’s motion for summary judgment is submitted without appellate briefs in conformance with the procedures for the appellate accelerated docket, Okla. Sup.Ct. R. 1.36, 12 O.S. 2001, Ch 15, App.

      . Association concedes a majority of City's participating voters approved the Excise Tax Ordinance.

      . Subsequent amendments to 68 O.S. § 2817 are not implicated in the case at bar.

      . Pursuant to the Excise Tax Ordinance, the owner of a 1,631.5 square-foot home would have to pay a total of $1,731 in order to receive a construction permit to build a new residence. The figure is arrived at by calculating the number of square feet over 1,200 (1631.5-1,200 = 431.5), multiplying it by $2 per square foot (431.5 x $2 = $863) and adding that sum to the $850 base charge for the original 1,200 square feet ($863 + $850 = $1,731). Given that $1,731 is the amount City's engineering consultants estimated each new home would cost City in waste-water collection and treatment improvements, Association concludes that any new home over 1,631.5 square feet in size would be forced to pay more than $1,731 in taxes, which is greater than its actual project impact on the system.


author: ADAMS, Judge:

text:
    2004 OK CIV APP 20
    DEPARTMENT OF HUMAN SERVICES, Plaintiff/Appellant, v. Billy J. CHISUM, Defendant/Appellee.
    No. 97,479.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Jan. 23, 2004.

      Jonathan C. Neff, David M. Messer, Bruñe & Neff, P.C., Tulsa, OK, for Plaintiff/Appel-lee.
    John M. Sharp, Amy E. Wilson, Department of Human Services, Tulsa, OK, for De-fendanVAppellant.
   OPINION

ADAMS, Judge:

¶ 1 The Oklahoma Department of Human Services (DHS) appeals from an order granting Billy Jo Chisum’s motion to vacate a support order that was based upon his execution of an affidavit of paternity. The trial judge concluded Chisum established a material mistake of fact under 10 O.S.Supp.1999 § 70. We reject DHS’ arguments that § 70 may not be applied under the circumstances of this case and affirm the trial court’s order.

¶ 2 The child, A, was born out of wedlock on June 7, 1999, and Chisum signed a voluntary acknowledgement of paternity that same day. Chisum stated under oath that he signed the acknowledgment based upon assertions by A’s mother that he was the child’s father, and the record contains no evidence to dispute this fact.

¶ 3 In February of 2000, Chisum agreed to the entry of an Administrative Order for Child Support which recited that he had executed an acknowledgment of paternity, determined he was A’s father, and set the amount of child support. The administrative order was docketed in the District Court of Tulsa County on May 8, 2000.

¶ 4 Several months later, Chisum suspected he was not A’s father and had private DNA testing performed. The results excluded him as A’s father. On April 16, 2001, Chisum filed his motion to vacate both the child support order and his prior acknowledgment of paternity, alleging material mistake of fact as a basis. The trial court entered an order for genetic testing of A and Chisum in June of 2001, and that test also excluded Chisum as A’s father. The trial judge granted Chisum’s motion, finding that the parties agreed Chisum was not A’s father, and that he had established his acknowledgment was based on material mistake of fact. This appeal followed.

¶ 5 For reversal, DHS argues Chisum failed to state any grounds recognized in 12 O.S.2001 § 1031.1 for vacating what it says was a final order determining Chisum was A’s father. Accordingly, DHS argues Chi-sum is bound by res judicata. However, where it applies, § 70(C)(1) specifically provides for a proceeding to establish that an acknowledgment was the result of a material mistake of fact and for the release of the “person signing the acknowledgment of paternity” from “any court-ordered or Department-ordered payments for the support and maintenance of the child” if the court determines the person is not the father of the child. The specific provisions of § 70 control over the more general provisions of 12 O.S. 2001 § 1031.1. See Parks v. Stith, 1951 OK 144, 232 P.2d 614, 204 Okl. 625. Chisum was not barred by res judicata from challenging the child support order and his acknowledgment under § 70.

¶ 6 DHS also argues that the provisions of § 70 in effect at the time Chisum signed the acknowledgment did not allow him to withdraw his acknowledgment on any ground after sixty days. We agree. The amendments to § 70 became effective three days after Chisum signed the acknowledgment. However, this does not end the inquiry. The time limits set forth in § 70 are essentially statutes of limitation. At the time the amendments to § 70 became effective, Chi-sum’s right to challenge the acknowledgment under the pre-amendment statute was not time-barred, and the Legislature’s decision to extend the time period beyond the sixty-day period for certain criteria will be given effect. See Trinity Broadcasting Corporation v. Leeco Oil Company, 1984 OK 80, 692 P.2d 1364. The trial court did not err in applying § 70, as amended, to this ease.

¶ 7 Even if § 70 applies, DHS argues Chisum did not establish a “material mistake of fact.” Relying on the definition of “mistake of fact” contained in 15 O.S.2001 § 63, DHS argues Chisum’s ignorance of the true facts concerning A’s paternity was caused by his “neglect of legal duty” because he did not insist on genetic testing before signing the acknowledgment. However, DHS has cited no authority imposing a legal duty on a putative father to insist on genetic testing before assuming responsibility for a child born out of wedlock, and we decline to impose such a duty, at least where there is evidence that the mother has made positive assertions to the putative father concerning his paternity. The trial court did not err in concluding Chisum had established a “material mistake of fact.”

¶ 8 Finally, DHS argues that the trial court erred because it did not consider the “best interests” of the child in deciding whether Chisum could challenge his acknowledgment of paternity. In essence, DHS argues that Chisum should be treated as A’s father, even though he is not his biological father, because equitable considerations require it.

¶ 9 To support this argument, DHS cites several opinions from courts in other states which imposed a child support obligation on a man not the biological father of a child. Most turn on principles such as “equitable parenthood,” “psychological parenthood,” or equitable estoppel. For example, in Monmouth County Division of Social Services v. R.K., 334 N.J.Super. 177, 757 A.2d 319, 324 (2000), the court employed a balancing test. The putative father had signed an admission of paternity and consented to paying child support, but later arguably presented “clear and convincing evidence that there was a material mistake of fact relied upon at the time his paternity was adjudicated — that mistake being that he was the biological father.” Nevertheless, the court concluded he was the child’s “psychological father” and should be “equitably estopped from denying his paternity because to do otherwise would not be in the best interests of [the child].”

¶ 10 We may not employ such a test. In Barber v. Barber, 2003 OK 52, 77 P.3d 576, the Court held equitable estoppel and similar equitable theories are not applicable in paternity proceedings to establish legal paternity in a man who is not the child’s biological father.

¶ 11 DHS has not demonstrated any error in the trial court’s order, and the trial court’s order is affirmed. Chisum’s request for appellate attorney fees under 12 O.S.2001 § 941, based upon his contention that DHS’ appeal lacked a reasonable basis, is denied.

AFFIRMED.

JONES, J., and BUETTNER, V.C.J./P.J., concur.

      . According to a trial court brief filed by Chisum, this suspicion was based on a more recent statement by A's mother that Chisum was not the father.

      . The DHS approach is likely to inject an element of hostility into the oftentimes already volatile emotional relationships arising out of the birth of a child out of wedlock. Not only is such testing expensive, but the putative father’s request of such tests may be perceived as an attack on the mother's veracity and an attempt to shirk responsibility for the child.

      . Although the Court analyzed only "equitable estoppel" in depth, it noted that Mr. Barber, who was not the child's biological father, argued "he should be treated as [the child]'s father under a theory of 'equitable parenthood,’ or 'equitable adoption' or in [the child]'s best interest,” 2003 OK 52, ¶ 3, 77 P.3d 576, 578. We can only conclude that it rejected those other theories because' the Court affirmed the trial court's decision rejecting Mr. Barber's claims of paternity, despite a trial court finding that it would be in the child's best interest for Mr. Barber to be treated as his father.

      . Barber was decided after the appellate briefing was completed in this appeal.