author: LAVENDER, J.: WATT, V.C.J.,

text:
    2002 OK 97
    The STATE of Oklahoma, ex rel., Moshe TAL, resident taxpayer of the City of Oklahoma City, Oklahoma & Taxpayers Against Ripoffs (“T.A.R.”), an association of more than ten resident taxpayers of the City of Oklahoma City, Plaintiffs/Appellees, and MaryGaye LeBoeuf, Appellee, v. The CITY OF OKLAHOMA CITY (“City”), Oklahoma, a municipal corporation; Ronald J. Norick, in his personal and official capacity as former Mayor of the City; Kirk D. Humphreys, in his personal and official capacity as the Mayor of the City; James E. Thompson, in his personal and official capacity as Assistant City Manager & former MAPS Director; William 0. West, in his personal and official capacity as City’s Municipal Counselor; Daniel T. Brummitt, in his personal and official capacity as City’s Assistant Municipal Counselor; The Oklahoma Urban Renewal Authority (“Urban Renewal”), a public body corporate; Tiana P. Douglas, in her personal and official capacity as the Executive Director of Urban Renewal; Stanton L. Young, Fred Jones Hall, J. Larry Nichols, Warren Gardner, and James R. Tolbert III, in their personal and official capacities as Commissioners of the Urban Renewal; William (“Bill”) O. Johnstone, in his personal and official capacity as the former Commissioner of Urban Renewal; Dan Batchelor, in his personal and official capacity as legal counselor of Urban Renewal, Defendants, and Bricktown Parking Investors, L.L.C., an Oklahoma Limited Liability Company; Bricktown-TMK/Hogan Parking, L.L.C., an Oklahoma Limited Liability Company; OKC Athletic Club Limited Partnership, an Oklahoma Limited Partnership, Defendants/Appellants, and BAP-Bricktown, L.L.C., an Oklahoma Limited Liability Company, Defendant, and TMK/Hogan, a Joint Venture; Bricktown TMK/Hogan Entertainment, L.L.C., an Oklahoma Limited Liability Company; Hogan Property Management, L.L.C., an Oklahoma Limited Liability Company, Defendants/Appellants, and Torchmark Corporation (“TMK”), an Alabama corporation; Torchmark Development Corporation (“TDC”) and TMK Income Properties, L.P. (“TIP”) both subsidiaries of TMK, Defendants, and Dan Randolph (“Randy”) Hogan, Defendant/Appellant, and Edwards Theatres Circuit, Inc., a California corporation; Oklahoma Gas & Electric Company (“OG & E”), an Oklahoma corporation; The Benham Group, an Oklahoma corporation; and John Doe No. 1-50, Defendants. The State of Oklahoma, ex rel., Moshe Tal, resident taxpayer of the City of Oklahoma City, Oklahoma & Taxpayers Against Ripoffs (“T.A.R.”), an association of more than ten resident taxpayers of the City of Oklahoma City, Plaintiffs/Appellants, V. The City of Oklahoma City (“City”), Oklahoma, a municipal corporation; Ronald J. Norick, in his personal and official capacity as former Mayor of the City; Kirk D. Humphreys, in his personal and official capacity as the Mayor of the City; James E. Thompson, in his personal and official capacity as Assistant City Manager & former MAPS Director; William 0. West, in his personal and official capacity as City’s Municipal Counselor; Daniel T. Brummitt, in his personal and official capacity as City’s Assistant Municipal Counselor; The Oklahoma Urban Renewal Authority (“Urban Renewal”), a public body corporate; Tiana P. Douglas, in her personal and official capacity as the Executive Director of Urban Renewal; Stanton L. Young, Fred Jones Hall, J. Larry Nichols, Warren Gardner, and James R. Tolbert III, in their personal and official capacities as Commissioners of the Urban Renewal; William (“Bill”) 0. Johnstone, in his personal and official capacity as the former Commissioner of Urban Renewal; Dan Batchelor, in his personal and official capacity as legal counselor of Urban Renewal; Bricktown Parking Investors, L.L.C., an Oklahoma Limited Liability Company; Bricktown-TMK/Hogan Parking, L.L.C., an Oklahoma Limited Liability Company; OKC Athletic Club Limited Partnership, an Oklahoma Limited Partnership, Defendants/Appellees, and BAP-Bricktown, L.L.C., an Oklahoma Limited Liability Company, Defendant, and TMK/Hogan, a Joint Venture; Bricktown TMK/Hogan Entertainment, L.L.C., an Oklahoma Limited Liability Company; Hogan Property Management, L.L.C., an Oklahoma Limited Liability Company, Defendants/Appellees, and Torchmark Corporation (“TMK”), an Alabama corporation; Torchmark Development Corporation (“TDC”) and TMK Income Properties, L.P. (“TIP”) both subsidiaries of TMK, Defendants, and Dan Randolph (“Randy”) Hogan, Defendant/Appellee, and Edwards Theatres Circuit, Inc., a California corporation; Oklahoma Gas & Electric Company (“OG & E”), an Oklahoma corporation; The Benham Group, an Oklahoma corporation; and John Doe No. 1-50, Defendants.
    Nos. 95,271, 95,741.
    Supreme Court of Oklahoma.
    Dec. 17, 2002.
    As Corrected Dec. 26, 2002.

      MaryGaye LeBoeuf, Oklahoma City, OK, for Moshe Tal, Taxpayers Against Ripoffs and herself in Case No. 95,271.
    James F. Davis of Andrews Davis Legg Bixler Milsten & Price, Oklahoma City, OK, for the City of Oklahoma City, Ronald J. Norick, Kirk D. Humphreys, James E. Thompson, William 0. West and Daniel T. Brummitt.
    James Dan Batchelor and Jams S. Powers of Batchelor & Powers, Oklahoma City, OK, and John C. McMurry, Oklahoma City, OK, for the Oklahoma City Urban Renewal Authority, Stanley L. Young, Fred Jones Hall, J., Larry Nichols, Warren Gardner, James R. Tolbert III, William 0. Johnstone, Tiana P. Douglas and James Dan Batchelor.
    Melvin R. McVay, Jr., Robert N. Sheets, Heather L. Hintz and Ellen K. Spiropoulos of Phillips McFall McCaffrey McVay & Mur-rah, P.C., Oklahoma City, Oklahoma for Briektown Parking Investors, L.L.C., Brick-town-TMK/Hogan Parking, L.L.C., OKC Athletic Club Limited Partnership, TMK/Hogan, a Joint Venture, Briektown TMK/Hogan Entertainment, L.L.C., Hogan Property Management, L.L.C. and Dan Randolph Hogan.
   LAVENDER, J.:

¶ 1 These two appeals come from the same trial court case and require resolution of two questions. (1) Did the trial judge err in denying a motion for sanctions filed pursuant to 12 O.S.Supp.1994, § 2011 (now 12 O.S. 2001, § 2011) by seven private-sector defendants (the Hogan group) against plaintiffs (Moshe Tal and Taxpayers Against Ripoffs— T.A.R. — a group of taxpayers who brought the underlying qui tarn suit against said defendants and others) and plaintiffs’ attorney, MaryGaye LeBoeuf? (2) Did he err in granting three motions for attorney fees, anchored on his inherent authority to sanction bad faith litigation misconduct, filed solely against plaintiffs by twenty-two (22) defendants — City of Oklahoma City and related defendants (City); Oklahoma City Urban Renewal Authority and related defendants (OCURA); and the Hogan group? We hold the trial court did not err in denying the § 2011 motion, but did in granting attorney fees under his inherent authority.

PART I. STANDARD OF REVIEW.

¶ 2 The appellate review standard of a sanction ruling is abuse of discretion. Hammonds v. Osteopathic Hospital Founders Association, 1996 OK 100, 934 P.2d 319, 322 (propriety of sanctions under § 2011); Broadwater v. Courtney, 1991 OK 39, 809 P.2d 1310 (propriety of sanctions under § 2011 and 23 O.S.2001, § 103); see also Meadows v. Wal-Mart Stores, Inc., 2001 OK 25, 21 P.3d 48 (review of decision to not impose sanctions in regard to discovery matter and under § 103) and Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447,110 L.Ed.2d 359 (1990)(review standard of sanction ruling under Fed.R.Civ.Pro. 11, 28 U.S.C.A. [Rule 11], is abuse of discretion). In that § 2011 is adopted from its federal counterpart Rule 11, we may look to federal case law to aid in its interpretation and application. Warner v. Hillcrest Medical Center, 1995 OK CIV APP 123, 914 P.2d 1060, 1064, cert, denied 519 U.S. 861, 117 S.Ct. 165, 136 L.Ed.2d 108 (1996).

¶ 3 To reverse for abuse of discretion we must determine the trial judge made a clearly erroneous conclusion and judgment, against reason and evidence. Abel v. Tisdale, 1980 OK 161, 619 P.2d 608, 612. Also, proceedings to impose sanctions are considered equitable in nature. Warner v. Hill-crest Medical Center, supra, 914 P.2d at 1072. Though an appellate court examines and weighs any proof in the record, it abides the presumption the lower court decision on the sanction question is legally correct and cannot be disturbed unless contrary to the weight of the evidence or to a governing principle of law. Id. If legally correct the trial judge’s decision may not be reversed because of faulty reasoning, an erroneous finding of fact, or the consideration of an immaterial issue. Id.

PART II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY.

¶ 4 Title 62 O.S.1991, §§ 372-373 (now 62 O.S.2001, §§ 372-373) are qui tarn statutes. State ex rel. Trimble v. City of Moore, 1991 OK 97, 818 P.2d 889, 892. Section 373 provides that after written demand to a governmental entity (like City) by a sufficient number of taxpayers claiming a transaction using public funds is unauthorized, unlawful, fraudulent or void, if the public entity refuses, fails or neglects to either institute or diligently prosecute proper legal or equitable proceedings to recover any money or property belonging to the public entity, the taxpayers may bring an action in the name of the State of Oklahoma for the recovery, including a statutory (§ 372) treble damage penalty. Under § 373 the taxpayer is allowed to keep one-half (½) of the money and one-half (⅜) the value of property recovered, as a reward.

¶ 5 In January 1999 T.A.R. submitted a written demand to City under §§ 372-373 (City of Oklahoma City v. Oklahoma City Urban Renewal Authority [Tal I ], 1999 OK 71, ¶ 2, 988 P.2d 901, 903) alleging certain transactions connected with the Oklahoma City Metropolitan Area Projects (MAPS) were unlawful. MAPS began with the passage of a one-cent sales tax increase by Oklahoma City voters. The extra revenue was earmarked to construct certain new projects (e.g. Bricktown Ballpark and Canal) and renovate existing structures (e.g. the Myriad Convention Center). Tal I, 1999 OK 71, at ¶ 9, 988 P.2d at 904-905.

¶ 6 In response to the demand City filed a declaratory judgment suit against OCURA and two of the private-sector defendants. The suit covered three agreements dealt with in the written demand — a Parking Agreement, a Ground Lease and a Redevelopment Agreement (the Agreements). In the suit City asked the lower court to declare the Agreements lawful and, alternatively, if determined unlawful that an order issue that OCURA return certain property to City and that all amounts owed City be returned as well. City did not raise any issue(s) concerning part of the written demand — Claim III thereof — that challenged the lawfulness of City’s decision to construct a new power plant to serve the renovated Myriad Convention Center and a new sports/events Arena built near it. Nor did City raise issues covered in the demand concerning alleged self-dealing and conflicts of interest of certain public officials, allegations claimed to support the unlawfulness of the Agreements and the power plant transaction(s).

¶ 7 Represented by other counsel than Ms. LeBoeuf, T.A.R. sought to intervene in the declaratory action, claiming, in effect, City was not diligently prosecuting the suit because City’s position was the Agreements were lawful (the position taken by all named parties). Intervention was denied and, thereafter, trial was had without T.A.R.’s participation, although the depositions of, at least, some of T.A.R.’s members were taken about a week before trial and were considered by the trial court before ruling on the motion to intervene. Tal I, 1999 OK 71, at ¶ 5, 988 P.2d at 904. After trial a judgment ruling the Agreements lawful issued and a mandatory injunction was entered requiring OCURA to carry out the terms of the Agreements between itself and the private-sector defendants. Tal I, 1999 OK 71, at ¶ 7, 988 P.2d at 904. The judgment held the public property covered by the Agreement(s) had been sold for adequate consideration and that the Agreements provided adequate accountability and safeguards to OCURA and City. Tal I, 1999 OK 71, at ¶¶ 11-12, 988 P.2d at 905.

¶ 8 T.A.R. appealed the denial of intervention and Tal I affirmed because City was representing the rights of all its taxpayers, City was entitled to the presumption it would do so in good faith and taxpayers failed to overcome the presumption City would act in good faith in presenting the matter of the Agreements’ lawfulness to the trial court. Tal I, 1999 OK 71, at ¶ 31, 988 P.2d at 908. Tal I also opined that the fact all parties to the declaratory suit agreed the Agreements were lawful did not deprive the action of its justiciable character, nor were the issues presented in it feigned or collusive. 1999 OK 71, 'at ¶ 29, 988 P.2d at 907. We also note neither in the trial court (in its written submissions — motion to intervene and motion for continuance and brief of authorities in support of motion to intervene) nor in its appellate brief submitted in Tal I to support reversal of the denial of intervention did T.A.R. assert-City’s failure to raise any issue concerning the power-plant allegations of the written demand or, except in a cryptic manner, City’s failure to assert in the declaratory suit the claims of self-dealing and conflict of interest of certain public officials.

¶ 9 Also, in Tal I it was expressly stated that only the narrow issue of whether the trial court erred in denying taxpayers’ motion to intervene (and a related motion for a continuance) was before this Court. Tal I, 1999 OK 71, at ¶ 14, 988 P.2d at 905. Tal I also, in effect, ruled, that because taxpayers were properly denied intervention they were excluded as party litigants and had no standing to tender for our review in that appeal any errors that may have been made in the judgment upholding the Agreements as lawful. Tal I; 1999 OK 71, at ¶ 23, 988 P.2d at 906. Thus, although Tal I discussed the Agreements, it did not affirm the trial court judgment declaring their lawfulness [Tal I, 1999 OK 71, at ¶ 0 and ¶ 31, 988 P.2d at 902 and 908] because no party actually appealed the trial court’s merit judgment. Only T.A.R. sought to appeal from it, but because intervention wa's denied we ruled they lacked standing to tender any errors made in regard thereto.

■ ¶ 10 Another previous case involving T.A.R. has also been before this Court, State ex rel. Tal v. Norick {Tal II), 1999 OK 85, 991 P.2d 999. Prior to the January 1999 written demand, T.A.R. had submitted an earlier written demand (September 1998) to City concerning transactions other than those involved in Tal I, to wit: the Bricktown Ballpark contract(s). Tal II, 1999 OK 85, at ¶ 4, 991 P.2d at 1000. T.A.R. filed a qui tam action in relation to the Ballpark eontract(s) against City and the Oklahoma City Public Property Authority (OCPPA). Id. However, City and OCPPA responded to the September 1998 demand with a declaratory suit asking the lower court to declare the Ballpark -transaction(s) valid or, alternatively, if determined unlawful, sought return of the property. Tal II, 1999 OK 85, at ¶ 5, 991 P.2d at 1000. In Tal II we affirmed a trial court decision dismissing the Ballpark qui tam action on the basis it was brought prematurely because City and OCPPA were prosecuting the declaratory action and were entitled to the presumption they would do so in good faith. Tal II, 1999 OK 85, at ¶¶ 6-9, 991 P.2d at 1000-1001. In essence, T.A.R. argued in Tal II, as in Tal I, that City, and OCPPA in Tal II, could not diligently prosecute the Ballpark declaratory suit because they disagreed that the involved contract(s) were unlawful, but believed and asserted the contract(s) were lawful.

¶ 11 In March 2000, after Tal I and II, T.A.R. brought the qui tam suit underlying the present appeals. The trial court’s dismissal of the suit was affirmed in State ex rel. Tal v. City of Oklahoma (Tal III), 2000 OK 70,19 P.3d 268, cert, denied 534 U.S. 814, 122 S.Ct. 40, 151 L.Ed.2d 13 (2001) on the basis Tal I’s holding that T.A.R. did not have standing to intervene in City’s prior declaratory suit because of the failure to show City was not adequately representing their interests or those of the other taxpayers of Oklahoma City, in the declaratory suit, precluded the qui tam action regarding the same projects). Although Tal III did not specify the preclusion doctrine applied, the parties here seem to agree it was claim (res judicata) and/or issue (collateral estoppel) preclusion.

¶ 12 The Hogan group’s § 2011 motion for sanctions (including a request for attorney fees) against plaintiffs and Ms. LeBoeuf was denied by a judgment filed on August 22, 2000. However, separate motions of City, OCURA and the Hogan group for attorney fees against plaintiffs were granted by the trial judge under his inherent authority to sanction bad faith litigation misconduct in a December 12, 2000 judgment. Fees of $53,394.00 to City, $67,404.00 to OCURA and $63,355.00 to the Hogan group were awarded. An argument made (in the trial court and on appeal) by one or more of the defendants to support sanctions/attorney fees against plaintiffs is that the qui tam suit was brought for the improper purpose of delaying the MAPS projects — as Mr. Tal (leader of T.A.R.) was an unsuccessful bidder on Brick-town projects — and for monetary gain under the reward provision of § 373. Also, it was argued (and reiterated on appeal), in effect, no competent attorney could make a reasonable argument, given Tal I and II, that the qui tam action was not precluded.

¶ 13 Ms. LeBoeuf and plaintiffs argue (as in the trial court) that the qui tam action was not brought for any improper purpose and that a reasonable argument existed that it was not precluded. They assert that Ms. LeBoeuf, after conducting extensive factual investigation into the qui tam written demand claims and significant legal research into whether preclusion doctrine barred the suit, concluded a competent attorney could make a reasonable argument the action was not precluded. She so advised her clients and the action was filed.

¶ 14 Ms. LeBoeuf also prepared on plaintiffs’ behalf and filed in the trial court extensive submission(s) setting forth the position as to why the suit was not barred. Part of the argument was and is that Tal I can be read to be limited only to the intervention question and it did not absolutely foreclose an argument that City did not actually diligently prosecute the claims made in the written demand through the vehicle of the declaratory suit. ' She argued that because City expressly disagreed with taxpayers’ claims of illegality and invalidity, and because certain present and/or former public officials (directly or indirectly involved in prosecution of the declaratory suit) had conflicts of .interest with the taxpayers of City — generally based on alleged self-dealing and conflicts regarding the Agreements and power plant transaction(s) — City could not be deemed to have diligently prosecuted the claims of unlawfulness in Tal I. In effect, plaintiffs asserted all of the claims made in the demand as to the alleged unlawfulness of the transactions covered were not fully and fairly investigated or presented by City in the declaratory suit and this failure on City’s part provided an exception to applying a preclusion bar. It was also argued, in essence, that the manner in which City presented the declaratory suit (acquiesced in and/or assisted by the other parties thereto), including a limited exposition of the claims made in the written demand, coupled with the speed with which the declaratory suit proceeded (it was filed on January 16, 1999 and tried on March 1st of the same year — Tal I, supra, 1999 OK 71, at ¶ 4, 988 P.2d at 904), and a failure to timely notify taxpayers of the trial setting, was intended to and did prevent taxpayers from fully presenting to the trial court presiding over the declaratory suit both the merits undergirding the written demand claims of unlawfulness and from making a more detailed showing of the inadequacy of City’s prosecution of the suit.

¶ 16 The Hogan group appeals the § 2011 motion denial. Plaintiffs appeal the granting of the attorney fee motions under the trial court’s inherent authority. We now affirm denial of the former and reverse the grant of the attorney fee motions.

PART III. CASE NO. 95,271 — APPEAL BY HOGAN GROUP — THE TRIAL JUDGE DID NOT ABUSE HIS DISCRETION IN DENYING THE § 2011 MOTION.

¶ 16 Oklahoma follows the American Rule as to the recovery of attorney fees. The Rule is generally that each litigant pays for their own legal representation and our courts are without authority to assess attorney fees in the absence of a specific statute or contract allowing for their recovery. Kay v. Venezuelan Sun Oil Co., 1991 OK 16, 806 P.2d 648, 650. Exceptions to the Rule are narrowly defined [id] and carved out with great caution [Beard v. Richards, 1991 OK 117, 820 P.2d 812, 816] because it is understood liberality of attorney fee awards against the non-prevailing party has a chilling effect on our open access to courts guarantee. Id. Section 2011 provides a statutory basis for the award of attorney fees under certain limited circumstances.

¶ 17 Section 2011 provides in pertinent part:

A. SIGNATURE. Every pleading, written, motion, and other paper shall be signed by at least one attorney of record in his individual name, ... or, if the party is not represented by an attorney, shall be signed by the party....
B. REPRESENTATIONS TO COURT. By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
1. It is not being presented for any -improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
2. The claims, defenses and other legal contentions'therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
3. The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
4. The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
C. SANCTIONS. If, after notice and a reasonable opportunity to respond, the court determines that subsection B of this section has been violated, the court shall, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subsection B of this section or are responsible for the violation.
1. HOW INITIATED.
a. By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subsection B of this section. It shall be served as provided in Section 2005 of this title, but shall not be filed with or presented to the court unless, within twenty-one (21) days after service of the motion or such other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorneys fees incurred in presenting or opposing the motion....
2. NATURE OF SANCTIONS; LIMITATIONS. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs a and b of this paragraph, the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys fees and other expenses incurred as a direct result of the violation.
a. Monetary sanctions shall not be awarded against a represented party for a violation of paragraph 2 of subsection B of this section.

Like its federal counterpart Rule 11, § 2011 requires an attorney make reasonable inquiry to assure all motions, pleadings and papers filed with a court have a factual basis, are legally tenable and are not submitted for an improper purpose. See Cooter & Gell v. Hartmarx Corp., supra, 496 U.S. at 393, 110 S.Ct. 2447. Boiled down, § 2011 attempts to discourage presenting to a court (whether by signing, filing, submitting or later advocating) a pleading, written motion or other paper that is legally and/or factually frivolous, or for an improper purpose, such as delay. The central goal is to deter baseless filings. Cooter & Gell v. Hartmarx Corp., 496 U.S. at 393, 110 S.Ct. 2447. Sanctions rightly exist to ensure the orderly and proper functioning of the legal system [Cities Service Co. v. Gulf Oil Corp., 1999 OK 16, ¶ 8, 976 P.2d 545, 548] and serve the dual purposes of deterring and punishing offending conduct. See id. However, they should not be, and are not intended to be, a device to chill novel legal theories that, although unlikely to succeed, have a reasonable basis in law and fact. See TRW/ Reda Pump v. Brewington, 1992 OK 31, 829 P.2d 15, 22-23 (involving test as to appeal frivolity under 20 O.S.2001, § 15.1).

¶ 18 The propriety of sanctions under § 2011 in regard to legal or factual frivolity of a claim dr defense does not depend on the attorney’s subjective good faith and having a pure heart, but empty head provides no defense to a sanction order under the statute. Warner v. Hillcrest Medical Center, supra, 914 P.2d at 1064; First Nat. Bank and Trust Co. of Vinita v. Kissee, 1993 OK 96, 859 P.2d 502, 512. When faced with deciding if sanctions should be imposed under § 2011, a court must view the matter through the eyes of a competent attorney who is advocating the claim of his/her client(s). An objective test is used to decide if a competent lawyer could make a reasonable argument supporting the legal theory advanced [Hammonds v. Osteopathic Hospital Founders Association, supra, 934 P.2d at 322-323], but the test is not whether the argument, claim or defense being presented is ultimately successful. See id. and Broad water v. Courtney, supra, 809 P.2d at 1312-1313. To constitute a frivolous legal position it must be clear under existing precedents that there is no chance for success and no reasonable argument to extend, modify or reverse the law as it stands. Mareno v. Rowe, 910 F.2d 1043, 1047 (2nd Cir.1990), cert, denied 498 U.S. 1028, 111 S.Ct. 681, 112 L.Ed.2d 673 (1991). The same objective test applies when a plaintiff is faced with having to respond to an affirmative defense. See In re Edmonds, 924 F.2d 176, 181-182 (10th Cir.1991); White v. General Motors Corporation, Inc., 908 F.2d 675, 682 (10th Cir.1990), cert, denied 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991); see also Industrial Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434, 1448 (11th Cir.1998), cert, denied 525 U.S. 1068, 119 S.Ct. 797,142 L.Ed.2d 659 (1999)(for imposition of sanctions under Rule 11 for excessive relitigation of issue already decided the disputed issue must have been clearly decided by court’s earlier orders and counsel’s relitigation must clearly offer no meritorious new arguments).

¶ 19 Although the argument(s) put forward by Ms. LeBoeuf in response to the dismissal motions of the underlying qui tam suit were unsuccessful as evidenced by our affirming dismissal on preclusion grounds in Tal III, the question is whether her arguments as to why the qui tam suit was not precluded were nonetheless objectively reasonable, rather than being baseless, or factually or legally frivolous. We believe as a matter of law the arguments were not objectively unreasonable, nor were they shown to be baseless, or factually or legally frivolous.

¶ 20 The central elements of claim and issue preclusion are well known. Deloney v. Downey, 1997 OK 102, ¶ 17, 944 P.2d 312, 318. Claim preclusion bars relit-igation by parties or their privies of issues which either were or could have been litigated in a prior action which resulted in a prior judgment on the merits. Id. In other words, where the two causes of action are the same the .first judgment is a complete bar to the second action. McKee v. Producers’ & Refiners’ Corp., 1935 OK 160, 41 P.2d 466, 469. Issue preclusion requires, at a minimum, that the party against whom it is being asserted was either a party to or a privy of a party to the prior action and that the issue subject to preclusion have actually been adjudicated in the prior case in which said issue was necessary or essential to its outcome [Deloney, 1997 OK 102, at ¶ 17, 944 P.2d at 318], but the doctrine does not require the successive causes of action to be the same. McKee, 41 P.2d at 469. For either to be properly applied the party against whom it is interposed, or someone in privity with such party, must have had a full and fair opportunity to litigate the claim or critical issue. Richards v. Jefferson County, Alabama, 517 U.S. 793, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996); Nealis v. Baird, 1999 OK 98, ¶ 51, 996 P.2d 438, 458. In essence, plaintiffs argued — in response to the motions filed by defendants to dismiss the underlying qui tam action on preclusion grounds — that City could not be said to be in privity with taxpayers as to the claims of unlawfulness raised in the written demand because City’s position was directly at odds with taxpayers’ position, City did not adequately represent the interests of Oklahoma City taxpayers generally in the prior declaratory suit, and that they (taxpayers) never had a full and fair opportunity to present the claims raised in the written demand or the adequacy of City’s prosecution of the declaratory suit sufficient to invoke a preclusion bar.

¶21 Although normally a prior action by a public governmental entity in a qui tam-like situation does support application of the doctrine of preclusion as to all claims that were raised or could have been raised in the prior suit in a subsequent taxpayer action involving the same transaction(s), in the normal situation the governmental entity litigating the prior suit agrees with the taxpayers concerning the unlawfulness of the challenged transaction(s). See e.g. Jackson v. Sadler, 1935 OK 490, 44 P.2d 838 (county action to cancel deed and later suit by taxpayer for same relief after prior proceeding brought by county terminated in judgment against county). The reason that a later taxpayer action is precluded is that in the absence of fraud or collusion in the prior suit, the taxpayers are merely bringing the subsequent suit in the stead of the governmental entity and, they, like all residents of the city, county or governmental unit involved, are bound by the former judgment. Jackson, supra, 44 P.2d at 842. If this were not so, each citizen, resident or taxpayer would be at liberty to commence a suit to relitigate the same question repeatedly, and it would, thus, be difficult to imagine what efficacy could ever be given to the former judgment. Id. at 842-843. Therefore, when a public entity actually diligently prosecutes a suit after a qui tam written demand and seeks to recover public money or property, i.e. the justice of the taxpayer claims are not disputed, a later claim by taxpayers challenging the same transactions already litigated by the public entity is barred as to issues raised in the prior suit or those that could have been raised. Such a rule serves the salient purpose of bringing an end to litigation and allowing public officials and those with whom they contract concerning public projects or funds to go about the business of serving the public welfare.

¶ 22 This Court has also ruled that the right of a taxpayer to institute and maintain a qui tam action does not accrue until the proper officers fail or refuse to institute and prosecute the action, and if such officers do institute and diligently prosecute a proper action, the right of the taxpayer to institute and prosecute the qui tam suit never even accrues. State ex rel. Watson v. Board of Com’rs of Lincoln County, 1943 OK 56, 137 P.2d 240 Syllabus by the Court. However, our eases also seem to make plain that a halfhearted effort on the part of public officials in pursuit of an action following a qui tam written demand does not suffice to cut off the taxpayer right to pursue an action in their own right. See State ex rel. Sheet v. Ingram, 1933 OK 373, 23 P.2d 648, overruled in part on other grounds in State Board of County Com’rs of Pontotoc County ex rel. Braly v. Ford, 1941 OK 270, 116 P.2d 988; see also Threadgill v. Peterson, 1923 OK 662, 219 P. 389 and Wood v. Phillips, 1923 OK 668, 219 P. 646 (taxpayers of municipal subdivision or county should be allowed to intervene in suit brought against public entity on alleged contractual claim so that suit may be properly defended when the governmental entity fails to mount an appropriate defense and essentially agrees said claim should be paid).

¶23 The issue Tal I decided was that taxpayers were properly denied intervention in City’s declaratory judgment suit because they failed to overcome the presumption City was prosecuting that suit in good faith to test the legality of the challenged Agreements. Although, in essence, Tal I stated that the fact all parties to the declaratory suit agreed on the lawfulness of the Agreements did not show the suit was collusive or fictitious, there can be no serious question City’s declaratory suit was a friendly one because all parties to it disagreed with the claims made in the written demand and argued the lawfulness of the Agreements presented in that case. Because of the need to resolve speedily an issue of public importance, there can also be little question that Tal I relaxed the strict necessity of a true or a high level of adverseness normally required for there to be a justicia-ble live case or controversy sufficient to invoke a court’s authority to hear a dispute. Tal I, supra, 1999 OK 71, at ¶¶ 25-30, 988 P.2d at 907-908; see Application of Goodwin, 1979 OK 106, 597 P.2d 762. There also seems to be no question that City did not raise in the declaratory suit all the claims made in the written demand to support the unlawfulness of the Agreements or the claims made as to the invalidity of the power plant transaction(s).

¶ 24 In Richards v. Jefferson County, Alabama; supra, the United States Supreme Court found it necessary to distinguish between two types of taxpayer actions to decide a preclusion issue involving prior litigation. 517 U.S. at 802-804, 116 S.Ct. 1761. In one type of taxpayer action, the taxpayer is using his status as such to entitle him/her to complain about the misuse of public funds or about public action that has only an indirect impact on the taxpayer(s). Id. at 803, 116 S.Ct. 1761. An example is a qui tam proceeding. In the other type, the taxpayer challenges public action that attempts to levy or reach the personal funds of the taxpayer. Id. As to the former situation, the Supreme Court recognized states have wide latitude to establish procedures limiting the number of judicial proceedings that may be entertained or to determine whether to afford a taxpayer any standing at all. Id. As to the latter, however, the Supreme Court held that where taxpayers received neither notice of, nor sufficient representation in, the prior litigation, as a matter of federal due process, the prior adjudication could not bind them or bar them from challenging an allegedly unconstitutional tax.

¶ 25 The situation involved here, of course, is the former type, i.e. a qui tam action, and it was correct to apply the preclusion bar in regard to further litigation of this matter because plaintiffs should have raised all of their claimed deficiencies regarding City’s prior declaratory judgment suit in that proceeding' — notwithstanding their technical non-party status in the prior action — either at the trial level or in their appeal of the denial of intervention in that ease. Nevertheless, we conclude the position put forward in the trial court by Ms. LeBoeuf as to why the instant qui tam suit was not wholly precluded did not fall below the objective standard of § 2011. In our view, though the argument was not particularly strong (some may even characterize it as fairly weak), we believe a competent lawyer could make a reasonable argument (although ultimately an unavailing one) supporting the legal theory advanced, to wit: that the underlying suit here was not wholly barred by preclusion doctrine and there was still a potentially viable live controversy based on the assertion(s) that City did not adequately/diligently prosecute all of the claims in the written demand and taxpayers did not have a full and fair opportunity in the earlier declaratory suit to present those claims because they were not parties to it, or a full and fair opportunity to present in that suit all relevant issues concerning the adequacy/diligen-cy of City’s prosecution of the suit. Despite the fact that the position was flawed and a preclusion bar was appropriate, it simply cannot be said that at the time the argument was made the existing precedents clearly showed there was no chance' of success. Thus, the trial court decision to deny the § 2011 motion for sanctions of the Hogan group does not evidence an abuse of discretion and the denial must be affirmed.

PART IV. CASE NO. 95,741 — APPEAL BY PLAINTIFFS — THE TRIAL JUDGE ABUSED HIS DISCRETION IN GRANTING ATTORNEY FEES UNDER HIS INHERENT AUTHORITY.

¶ 26 City National Bank & Trust Co. v. Owens, 1977 OK 86, 565 P.2d 4, recognized the inherent equitable authority of a trial court to award attorney fees against a party for bad faith litigation misconduct— conduct that is vexatious, wanton or engaged in for oppressive reasons. The authority springs from a court’s power to manage its own affairs to achieve the orderly and timely disposition of cases and is a necessary implicit element in the existence of a judicial system. See Winters By and Through Winters v. City of Oklahoma City, 1987 OK 63, 740 P.2d 724, 726. Owens’ progeny makes plain, however, the inherent authority exception to the American Rule recognized in Owens (1) is a narrow one; (2) should be applied with a degree of caution and restraint; and (3) was not intended to grant trial courts some broad, all-encompassing equitable authority to award attorney fees. Smith v. State ex rel. Dept, of Human Services, 1990 OK 19, 788 P.2d 959, 961-962; see also Wallace v. Halliburton Co., 1993 OK 24, 850 P.2d 1056, 1060-1061. In plain words, the inherent power was not meant to be a mechanism to sanction or punish parties or their attorneys for raising novel theories or espousing unpopular causes that are neither baseless nor frivolous. For attorney fees to be awarded under a court’s inherent authority “overriding considerations” must indicate the need for such a recovery. Owens, 565 P.2d at 8-9. Our review of the record convinces us the trial court applied his inherent authority broadly rather than narrowly, he did not employ the required amount of caution and restraint, his application of that authority in the circumstances evident here was irreconcilably at odds with the denial of monetary sanctions under § 2011, and no overriding considerations warranted the imposition of sanctions in the form of attorney fees.

¶ 27 In Chambers v. NASCO, Inc., 501 U.S. 32, 46-47, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), reh. denied 501 U.S. 1269, 112 S.Ct. 12, 115 L.Ed.2d 1097 (1991) the United States Supreme Court recognized that the inherent power of a court to impose sanctions is both broader and narrower than Rule 11, § 2011’s federal counterpart. It is broader because its reach is more extensive in that it extends to the full range of litigation abuses [id.] and a written document, through filing or advocacy, does not necessarily figure into the equation. It is narrower, however, because a finding of bad faith conduct or willful disobedience of a court’s orders is required, as opposed to Rule 11 where an objective standard of reasonable inquiry is imposed that does not require a finding of bad faith. Id. Furthermore, when there is offending conduct in the course of litigation that could be adequately sanctioned under § 2011, or similar statutory provision, a court should ordinarily rely on said statute rather than its inherent authority. Chambers v. NASCO, Inc., 501 U.S. at 50, 111 S.Ct. 2123. Only if in the informed discretion of the lower court an applicable statute or rule is not up to the task should the court rely on its inherent power. Id.

¶ 28 In our view, because it was not objectively unreasonable for Ms. LeBoeuf to make the legal argument — based on her factual investigation, review of applicable law, including this Court’s opinions in Tal I and Tal II — that the underlying qui tarn suit was not precluded, the plaintiffs (the clients) may not be sanctioned simply for following that legal advice in the form of having the suit filed and having Ms. LeBoeuf respond to the motion(s) to dismiss that were based on preclusion grounds. But our review of the record convinces us that is what occurred.

¶ 29 Generally, it is inappropriate to sanction the client for following their lawyer’s legal advice. See e.g. Patterson v. Alaska Airlines, Inc., 756 F.Supp. 476, 480 (W.D.Wash.1990)(it is attorney’s responsibility to determine whether statute of limitation has run, not the client’s responsibility, for purposes of determining which of them— attorney, client, or both — is subject to sanctions under Rule 11); Taylor v. United States, 151 F.R.D. 389 (D.Kan.1993)(normally, client entitled to rely on attorney’s legal advice). This is nothing more than a recognition that sanctions under § 2011 should be imposed upon the individual responsible for the filing of the offending document. Chevron, U.S.A., Inc. v. Hand, 763 F.2d 1184, 1187 (10th Cir.1985).

¶ 30 Á review of the record in these appeals leads us to conclude the plaintiffs were not sanctioned for any actual litigation misconduct or culpable conduct of their own, such as providing their attorney with incorrect facts, or some similar conduct that would involve the clients’ own bad faith litigation misconduct. Such latter conduct, i.e. providing the attorney with false factual information or failing to provide obviously pertinent information to their counsel would, of course, permit sanctions solely against the client. See Taylor v. United States, supra. That is not the situation here, however. The conduct sanctioned, as we see it, was for having the lawsuit filed and for mounting a response to the motions to dismiss. The clients cannot be sanctioned for said conduct when the trial court was of the view it was not appropriate to sanction plaintiffs’ counsel (which we agree was an appropriate decision or, at least, not an abuse of the trial judge’s discretion) under § 2011.

¶ 31 Given the legal advice relied upon it would also be inappropriate to conclude T.A.R. filed suit merely for the improper purpose of delaying the development of certain Bricktown projects because Mr. Tal was an unsuccessful bidder on some Bricktown projects. It is simply not unusual for an unsuccessful bidder on a public project to bring a qui tam-like proceeding questioning the legality or validity of a contract or transaction that has actually been awarded. See e.g. Ferch v. District Court of City and County of Denver, 123 Colo. 262, 227 P.2d 997 (1951). As the Colorado Supreme Court recognized: “[disinterested citizens are seldom diligent at investigation of the conduct of public officials and often it is only upon disagreement of the parties directly involved and pursuant to selfish desires that the facts of illegal or improper contracts are brought to light.” Fetch, 227 P.2d at 999. Yes, the transaction(s) or contract(s) attacked as unlawful were sought to be constrained by the plaintiffs, but that is no different than in the vast majority, if not all, qui tam suits. Further, that monetary gain was part of the motivation for the qui tam suit is also not a valid indicator of some improper purpose. Section 373 itself provides for a reward to the taxpayer that vindicates the public fisc through the means of a qui tam lawsuit.

¶ 32 In that it was not objectively unreasonable to have filed the qui tam suit and to have mounted a response to defendants’ motions to dismiss based on preclusion, and because the record does not support a conclusion there was some overriding need for a monetary attorney fee sanction, the trial judge abused his discretion in using his inherent power against plaintiffs as he did. As a matter of law that authority was applied too broadly, inconsistently with City National Bank & Trust Co. v. Owens, supra and progeny, and the trial judge’s use of his inherent authority, in the circumstances evident here, was irreconcilably at odds with the § 2011 motion denial. The attorney fee awards to the City, OCURA and the Hogan group must, therefore, be reversed.

PARTV. CONCLUSION.

¶ 33 The trial judge did not err in denying the Hogan group motion for sanctions made pursuant to § 2011 because it was not objectively unreasonable for Ms. LeBoeuf and plaintiffs to have filed the underlying qui tam suit nor to mount a response to defendants’ motions to dismiss based on preclusion grounds. As a matter of law, however, the trial court abused his discretion in granting, under his inherent authority to sanction bad faith litigation misconduct, the motions of City, OCURA and the Hogan group for attorney fees.

¶ 34 Accordingly, the trial court judgment appealed in Case No. 95,271 is AFFIRMED and the trial court judgment appealed in Case No. 95,741 is REVERSED.

¶ 35 HARGRAVE, C.J., HODGES, KAUGER, SUMMERS and BOUDREAU, JJ., concur.

¶ 36 OPALA, J., concurs in parts I through III; concurs in result in part IV.

¶ 37 WATT, V.C.J. and WINCHESTER, J., dissent.

WATT, V.C.J.,

with whom WINCHESTER, J. joins, dissenting:

DISSENTING OPINION

¶ 1 I dissent to the majority opinion. I would reverse the trial court for having declined to impose sanctions under 12 O.S. § 2011. I would affirm the trial court’s having awarded attorneys’ fees under its inherent power to do so where bad faith has been established. My reasons for dissenting here are set out at some length in my dissenting opinion in Tal III, State ex rel. Tal v. City of Oklahoma City, 2000 OK 70, 19 P.3d 268.

      . We sua sponte consolidate the two appeals for opinion. Consolidation promotes a coherent body of law because the appeals emanate from the same trial court case, and one appeal involves denial of sanctions against represented parties and their attorney under 12 O.S.2001, § 2011 and the other a grant of sanctions in the form of attorney fees against the same represented parties under a trial court’s inherent authority to sanction bad faith litigation misconduct.

      . Attorneys appeared for plaintiffs and filed briefs on their behalf in Appeal Case No. 95,741 other than MaryGaye LeBoeuf, who represents plaintiffs and herself in Appeal Case No. 95,271.

      . A question concerning whether all the private-sector defendants that had their motion for § 2011 sanctions denied by the trial judge’s August 22, 2000 judgment appealed via Case No. 95,271requires some discussion. Although eight private-sector defendants filed the § 2011 motion, only seven appealed the denial in Case No. 95,271. The Petition in Error filed in that appeal on September 21, 2000 states under the heading "I[,] TRIAL COURT HISTORY ... NAME OF PARTY OR PARTIES FILING THIS PETITION IN ERROR” that it is filed on behalf of the following seven defendants: Briektown Parking Investors, L.L.C., an Oklahoma Limited Liability Company; Bricktown-TMK/Hogan Parking, L.L.C., an Oklahoma Limited Liability Company; OKC Athletic Club Limited Partnership, an Oklahoma Limited Partnership; TMK/Hogan, a Joint Venture; Briektown TMK/Hogan Entertainment, L.L.C., an Oklahoma Limited Liability Company; Hogan Property Management, L.L.C., an Oklahoma Limited Liability Company; and Dan Randolph ("Randy”) Hogan (the Hogan group). The defendant not listed is BAP-Bricktown, L.L.C., an Oklahoma Limited Liability Company. Though the Hogan group briefs in Case No. 95,271(March 19 and May 21, 2001) name eight private-sector defendants as appellants, the extra one named in the briefs is Torchmark Corporation ("TMK”), an Alabama corporation, not BAP-Bricktown. Torchmark is not mentioned in the August 22nd judgment appealed in Case No. 95,271nor in the December 12, 2000 judgment appealed by plaintiffs in Case No. 95,741 and neither judgment denied nor granted sanctions/attorney fees to Torchmark. Although another law firm filed an Entry of Appearance on BAP-Bricktown’s behalf in Case No. 95,271, no separate Petition in Error or brief(s) were filed in the appeal on its behalf. BAP-Bricktown is not an appellee in Case No. 95,741 as it is not mentioned in the December 12th judgment plaintiffs challenge in that appeal. For these reasons and others disclosed by the record submitted in the appeals (unnecessary to detail) we do not consider BAP-Bricktown as invoking our appellate jurisdiction in Case No. 95,271 and it is not a party to either appeal. See Bane v. Anderson, Bryant & Co., 1989 OK 140, 786 P.2d 1230, 1233-1234. In that Torchmark is not mentioned in either judgment it is not a party to either appeal, though for some reason it is listed on the initial/cover pages, the introductory paragraph (page one) and signature page of the March 19th brief in chief and the initial/cover pages and signature page of the May 21st reply brief of the Hogan group filed in Case No. 95,271.

      . The Hogan group also seems to assert the law of the case doctrine. Even if that doctrine is applicable, in our view, the arguments raised by plaintiffs and Ms. LeBoeuf as to why .the underlying qui tam action was not wholly barred/precluded, although unsuccessful, did not fall below the objective reasonableness standard of a competent attorney sufficient to support a sanction award against plaintiffs or Ms. LeBoeuf.

      . The City of Oklahoma City and related defendants (City) and the Oklahoma City Urban Renewal Authority and related defendants (OCURA) also moved for sanctions against plaintiffs and ' Ms. LeBoeuf under § 2011. The motions were denied in the same August 22nd judgment that denied the Hogan group motion. Neither City nor OCURA appealed the denial.

      .Title 62 O.S.1991, § 373 was amended in 2000 to allow the recovery of attorney fees by public officials (or others alleged in the written demand to have paid out or received any money or property unlawfully or fraudulently) if all claims in the taxpayers' written demand are determined frivolous. 2000 Okla. Sess. Laws, Ch. 351, § 9 (West). The amendment was effective June 6, 2000. This was after the January 1999 written demand and the March 2000 filing of the underlying qui tam action by plaintiffs/taxpayers. We express no view on the amendment here.

      . As indicated in the text, City of Oklahoma City v. Oklahoma City Urban Renewal Authority (Tal I), 1999 OK 71, ¶ 4, 988 P.2d 901, 904 states City’s declaratory suit was filed on January 16, 1999. However, attached to plaintiffs (sic) brief in opposition to defendants’ motions to dismiss filed on April 20, 2000 in the underlying qui tarn suit involved in these appeals is a copy of City's petition in the declaratory suit showing a file-stamp date of January 26, 1999.

      . We note we do not find State ex rel. Oklahoma Bar Ass’n v. Tweedy, 2000 OK 37, 52 P.3d 1003, cert, denied 531 U.S. 1145, 121 S.Ct. 1082, 148 L.Ed.2d 958 (2001), to be controlling on the sanction issue(s) involved in this case. We also do not believe, as explained in PART IV; infra, at ¶31, that an appropriate conclusion could be reached that the underlying qui tam suit was filed for the purported improper purposes of delay or monetary gain such that sanctions under § 2011 were warranted. We further note it is not our purpose here to revisit Tal I, Tal II or Tal III, but merely to determine if, in the face of Tal I and Tal II, the argument Ms. LeBoeuf put forward that the underlying qui tam action was not barred by preclusion, claim or issue, was one — under an objective reasonableness standard — a competent attorney could make.

      . In view of our reversal of the attorney fee judgment appealed by plaintiffs in Appeal Case No. 95,741 we need decide no issue raised by them in said appeal concerning the reasonableness of the amount of fees awarded.


source: Caselaw Access Project

author: WATT, Vice Chief Justice. KAUGER, J.

license: Public Domain

text:
    2002 OK 100
    In the Matter of the ESTATE OF Michael Dennis TYTANIC, Deceased. Joseph Charles Tytanic, Petitioner-Appellant, v. Phillip James Tytanic, Respondent-Appellee.
    Nos. 96,818, 96,817.
    Supreme Court of Oklahoma.
    Dec. 17, 2002.

      Charles L. Fagin, Fagin, Fagin & Nixon, Oklahoma City, for Appellant.
    J. Michael Entz, Law Offices of J. Michael Entz, Oklahoma City, and James L. Menzer, Menzer Law Offices, P.C., Blackwell, for Ap-pellee.
   OPINION

WATT, Vice Chief Justice.

FACTS AND PROCEDURAL BACKGROUND

¶ 1 The decedent, Michael Dennis Tytanic, was involved in a common law relationship with Brenda Tytanic from 1969 until the parties were divorced on January 15, 1975. Appellee, Phillip Tytanic was born on February 15, 1974. Brenda Tytanic obtained a birth certificate for Phillip Tytanic, which stated that Michael Tytanic was Phillip Ty-tanic’s father.

¶2 On April 15, 1976, decedent sought a modification of the terms of the divorce decree. In his motion to modify decedent alleged, in a verified pleading, that Brenda Tytanic had concealed an adulterous relationship from him, that Brenda Tytanic had prevented him from obtaining a record of Phillip Tytanic’s blood type, and that were he able to obtain that information it would prove that Phillip Tytanic was not his natural child. Based on these allegations, decedent sought an order from the court requiring the parties to submit to blood tests.

¶ 3 The plaintiff, Brenda Tytanic, agreed to an order of the court, which found: (1) “That there is a question of paternity of said child involved.” (2) “No further consent of the Defendant shall be necessary in the event Plaintiff desires that said minor child be adopted by her present husband or other person.” and (3) “In light of the wishes and desires of both parties, it would be in the best interests of the minor child of these parties to have the parental rights of the Defendant terminated and, likewise, the duty to support said minor child by said Defendant terminated.”

¶4 Decedent died intestate on April 4, 2001. Decedent’s brother, Joseph Tytanic, filed a petition for letters of administration on May 1, 2001, in which he alleged that he, his brother, and his sister were Michael Ty-tanie’s sole heirs at law. The brother also alleged that, although Phillip Tytanic claimed to be decedent’s son, he was not. In support of this allegation, the brother attached a copy of the agreed order of vacation, discussed above, to his petition for letters and prayed that the court make a factual determination as to who were Michael Tytanic’s heirs at law.

¶ 5 Phillip Tytanic filed an answer (denominated a “Reply”) to the brother’s petition for letters in which he alleged that he was decedent’s son and sole heir. On May 30, 2001 Joseph Tytanic filed a motion to require Phillip Tytanic to submit to DNA testing for the purpose of determining whether Phillip Ty-tanic was the natural child of the decedent.

¶ 6 The parties both filed motions for summary judgment in which the issue was whether Joseph Tytanic, as the brother of the decedent is prohibited, as a matter of law, from disputing the statutory presumption of legitimacy created by 10 O.S.2001 § 2. Section 2(A)(1) provides that “a man is presumed to be the natural father of a child for all intents and purposes if: He and the child’s natural mother have been married to each other and the child is born during the marriage ...” Section 2(B) provides, however, that “The presumption of paternity created pursuant to this section may be disputed pursuant to 'Section 3 of this title [10 O.S. 2001 § 3].” Section 3(A) provides that § 2’s presumption of paternity “may be disputed only by the husband or wife, the putative father or their descendants.”

¶ 7 Phillip Tytanic claims that the brother is not one of decedent’s “descendants” under § 3 and, therefore, is prohibited, as a matter of law, from having the issue of whether he is decedent’s biological child determined by DNA testing. The trial court and the Court of Civil Appeals agreed. The brother, however,'claims that the facts presented in this matter entitle him to raise the issue of paternity and that, under 10 O.S.2001 § 501, he is entitled to an order requiring Phillip Tytanic to provide a sample for DNA testing, or be declared not to be the decedent’s heir.

¶ 8 For the reasons set out in the balance of this opinion, we hold that the brother, Joseph Tytanic, did have standing under 10 O.S. § 3 to seek DNA testing of Phillip Ty-tanic in order to either prove or disprove that Phillip Tytanic is the decedent Michael Tytanic’s son and heir.

DISCUSSION

¶ 9 Title 10 O.S.2001 § 501 expressly provides that in any action where paternity is an issue “the court shall order the mother, child and putative father to submit to genetic testing.” Nevertheless, the trial court and the Court of Civil Appeals held that § 501 was not available to the brother because the brother lacked “standing” under 10 O.S.2001 § 3 to challenge Phillip Tytanie’s claim that Phillip Tytanic was the decedent’s son. We disagree.

¶ 10 The undisputed facts of this matter show that the decedent filed a verified pleading claiming that the mother had fraudulently concealed from him that Phillip Tytanic was not decedent’s son. Further, the mother agreed to an order that recognized that whether Phillip Tytanic was or was not the decedent’s child was an issue and relieved decedent of all parental responsibilities. That order also expressly allowed the mother to allow the adoption of Phillip Tytanic by her then husband without the “further consent” of the defendant. These undisputed facts would support the inference that the mother agreed to the trial court’s order in order to avoid allowing the decedent to learn her son’s blood type. Under these circumstances, we decline to interpret 10 O.S. § 3 so as to prevent the resolution of the ultimate issue: Is Phillip Tytanic the decedent’s son? Further, the brother, as decedent’s personal representative, stood in decedent’s shoes and under the facts presented here, clearly had standing to raise the issue of Phillip Tytanic’s paternity.

¶ 11 This Court analyzed the basis for 10 O.S. § 3 in In re Peacock’s Will, 1923 OK 96, 212 P. 989. There, the Court held that a collateral heir of a decedent lacked standing to attack the testimony of the decedent’s putative father that he was, indeed, the decedent’s father. There, this Court held that the purpose of what is now § 3 was to prevent “the bastardizing of children born in wedlock against the wishes and perhaps against the protest of their putative parents.” 212 P. at 990 (quoting with approval from Ex Parte Madalina, 174 Cal. 693, 164 P. 348, 1 ALR 1629, interpreting a California statute identical to § 3). Decedent’s successful attempt to be relieved of parental duties with respect to Phillip Tytanic on the basis that he was not Phillip Tytanic’s father, and that the mother had fraudulently concealed this fact from him, clearly shows that decedent’s brother was championing decedent’s wishes, not countering them. There is nothing in § 3 under these circumstances that demonstrates a legislative intent to deprive the brother of the right to have the paternity issue tried as a precondition to Phillip Tytanic’s inheritance of the decedent’s estate. The undisputed facts would support the inference that decedent had no desire for his estate to pass to Phillip Tytanic if Phillip Tytanic was not decedent’s biological son. Equally importantly, these facts would also support the inference that Phillip Tytanic could hardly have thought otherwise. Thus, the public policy that § 3 was designed to protect is not violated by the interpretation we give it today requiring that the issue of Phillip Tytanic’s paternity be tried and resolved.

¶ 12 There is another important reason for our holding that the brother has standing to seek DNA testing of Phillip Tytanie. In 1967 the Legislature passed the Genetic Testing to Determine Paternity Act, 10 O.S. 2001 §§ 501, et seq. Dramatic advances in genetic testing have made it possible to determine paternity with nearly one-hundred per-cent accuracy. We hold, therefore, that the Act applies to the issue of paternity in this matter and the trial court is directed to enter an order under § 501 of the Act requiring Phillip Tytanie to submit to DNA testing. The undisputed facts in the record before us convince us that both common sense and fairness require that the issue of whether Phillip Tytanie is or is not decedent’s son and heir be tried and decided under the Act.

CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS’ OPINION VACATED, JUDGMENT REVERSED AND CAUSE REMANDED WITH INSTRUCTIONS.

HODGES, OPALA, SUMMERS, BOUDREAU, WINCHESTER, JJ., CONCUR.

LAVENDER and KAUGER, JJ., CONCUR IN RESULT.

HARGRAVE, C.J., DISSENTS.

KAUGER, J.

concurring in result:

¶ 1 I concur in the result reached by the majority — that, under the facts presented, the petitioner-appellant, Joseph Charles Ty-tantic, brother of the decedent, has standing under 10 O.S.2001 § 3 and 10 O.S.2001 501 to seek DNA testing of Phillip Tytantic for purposes of establishing a paternity relationship with the decedent. I write separately to emphasize three points: 1). a mother may not, through agreement or otherwise, relieve a putative father of the obligation to support his minor child; 2) neither termination of the decedent’s parental rights nor the adoption of the purported son affects the right of a child to inherit; and 3) when reviewing a cause, this Court relies on the record evidence rather than on some arbitrary “inference.”

¶ 2 The majority emphasizes that the mother entered into an agreed order indicating that: paternity was an issue; adoption of the minor child could be accomplished without the decedent’s consent; and the decedent’s parental rights and support obligations should be terminated. Pursuant to this Court’s opinion in State ex rel. Oklahoma Dept, of Human Serv. v. T.D.G., 1993 OK 126, 861 P.2d 990, the mother’s agreement regarding the putative father’s duty of support was void as against public policy. We have recently recognized that T.D.G. stands for the proposition that no parent may, through settlement, agreement, or otherwise, compromise the child’s right to enforce a support obligation against its parent. Therefore, the agreement of the mother here is irrelevant to any right the child might have had to pursue recovery of support obligations.

¶ 3 The decedent’s parental rights had been terminated. Although the termination of parental rights precluded the decedent’s right to inherit from his purported child, it had no affect on the purported son’s reciprocal rights. Title 10 O.S.2001 § 7006-1.3 provides in pertinent part:

“A. The termination of parental rights terminates the parent-child relationship, including the parent’s right to the custody of the child and the parent’s right to visit the child, the parent’s right to control the child’s training and education, the necessity for the parent to consent to the adoption of the child, the parent’s right to the earnings of the child, and the parent’s right to inherit from or through the child. Provided, that nothing herein shall in any way affect the right of the child to inherit from the parent_” [Emphasis provided.]

Likewise, once the purported son was adopted, the father lost the right to inherit the son’s estate. However, even the adoption does not affect the son’s right of inheritance from his purported father. Title 10 O.S. 7505-2.1(L)(l) provides:

“The preadoption termination of parental rights pursuant to this section terminates the parent-child relationship, including the parent’s right to the custody of the child and the parent’s right to visit the child, the parent’s right to control the child’s training and education, the necessity for the parent to consent to the adoption of the child, the parent’s right to the earnings of the child, and the parent’s right to inherit from or through the child. Provided, that this subsection shall not in any way affect the right of the child to inherit from the parent.” [Emphasis provided.]

¶ 4 The majority “infers” that: the mother agreed to the trial court’s order to avoid allowing the decedent to learn her son’s blood type; the decedent didn’t want his estate to pass to a non-biological son; and that the purported son could not have assumed the father intended him to inherit. One might just as easily “infer” from the facts that: the mother would have agreed to anything to have obtained a timely resolution of the termination of parental rights and legal adoption of her son; being deemed to know the law, the father intentionally failed to execute a will so that the purported son would be the sole heir under the laws intestate; and had he wanted his brother to share in the estate, the purported father would have executed a will to ensure that result, naming the brother and specifically disinheriting the son. The possibility that different individuals might consider the same facts and draw differing “inferences” is one of the reasons that review in this Court is limited to the issues shown by the record to have actually been presented and tendered to the trial court.

      .Title 10 O.S.2001 § 2 provides:
      A. Except as otherwise provided by Section 215 of Title 84 of the Oklahoma Statutes, a man is presumed to be the natural father of a child for all intents and purposes if:
      1. He and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within ten (10) months after the termination of the marriage by death, annulment, declaration of invalidity, ■ divorce or dissolution, or after a decree of separation is entered by a court. A child born before wedlock becomes legitimate by the subsequent marriage of his parents even if the marriage is, was or could be declared invalid. Any child born within the ten-month period specified in this subsection which is born during a subsequent marriage to another person shall be presumed to be the legitimate child of that subsequent marriage;
      2. Before the child’s birth, he and the child’s natural mother have cohabitated and the child is born within ten (10) months after the termination of cohabitation. As used in this paragraph, the term cohabitation means the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to law;
      3. While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child for a period of at least two (2) years;
      4. The United States Immigration and Naturalization Service made or accepted a determination that he was the father of the child at the time of the child's entry into the United States and he had the opportunity at the time of the child’s entry into the United States to admit or deny the paternal relationship; or
      5.Statistical probability of paternity is established at ninety-five percent (95%) or more by scientifically reliable genetic tests, including but not limited to blood tests.
      B. The presumption of paternity created pursuant to this section may be disputed pursuant to Section 3 of this title.

      . Title 10 O.S.2001 § 3 provides:
      A. The presumption of paternity created pursuant to Section 2 of this title may be disputed only by the husband or wife, the putative father or their descendants. Paternity may be established pursuant to Section 70 of this title.
      B. If a child is born during the course of the marriage and is reared by the husband and wife as a member of their family without disputing the child’s legitimacy for a period of at least two (2) years, the presumption cannot be disputed by anyone.

      . Title 10 O.S. § 501 provides:
      In a civil action in which paternity is a relevant fact and at issue, the court shall order the mother, child and putative father to submit to genetic testing. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require unless such individual is found to have good cause for refusing to cooperate.

      . The concurring opinion’s conclusion that this Court " 'infers' that: the mother agreed to the trial court's order to avoid allowing the defendant [the decedent] to learn her son's blood type” reveals a misapprehension of the true meaning of this Court's opinion. This opinion does not stand for the proposition that the mother waived her son’s right to claim he was the decedent’s son. Instead, it stands for the proposition that the decedent never waived his right to have determined the question of paternity and that the decedent's and the mother's conduct following tire divorce would, (not does) support the inference that Phillip Tytanic was, indeed, not decedent's son. The fact that this inference might be drawn from the facts does no more nor less than demonstrate the unfairness that would inhere in construing 10 O.S. § 3 so as to prohibit the brother from having the paternity issue resolved.

      . The Court of Civil Appeals relied on In re Peacock’s Will in Matter of Estate of Raulston, 1990 OK CIV APP 79, 805 P.2d 113. There, the court held that collateral heirs of a decedent had no standing under 10 O.S. § 3 to resist the claim of paternity of the decedent's putative daughter. Although there was no formal, sworn evidence to reflect that the decedent had denied paternity, the Court of Civil Appeals’ opinion is, nevertheless, expressly disapproved to the extent it could be interpreted to reach a conclusion contrary to that which we reach here today.

      . Title 10 O.S.2001 § 3 provides:
      "A. The presumption of paternity created pursuant to Section 2 of this title may be disputed only by the husband or wife, the putative father or their descendants. Paternity may be established pursuant to Section 70 of this title.
      B. If a child is born during the course of the marriage and is reared by the husband and wife as a member of their family without disputing the child’s legitimacy for a period of at least two (2) years, the presumption cannot be disputed by anyone.”

      . Title 10 O.S.2001 § 501 provides:
      "In a civil action in which paternity is a relevant fact and at issue, the court shall order the mother, child and putative father to submit to genetic testing. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require unless such individual is found to have good cause for refusing to cooperate.”

        .Hedges v. Hedges, 2002 OK 92, ¶ 1, — P.3d -. Although mandate has not yet issued in Hedges, the primary issue presented in the cause concerned a mother's defenses to an altered child support agreement, not the agreement or waiver of the child’s right.

      . Matter of Estate of Flowers, 1993 OK 19, ¶ 0, 848 P.2d 1146.

      . See also, Matter of the Estate of Marriott, 1973 OK 85, ¶ 10, 515 P.2d 571 [Supplemental opinion on rehearing].

      . Kincaid v. Black Angus Motel, Inc., 1999 OK 54, ¶ 23, 983 P.2d 1016; Hughey v. Grand River Dam Auth., 1995 OK 56, ¶ 9, 897 P.2d 1138. See also, Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, ¶ 11, 981 P.2d 1244 [A reviewing court may take notice only of that record which is before it.]; Frey v. Independence Fire & Casualty Co., 1985 OK 25, ¶ 7, 698 P.2d 17.


author: THORNE, Judge:

text:
    2002 UT App 405
    SOUTH SALT LAKE CITY, Plaintiff and Appellee, v. Trisha TERKELSON, Ruth Stone, Amanda Morris, and Penny Payne, Defendants and Appellants.
    No. 20010760-CA.
    Court of Appeals of Utah.
    Nov. 29, 2002.

      W. Andrew McCullough, McCullough & Associates, Midvale, for Appellants.
    Sarah A. Giacovelli, Paul H. Proctor, and David M. Carlson, South Salt Lake City, for Appellee.
    Before BENCH, ORME, and THORNE, Jr., JJ.
   OPINION

THORNE, Judge:

¶ 1 Trisha Terkelson, Ruth Stone, Amanda Morris, and Penny Payne (Defendants) argue that the City of South Salt Lake (the City) violated their due process rights when it altered its previously announced interpretation of its Sexually Oriented Business Ordinance and enforced that change without first providing Defendants notice. We reverse Defendants’ convictions and remand for further proceedings.

BACKGROUND

¶ 2 In December 1999, the South Salt Lake City Police Department directed undercover police officers to purchase “private sessions” with nude women at several local adult entertainment clubs (the Clubs). The purpose of the undercover operation was to verify that the employees were operating within the limits of the City’s ordinance that restricted touching between patrons and employees “while performing.” The officers knew the Clubs were equipped with video equipment where they could remotely observe all private dances. However, rather than utilize the videos, the officers elected to participate in the private sessions themselves, instigating contact between Defendants and themselves, and then citing Defendants for allowing the contact.

¶ 3 The case was first heard in justice court. There, Defendants argued the City violated their due process rights when it altered its interpretation of the ordinance and enforced this change without first providing notice. Defendants filed a motion in limine, seeking to introduce extrinsic evidence of their prior communications with the City to prove that the City’s present interpretation of the ordinance was different from its earlier interpretation. Defendants claimed that the City had previously reached an agreement with the Clubs and their attorney on the scope and reach of the ordinance. Specifically, Defendants alleged that the City led them to believe that touching was permitted between patrons and employees as long as: (1) Defendants were not dancing during the touching, (2) the patrons did not touch Defendants’ genitalia, and (3) Defendants and the patrons remained standing or sitting on opposite sides of a partition. The court denied the motion, after which Defendants pleaded no contest and then appealed.

¶4 On de novo review, Defendants renewed their motions in limine. To preserve their due process challenge for further review, Defendants proffered testimony from both the Clubs’ and the City’s former attorneys, who had negotiated regarding the drafting, interpretation, and enforcement of the ordinance. Defendants also proffered the testimony of two police officers who had previously observed Defendants’ work and had informed Defendants, through their employers, that they were in compliance with the ordinance. The trial court refused to admit this evidence, rejecting Defendants’ argument that their due process rights were violated when the City applied the new interpretation of the ordinance to them without notice. Defendants appeal.

ISSUE AND STANDARD OF REVIEW

¶ 5 Defendants argue that the trial court erred when it found the ordinance constitutional as applied. The constitutionality of an ordinance is a question of law, that we review for correctness, giving no deference to the trial court’s determination. See Greenwood v. North Salt Lake City, 817 P.2d 816, 818 (Utah 1991).

ANALYSIS

A. Jurisdiction

¶ 6 As a threshold matter, we first address our limited jurisdiction over criminal appeals originating in justice court. “Utah case law clearly provides that neither this court nor the Utah Supreme Court has jurisdiction to hear an appeal from proceedings in the district court held pursuant to an appeal from the justice court unless the issues raised in the justice court ‘involve[ ] the validity or constitutionality of an ordinance or statute.’” State v. Hinson, 966 P.2d 273, 276 (Utah Ct.App.1998) (alteration in original) (quoting State v. Matus, 789 P.2d 304, 305 (Utah Ct.App.1990) (per curiam)). Utah Code Annotated § 78-5-120(7) (Supp 2002) grants this court jurisdiction over appeals from justice court when “the district court rules on the constitutionality of a statute or ordinance.”

¶ 7 At trial, Defendants explicitly attacked the constitutionality of the ordinance. Defendants argued that pursuant to Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), their due process rights were violated when the City altered its interpretation and enforcement of the ordinance without notice. Stated more concisely, Defendants argued that the ordinance was unconstitutional as applied to them. When Defendants proffered evidence to support their claim that the ordinance was unconstitutional as applied to them, the trial court refused to admit the evidence. In excluding the evidence the trial court explicitly found Bouie inapplicable and implicitly found the ordinance constitutional as applied. Because the trial court ruled on the constitutionality of the ordinance, we have jurisdiction over this matter.

B. Due Process

¶ 8 We now turn to the merits of Defendants’ claim that the City violated their due process rights. At trial, Defendants proffered testimony in an attempt to prove that the City had altered its interpretation of the ordinance without providing Defendants notice, but the trial court refused to admit this testimony. In deciding to exclude the evidence, and thereby implicitly acknowledging that the ordinance was constitutional as applied, the trial court relied solely upon Bouie.

¶ 9 In Bouie, several civil rights demonstrators were cited for criminal trespass for participating in a “sit in” demonstration. See id. at 348, 84 S.Ct. at 1699. The demonstrators sat at a segregated lunch counter and waited to be served. See id. at 348, 84 S.Ct. at 1700. The police came and asked the demonstrators to leave. See id. When the demonstrators refused, they were arrested and ultimately convicted of criminal trespass. See id. at 348-49, 84 S.Ct. at 1700.

¶ 10 On appeal, the Supreme Court overturned the convictions, concluding that the South Carolina courts had unconstitutionally expanded the scope of the trespass statute to include remaining at a location after being asked to leave, despite the fact that the statute had never before been so interpreted. See id. at 355-56, 84 S.Ct. at 1703-04. The Court concluded that the sudden change in the interpretation of the law violated the demonstrators’ due process rights. See id. at 355, 84 S.Ct. at 1703.

¶ 11 Here, the trial court distinguished Bouie, finding that Bouie involved only an unforseen judicial interpretation of a statute, rather than an administrative or executive change in the City’s interpretation of its own ordinance. However, after reviewing Bouie and its progeny, we conclude that the trial court’s reading of Bouie is too restrictive.

¶ 12 For example, in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973), a corporation was convicted for violating a statute that prohibited the discharge into navigable waters of “refuse matter of any kind ... other than that flowing from streets and sewers.” Id. at 672, 93 S.Ct. at 1815.. The Army Corps of Engineers had earlier construed the statute to address only the discharge of refuse that “affected navigation” and the corporation had relied upon this interpretation when conducting business. Id. at 673, 93 S.Ct. at 1816. The district court refused to admit evidence regarding the corporation’s reliance upon the Army Corps’' construction of the statute. On appeal, the Supreme Court reversed the conviction and remanded the case with directions that the trial court consider the evidence. Id. at 675, 93 S.Ct. at 1817. The Court stated: “The Corps is the responsible administrative agency under the 1899 Act, and ‘the rulings, interpretations and opinions of the [responsible agency] ..., while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which ... litigants may properly resort for guidance.’ ” Id. at 674, 93 S.Ct. at 1816 (alterations in original) (citation omitted).

¶ 13 Similarly, in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), the defendant arrived at a local courthouse to protest the arrest of several students. Id. at 564-65, 85 S.Ct. at 481. The police advised the defendant that he could protest on the west side of the street, so long as he was 101 feet away from the courthouse. See id. at 571, 85 S.Ct. at 484. The defendant then moved his protest to the specified location, where he was arrested and convicted for demonstrating too close to the courthouse. See id. at 569-70, 85 S.Ct. at 483-84. The Supreme Court reversed his conviction and emphasized that the city’s highest ranking police official, in the presence of both the sheriff and the mayor, was the person who had advised the defendant where he could protest. See id. at 571, 85 S.Ct. at 484. The Court concluded that the defendant was “led to believe that his demonstration on the far side of the street violated no statute,” so it violated due process to prosecute him for the conduct. See id. at 572-73, 85 S.Ct. at 485.

¶ 14 As these cases illustrate, in the instant case, the trial court unnecessarily restricted the scope of Bouie. The core idea expressed in Bouie, as well as the cases that followed, is that fair notice is essential to the constitutional enforcement of a law. See, e.g., Bouie, 378 U.S. at 351, 84 S. Ct at 1701 (“The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.”); Cox, 379 U.S. at 571, 85 S.Ct. at 484 (“[T]o sustain appellant’s later conviction for demonstrating where they told him he could ‘would be to sanction an indefensible sort of entrapment by the State — convicting a citizen for exercising a privilege which the State had clearly told him was available to him.’ ”) (quoting Raley v. Ohio, 360 U.S. 423, 426, 79 S.Ct. 1257, 1260, 3 L.Ed.2d 1344 (1959)). Thus, we conclude that the trial court erred when it found Bouie inapplicable to the case at bar. Defendants proffered evidence of the Clubs’ participation in the drafting and interpretation of the ordinance. Defendants also proffered the testimony of two police officers who previously had observed Defendants perform and who would have testified that Defendants were in compliance with the previous interpretation of the ordinance. Thus, Defendants proffered evidence, which if believed by the trier of fact, would establish that they did not have fair notice of the scope and reach of the ordinance and that their due process rights were violated.

¶ 15 We caution, however, that a determination of whether a citizen’s due process rights have been violated because of lack of fair notice is extremely fact-intensive. Other courts that have addressed the issue have considered, among other things, the rank, title, and position of the person providing advice or legal interpretation; the actual or apparent authority of the person providing advice or legal interpretation; whether the state or its agent actively misled a citizen; and the reasonableness of the citizen’s reliance. See, e.g., Raley, 360 U.S. at 437, 79 S.Ct. at 1266 (noting that the party who provided erroneous advice was “Chairman of the Commission, who clearly appeared to be the agent of the State in a position to give such assurances”); United States v. Gutierrez-Gonzalez, 184 F.3d 1160, 1168-69 (10th Cir.1999) (finding illegal immigrant’s reliance upon statements by INS worker as well as a non-governmental agency employee unreasonable); United States v. Spires, 79 F.3d 464, 466-67 (5th Cir.1996) (noting that task force agent was not an authorized federal government agent); United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir.1994) (noting that “[t]here must be an ‘active misleading’ by the government agent and actual reliance by the defendant” (citation omitted)); United States v. Austin, 915 F.2d 363, 366-67 (8th Cir.1990) (holding that a license to sell firearms does not “transform [pawn shop owners] into government officials, at least for purposes of the entrapment by es-toppel defense”); United States v. Brady, 710 F.Supp. 290, 294-95 (D.Colo.1989) (holding it would violate due process to convict for weapons possession a two-time felon who had been incorrectly told by a judge that he could use a gun for the vocation of hunting and trapping).

¶ 16 Here, the trial court excluded all Defendants’ evidence regarding the City’s alleged change in the interpretation and enforcement of the ordinance and made no factual findings regarding such evidence. Because a determination of whether the Defendants’ due process rights were violated is fact-intensive, without factual findings, we cannot conduct a meaningful review of the trial court’s decision. We therefore remand this case for further proceedings. Upon remand, the trial court should consider all of the evidence necessary to provide a clear picture of the totality of the circumstances surrounding the drafting, interpretation, and previous enforcement of the ordinance. The trial court may consider, among other things, the identity and authority of the person who informed Defendants regarding the scope and reach of the ordinance, the specificity of such information, how such information was transmitted, whether the City notified Defendants of its intent to change its interpretation and enforcement of the ordinance, and the reasonableness of Defendants’ reliance, if any.

CONCLUSIÓN

¶ 17 We reverse and remand, directing the trial court to consider Defendants’ due process claim and to create the factual findings necessary for proper review of this claim.

¶ 18 I CONCUR: GREGORY K. ORME, Judge.

¶ 19 I CONCUR IN THE RESULT: RUSSELL W. BENCH, Judge.

      . South Salt Lake City Code provides as follows: It is unlawful for any sexually oriented business or sexually oriented business employee to:

      C. Allow, offer or agree to any sexually oriented business employee touching or being touched by any patron or customer while performing ... except that any touching by sexually oriented business employees or customers of specified anatomical areas, whether clothed or unclothed, is prohibited at any time.... South Salt Lake City, UT, Ordinances ch. 5.56, § 5.56.240 (1999).

      . Pursuant to Utah Code Ann. § 78-5-120 (Supp. 2002), all matters first heard in justice court are subject to de novo review in the district court. Thus, Defendants did not waive any right to appeal by pleading no contest in justice court. See State v. Hinson, 966 P.2d 273, 276 (Utah Ct.App.1998) (holding defendant did not waive right to appeal to district court when he entered voluntary guilty plea in justice court).

      .In their brief, Defendants frame the issue on appeal as follows: "Have Defendants been denied Due Process of Law, in violation of the Fourteenth Amendment to the United States Constitution, and/or Article I § 7 of the Constitution of Utah, as a result of the Court’s refusal to hear extrinsic evidence of the meaning of the ordinance in question?” Read literally, this assignment of error suggests that the due process violation occurred at the time of trial when Defendants were not allowed to present certain evidence. We conclude that Defendants mean to argue that the City violated their due process rights when it changed its interpretation of the law without providing notice. In directing the trial court to address this later issue, we believe that any concerns Defendants may have about a denial of due process at the trial level will also be resolved.

      . Defendants also claim the ordinance is void for vagueness or for over-breadth in violation of the First Amendment of the United States Constitution and Article I, § 15 of the Utah Constitution. Because we conclude that the trial court should have considered Defendants’ due process argument, we do not address these claims.

      . Defendants cite both the United States and Utah constitutional guarantees of due process in their brief. However, Defendants provide no substantive analysis of their claim under the Utah Constitution. Thus, we do not address Defendants’ claims under the Utah Constitution. See State v. Trane, 2002 UT 97, ¶ 21 n. 2, 456 Utah Adv. Rep. 21.