author: OPALA, V.C.J.

text:
    2003 OK 81
    Regina COLE, Petitioner, v. SILVERADO FOODS, INC., Travelers Insurance Co., and The Workers' Compensation Court, Respondents.
    No. 98,150.
    Supreme Court of Oklahoma.
    Oct. 7, 2003.

      Susan H. Jones, Wilson Jones, P.C., Tulsa, OK, for Petitioner.
    H. Grady Parker, Jr., Looney, Nichols & Johnson, Oklahoma City, OK, for Respondents.

      . Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

   OPALA, V.C.J.

T1 The issue on certiorari is whether the provisions of 85 O.S. Supp.1997 § 43(B), which were enacted during the claim's pen-dency and whose terms shorten from five to three years the period within which unadju-dicated elements of a compensation claim must be pressed for resolution before they stand barred by lapse of time, govern this cage. We answer in the negative.

I.

ANATOMY OF THE LITIGATION

T2 On 22 July 1997 Regina Cole (Cole or employee or claimant) filed two workers' compensation claims, alleging two separate job-related injuries, sustained while she was employed by Silverado Foods. Silverado and its insurance carrier, Travelers Insurance Co. (collectively Silverado or employer), timely filed their answer and tendered a pretrial stipulation on 8 September 1997. Silverado admitted that Cole had suffered an accidental injury for which medical treatment was provided but denied temporary total disability benefits because she had not lost any time at work. Cole took no other steps in the case until four years later when she filed, on 5 October 2001, a request for a hearing to determine permanent partial disability and medical maintenance. Cole's claim was scheduled for a hearing on 14 March 2002.

T3 Silverado invoked the provisions of 85 0.8. Supp.1997 § 43(B) -the after-enacted legislation that shortens the time span for a request to adjudicate the unrecovered elements of a pending workers' compensation claim-and moved for dismissal. The motion met with denial, and Cole was awarded permanent partial disability but no medical maintenance. On Silverado's appeal, a three-judge panel ruled the claim was time-barred by the amended provisions invoked by the employer and denied Cole's claim. Cole sought review. The Court of Civil Appeals (COCA), Division IV, vacated the panel's order. It declared the after-enacted § 48(B) provisions do not apply to a proceeding filed prior to the effective date of the amendment and remanded the claim to the three-judge panel with directions to reinstate the trial judge's award. Silverado's certiorari paperwork brings to our attention a published opinion by another COCA division, Cunningham v. Oklahoma Dept. of Corrections, which holds the § 48(B) amendment governs a claim's disposition when enacted during its viable period of pendency. We granted cer-tiorari to settle this interdivisional conflict and to provide guidance by a precedential pronouncement.

IH.

THE PARTIES' RESPECTIVE POSITIONS ON CERTIORARI

T4 When Cole's compensation claim was filed on 22 July 1997, the statutory law then in effect, 85 0.8. Supp.1994 § 48(B), allowed a claimant five (G)years after filing a claim to request a hearing for its complete adjudication. Section 48(B) was amended, effective 1 November 1997, by a text that shortened the request-time span to three (8) years. Cole's claim was pending when the amended provision took effect. The 1997 amendment is silent with respect to its effect upon filed claims whose adjudicatory periods have not yet lapsed. Simply stated, the question before us is which request-time limit governs Cole's claim? If the pre-1997 § 48(B) statute is applicable to today's controversy, Cole's claim must be allowed to survive. Under the amended version of 1997, the unadjudicated elements of Cole's claim stand extinguished for her failure to press for adjudication of unrecovered benefits within the statutory three-year period.

T 5 Silverado relies upon Cunningham, the COCA, Division I, decision, which holds the amended terms of § 48(B) are applicable to a claim pending and unextinguished at the time of the amendatory enactment's effective date. Cunningham teaches a workers' compensation "claimant has no vested right" in a five-year period during which a hearing may be requested so long as at the effective date at which the period is shortened the claim is not extinguished by the lapse of the shortened period. Silverado also urges the 1997 version of § 48(B) impacts solely matters of procedure and does not affect any substantive rights Because it affects solely the employee's remedy and not her rights, it may be given retrospective application.

T6 Cole urges first that § 48(B) is not a statute of limitations but rather one of repose. -It is not subject to retroactive application of amendatory enactments. She also asserts the statute affects more than mere matters of procedure. Once a claim is filed, she contends, the claimant's rights are established. Any change in the law affecting those rights must be regarded as substantive in nature and protected from legislative interference by the provisions of Art. 5 § 54, Ok1. Const. Because § 48(B) impacts a claimant's right, and not just her remedy, it is solely prospective in its application. According to Cole, the amended version of § 48(B) may have no impact on this controversy.

IIL

SECTION 483(B) OPERATES ON FIXED RIGHTS AND OBLIGATIONS. THE PROVISIONS OF ART. 5 $ 54, OKL. CONST., AND EXTANT JURISPRUDENCE SHIELD AN EMPLOYEE'S SUBSTANTIVE RIGHT FROM EX-TINGUISHMENT BY AFTER-ENACTED LEGISLATION.

T7 The right of an employee to compensation arises from the contractual relation between the employee and employer on the date of injury. The statute then in effect forms a portion of the contract of employment and determines the substantive rights and obligations of the parties. No subsequent amendment that has the effect of increasing or diminishing the amount of compensation recoverable can operate retrospectively to affect any accrued rights and fixed obligations.

18 Oklahoma's fundamental law and extant jurisprudence provide a comprehensive scheme that governs the application of repealed and amended legislation to existing legal claims. To clarify legal terms of art which, over time, have become clouded, we turn first to an examination of jurisprudential teachings that deal with the impact of after-enacted changes. Absent a plain legislative intent to the contrary, statutes are generally presumed to operate prospectively only. Legislation that is general in its terms and impacts only matters of procedure is presumed to be applicable to all actions, even those that are pending. Statutes that relate solely to remedies and hence affect only modes of procedure-i.e, enactments which do not create, enlarge, diminish, or destroy accrued or contractual rights-are generally held to operate retroactively and apply to pending proceedings (unless their operation would affect substantive rights).

19 Statutes of limitations are viewed as procedural rather than of substantive-law nature. They affect the claim's remedy and not the right itself. No rights vest in their length until a claim comes to be barred by a statute which governs it. Insofar as a statute of limitations does affect causes of action in existence when it becomes effective, in the absence of a contrary provision, the statute begins to affect rights in existence when the cause of action is first subjected to its operation.

110 Not every statutorily-enacted time limit constitutes a statute of limitations. Although at first blush § 48(B) appears to bear some characteristics of limitations, it does not qualify for inclusion in that rubric. A salient distinction between limitations and other time-anchored restrictions is that the former operate exclusively on the time to bring an action. In contrast, today's temporal restriction operates on unrecovered elements of a pending claim. It fashions a liability-defeating defense against recovery of unadjudicated benefits. Defenses against a claim create accrued rights.

T11 The dispositive question to be answered here is whether the 1997 amendment represents more than a mere procedural reform-one that intrudes upon claimant's substantive rights. If so, it must be given purely prospective application and may have no effect upon this claim. Our analysis of this query compels us to conclude that § 48(B) indeed operates to impact the rights in Cole's claim. We hence hold that the amended provisions of § 48(B) may not be invoked as a defense against this controversy.

{12 Section 48(B) is much more than a remedial enactment. By the lapse of the § 43(B) time interval claimant is not merely deprived of a remedy but rather suffers the loss of right to press for unrecovered benefits. This is so because the after-enacted provi-gions of § 48(B) diminish an employee's right to unadjudicated elements of a claim which constitute a portion of statutorily "recoverable compensation." The employer, on the other hand, may invoke the very same time lapse to defeat its own statutory Hability for unadjudicated benefits. This distinction alone serves to demonstrate that § 48(B) is mot a statute of limitations but has a substantive-law impact that makes its time limit a right-destroying device or a defeating defense against the unrecovered residue of the claim. In its wake the claimant's loss is final and irretrievable. No other remedy will lie for the recapture of a claim's residue extinguished by the operation § 48(B).

118 Section 48(B) stands as an employer's liability-defeating defense against an employee's untimely quest for permanent disability's adjudication. A statutory defense constitutes an acerued right. To modify one's defense against a claim changes its character and potency. That change decreases here the time period from five to three years during which an employer may extinguish its liability. Retroactive application of § 48(B) would make the employer's defense much more extensive than it stood at the time the claim was brought. The amendment also affects the merits of Cole's claim. She would have to confront a different defense. Because the amendment refashions § 48(B) into a different and more extensive liability-defeating mechanism, it destroys the claimant's right to present her claim free from being subjected to new and more extensive instruments of destruction. Inasmuch as the amended version of § 48(B) operates here on rights in existence, its terms are subject solely to prospective application.

T 14 We now turn to examine the State's fundamental law's impact upon today's controversy. The terms of Art. 5 § 54, OK. Const., protect from legislative extinguishment by retroactive enactments "accrued" rights acquired or "proceedings begun" under a repealed or amended statute. The latter-quoted term refers to "essential steps or measures to invoke, establish or vindicate a right. Because the timely filing of a workers' compensation claim undoubtedly establishes an initial step within the meaning of "proceedings begun" in Art. 5 § 54, the terms of the statute in effect at the time the claim is filed are constitutionally shielded from invasion by after-enacted legislation.

1 15 After-enacted legislation that increases or diminishes the amount of recoverable compensation or alters the elements of the claim or defense by imposition of new conditions affects the parties' substantive rights and liabilities. Retroactive application of the amended § 48(B) provisions would materially abridge an employee's right to press for unrecovered elements of a claim. Because these elements comprise a part of recoverable compensation, they constitute matured rights. They are hence not subject to change by after-enacted legislation. The statute in effect at the claim's filing, which affects the parties' substantive rights and Habilities, is shielded from amendatory change by the terms of Art. 5 § 54, Ok. Const. Cunningham must henee be, and henee is, overruled as an incorrect exposition of Oklahoma law.

IV.

SUMMARY

16 Today's controversy is over whether the provisions of 85 0.8. Supp.1997 § 48(B), the after-enacted legislation that shortens the time within which a request must be made to adjudicate unrecovered elements of a pending compensation proceeding, apply to this claim. The terms of Art. 5 § 54, OK. Const., protect matured rights from the ef-feets of after-enacted legislative change. The filing of a workers' compensation claim stands postured in the status of "proceedings begun" in accordance with Art. 5 § 54. The statute in effect at the time of the filing governs the claim's substantive law. It is unaffected by the impact of amendatory modification. Although § 48(B) appears to bear some characteristics of a statute of limitations, it does not qualify for inclusion in that legal rubric. It determines substantive rights and liabilities of the parties which attach after the claim's filing. After-enacted legislative amendments that affect the amount of recoverable benefits cannot operate retrospectively. Application of the amended § 48(B) would diminish the amount of compensation an employee may recover and would subject a claim to a Hability-de-feating defense that is more potent than that which was in effect when the claim was filed. The terms of 85 0.8. Supp.1997 § 48(B) (now 85 0.8.2001 § 48(B)), which operate on substantive rights, are hence not subject to retroactive application.

T17 On certiorari previously granted, the Court of Civil Appeals' opinion and the three-judge panel's order are vacated. The trial judge's award is sustained.

1 18 HODGES, LAVENDER, HARGRAVE, SUMMERS and BOUDREAU, JJ., concur.

T 19 WATT, C.J. and KAUGER, J., concur in result.

20 WINCHESTER, J., dissents.

      . The record shows that Cole filed, on 20 December 2001, a second Form 9, her request for a hearing upon permanent partial disability and medical maintenance. The trial transcript shows Cole received medical treatment but no temporary disability benefits.

      . The terms of 85 O.S. Supp.1997 § 43(B) provide:
      "B. When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within three (3) years from the date of filing thereof or within three (3) years from the date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under the Workers' Compensation Act and shall be dismissed by the Court for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder. * * *"

      . Cunningham v. Oklahoma Dept. of Corrections, 2002 OK CIV APP 119, 60 P.3d 527.

      . Cole's two claims had been consolidated for hearing by the trial tribunal's 21 November 1997 order.

      . The test of 85 O.S. Supp.1994 § 43(B) provides:
      "B. When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within five (5) years from the date of filing thereof or within five (5) years from the date of last payment of compensation or wages in Hieu thereof, same shall be barred as the basis of any claim for compensation under the Workers' Compensation Act and shall be dismissed by the Court for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder. * * *"

      . For the terms of 85 O.S. Supp.1997 § 43(B) see supra note 3.
      Because Cole was injured shortly before the amended § 43(B) provisions became effective, she had almost the full three-year period to request adjudication of permanent partial disability. She sought final determination a little over a year after the three-year period expired and approximately nine months before the five-year period would have lapsed.

      . Cunningham, supra note 4, at 111, at 528.

      . In Cunningham, COCA, Division I, perceived it was dealing with neither an amendment that increases or diminishes compensation nor any right to compensation based on the employment relationship. Rather it regarded the issue as purely procedural. It applied the reasoning employed in Marley Cooling Tower Co. v. Cooper, 1991 OK 62, 814 P.2d 472, which dealt with a statutory amendment that extended the time to file a claim prior to expiration of the limitations period in existence at the time of the injury. Marley teaches that a "defendant does not have a vested right in a limitations period" until the statute actually bars the claim. (Citing Trinity, infra note 10, at 18, at 1366.) Thus when the time to file a claim has not expired at the time of the enactment of a new limitations period, a claimant has, at minimum, the new limitations period from the effective date of the amended law. COCA applied Marley's reasoning and ruled that "a claimant has no vested right to a five-year period to request a hearing" so long as when the period is shortened the claim is not extinguished by the shortened period.

      . Silverado cites Trinity Broadcasting Corp. v. Leeco Oil Co., 1984 OK 80, 16, 692 P.2d 1364, 1366, for the proposition that statutes affecting solely procedure (as distinguished from those that impact substantive rights) may be applied retroactively.

      . The text of Art. 5 § 54, OKI. Const., provides:
      ''The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute."

      . Trinity, supra note 10, at 16, at 1366.

      . Magnolia Petroleum Co. v. Watkins, 1936 OK 372, 114, 57 P.2d 622, 625-26, 177 Okl. 30. Magnolia teaches the State Industrial Commission (now Workers' Compensation Court) is not barred from re-opening a claim (based upon an employee's assertion of change in condition) by after-enacted legislation that limits the time for invoking this remedy.

      . Magnolia, supra note 13, at 15, at 623.

      . Magnolia, supra note 13, at 15, at 623; Knott v. Halliburton Services, 1988 OK 29, 14, 752 P.2d 812, 813-14. In Knott we refused to apply retroactively an amendment that would have taken away the element of tolling time on claims for injuries that occurred prior to the amendatory change.

      . Trinity, supra note 10, at 1 6, at 1366; Thomas v. Cumberland Operating Co., 1977 OK 164, §4, 569 P.2d 974, 976.

      . Thomas, supra note 16, at 1 4, at 976.

      . Thomas, supra note 16, at 14, at 976; Knott, supra note 15, at 1 4, at 813-14 (citing Magnolia, supra note 13, at 1 5, at 623).

      . A statute of limitations establishes a time limit for bringing a civil action, based on the date when the pressed claim accrued. See infra note 23 for an explanation of statutes of limitations.

      . Trinity, supra note 10, at 1 8, at 1366-67.

      . Trinity, supra note 10, at 18, at 1366-67 (citing Mires v. Hogan, 1920 OK 308, 19, 192 P. 811, 818, 79 Ok. 233); Marley, supra note 9, at T8, at 475.

      . Trinity, supra note 10, at 18, at 1366 (citing Magnolia, supra note 13, at 15, at 623); Marley, supra note 9, at 11 9, at 475.

      . While I joined the court's opinions in White v. Weyerhaeuser Co., 1990 OK 98, 798 P.2d 623, and Matter of Hendricks, 1991 OK 52, 812 P.2d 1361, and concurred in part in Ellington v. Horwitz Enterprises, 2003 OK 37, 68 P.3d 983, I am not unmindful that the court at times inadvertently referred to the statutory language we deal with here, that in § 43(B), as a "statute of limitations" or "limitations period."
      The common-law system recognizes two time bars that are conceptually distinct (1) the "'pure" or "true" statute of limitations that measures the time within which an action must be brought, and (2) a time limit that conditions the exercise of a right, which extinguishes the right as well as the remedy. When a pure statute of limitations expires, merely the remedy is extinguished. Lapse of time prescribed by the other category-that which so specifically attaches to the substantive claim that it must be construed as its element or condition upon the right-operates to extinguish the right as well as the remedy. It may also transfer an interest lost by time lapse. The latter time bars do not just destroy the claim but may also confer a new right on one who invokes the benefit of the lapse. The second category of temporal limits comes to us from the Roman-law doctrine of prescription, while the first category developed from the common-law's right/remedy dichotomy. It is this dichotomy that accounts for the difference between these two time-lapse categories. Estate of Speake, 1987 OK 61, 1112-14, 743 P.2d 648, 652-53. Employee's assertion that § 43(B) is a statute of repose is erroneous. A statute of repose bars a suit a fixed number of years after the defendant acts in some manner (generally in the design or manufacture of a product), even if the repose period ends before a plaintiff suffers injury. Although statutes of repose and statutes of limitations bear some similarities to one another, each also possesses distinct characteristics While both are designed to provide repose for a defendant, a statute of limitations places a limit on a plaintiff's time to bring an action. After the prescribed time period has lapsed, a statute of limitations extinguishes the remedy for the redress of an accrued cause of action. This is not so with a statute of repose. The latter bars potential liability by limiting the time during which a cause of action may arise. It serves to bar a claim even before it accrues. A statute of limitations will punish those who sleep on their rights, while a statute of repose will bar recovery, despite a plaintiff's diligent efforts to assert the claim. Smith v. Westinghouse Elec. Corp., 1987 OK 3, 16, n. 11, 732 P.2d 466, 468-69, n. 11; See also Brack's Law Dictionary, 1423 (7th ed.1999).

      . An accrued right is a right that is ripe for enforcement; a matured right. In re Bomgardner, 1985 OK 59, ¶ 11 n. 22, 711 P.2d 92, 96 n. 22; Mid-Continent Casualty Co. v. P & H Supply, Inc., 1971 OK 135, ¶ 16, 490 P.2d 1358, 1361; Barry v. Board of County Commissioners, 1935 OK 701, 17, 49 P.2d 548, 549, 173 Okl. 645, syl. 3.

      . Magnolia, supra note 13, at T5, at 623.

      . Supra note 24.

      . Merits are the elements or grounds of a claim or defense. Brack's Law Dictionary, 1003 (7th ed.1999).

      . For the complete text of Art. 5 § 54, OK. Const., see supra note 11.

      . First Nat. Bank of Pauls Valley v. Crudup, 1982 OK 132, 15, 656 P.2d 914, 916.

      . Today's decision-that the filing of a workers' compensation claim falls within the Art. 5 § 54 definition of "proceedings begun" -is consistent with our holding in Crudup, supra note 29. There we declared that a filed lien statement constitutes an accrued right within the meaning of the term "proceedings begun."

      . Knott, supra note 15, at 15, at 813-14; Magnolia, supra note 13, at I 5, at 623.

      . We note that our recent decision in Ellington, supra note 23, in no way conflicts with today's holding. Ellington dealt with the question of what constitutes a good faith request for a hearing and final determination of a workers' compensation claim in accordance with the terms of 85 O.S. Supp.1997 § 43(B). There the amended three-year restriction was not challenged as unreasonably short. We hence applied the 1997 amended version of § 43(B) in answer to the query posed. Ellington, at "I 8, at 985.


source: Caselaw Access Project

author: JOHNSON, Presiding Judge:

license: Public Domain

text:
    2003 OK CR 20
    Gary Boyd FENIMORE, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-2002-1512.
    Court of Criminal Appeals of Oklahoma.
    Sept. 30, 2003.

      Charles L. Sifers, Oklahoma City, OK, attorney for defendant at trial.
    Cindy Troung, Asst. District Attorney, Oklahoma City, OK, attorney for the state at trial.
    Charles L. Sifers, Andrea Digilio Miller, Oklahoma City, OK, attorneys for appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Patrick Crawley, Assistant Attorney General, Oklahoma City, OK, attorneys for state on appeal.
   SUMMARY OPINION

JOHNSON, Presiding Judge:

€1 Appellant, Gary Boyd Fenimore, was convicted in Oklzshoma County District Court, Case No. CF 2001-5650, of Driving Under the Influence, in violation of 47 O.S. 2001, § 11-902 (Count 1), of with Driving While Privilege Revoked, in violation of 47 ©.98.2001, § 6-308(B) (Count 2). A bench trial was held before the Honorable Ray C. Elliott, District Judge, on October 21, 2002. Judge Elliott found Appellant guilty of both Counts and set punishment at two (2) years imprisonment on Count 1 and at one (1) years imprisonment on Count 2. Judgment and Sentence was imposed on December 11, 2002, and Judge Elliott ordered the sentences to be served concurrently. From the Judgment and Sentences imposed, Appellant perfected this appeal.

[ 2 Appellant raises a single proposition of error:

Because Mr. Fenimore was on private property at the time he was stopped, and had only been observed driving on private property, no crime was committed and therefore, Mr. Fenimore's conviction must be reversed with instructions to dismiss.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, briefs and exhibits of the parties, we have determined that Appellant's proposition has merit for the reasons set forth below.

18 The trial court should have sustained Appellant's motion to quash and demurrer, as the State's evidence did not prove Appellant committed an act which constituted a public offense. 22 0.8.2001, § 504(4). The stipulated evidence in this case does not establish that Appellant's driving under the influence or that his driving while privilege revoked occurred either on a highway, turnpike or public parking lot. Houston v. State, 1980 OK CR 63, ¶4, 615 P.2d 305, 306; 47 O.S.2001, §§ 11-101(A)(2), 11-902; 6-303.

I 4 There are persuasive public safety/public policy reasons to hold differently. The operation of a motor vehicle while under the influence of alcohol is an act which is dangerous to the public wherever it may occur-whether in a trailer park, a parking lot, or in the privately-maintained gated subdivisions across the metropolitan areas. However, until the Oklahoma legislature more broadly defines those areas where driving under the influence is prohibited or until it does not restrict the act of driving under the influence to certain areas, this Court cannot sustain a conviction under the facts of this case where the State did not prove Appellant drove his car while under the influence on a highway, turnpike or public parking lot.

T5 Rules of statutory construction require criminal statutes be constructed strictly against the State and liberally in favor of the accused. State v. Young, 1999 OK CR 14, ¶ 13, 989 P.2d 949, 952. Further, Courts will not enlarge the meaning of words included in the statute to create a erime not defined by that statute. Id. at ¶ 27, 989 P.2d at 955. The statute defining the offense of driving under the influence, 47 O.S.2001, § 11-902 does not extend the applicability of that statute beyond highways, turnpikes, or public parking lots. See also Houston, 1980 OK CR 63, ¶¶ 3-4, 615 P.2d at 306 (interpreted public parking lots to include any parking lot adjacent to a right-of-way, or to which the general public has access).

T6 In an excellent article relative to the applicability of drunk driving statutes to specific locations, the author notes that a number of States have broader, less restrictive, statutes than the Oklahoma statute. Okasin-ski, Applicability, to Operation of Motor Vehicle on Private Property, of Legislation Making Drunken Driving a Criminal Offense, 52 ALR 5th 655 (1997). These broader statutes make the act of driving while intoxicated a criminal offense while on private roadways and on other private properties. 52 ALR 5th 655 at 689.

T7 If the language of Oklahoma's driving under the influence statute needs to be amended-whether by broadening the language or by making it an all inclusive statute to prohibit driving under the influence anywhere in the State, it must be done by the Oklahoma Legislature. The growing number of trailer parks, apartment complexes, gated communities and similar private property locations have created a public safety question whether these areas should be included in a broad statute for the protection of the public. We defer to the legislature to answer that question.

T8 In this case, Appellant was allegedly drunk driving on a road in a trailer park which was privately owned and not publicly maintained. He was not observed driving outside of the trailer park. The State did not present any evidence showing the streets of the privately owned trailer park were open to the public or were adjacent to the public roadway. Under the facts presented here, we are unable to sustain Appellant's convietion because the State did not prove he was driving on a highway, turnpike, or public parking lot. Accordingly, we find Appellant's convictions for felony Driving Under the Influence and Driving While Privilege Revoked should be reversed and remanded to the District Court of Oklahoma County with instructions to dismiss.

DECISION

The Judgment and Sentences imposed in Oklahoma County District Court, Case No. CF 2001-5650, are hereby REVERSED AND REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO DISMISS.

LILE, V.P.J., LUMPKIN, J., CHAPEL, J., and STRUBHAR, J., concur.

      . Other states have more broadly defined prohibitions against drunk driving. Some jurisdictions have general legislation, without geographical restrictions, which prohibit drunk driving without restricting or describing where the offense must be committed. See eg. Alaska Stat. § 28.35.030 (2002); Ariz.Rev.Stat. §§ 28-621, 28-1302, 28-1381 (2003); Ark.Code Ann. § 5-65-103(a)(Michie 2002); Cal. Veh.Code § 23152 (West 2003); Colo.Rev.Stat. § 42-4-1301 (2003); Fla. Stat. Ann. § 316.193(1)(a)(West 2003); Ga. Code Ann. § 40-6-391 (West 2003); Indiana Code Ann. § 9-30-5-2 (Burns 2003 Supp.); Ohio Rev.Code Ann. § 4511.19(A)(1)(Banks-Baldwin 2003). Other jurisdictions have broadened their drunk driving statutes by defining areas where drunk driving is prohibited to include private property-which is open to the public, see eg. Idaho Code § 18-8004 (2003) and Ohio Rev. Code Ann. § 4511.19 (Banks-Baldwin 2003), and trailer parks, see Tenn.Code Ann. § 55-10-401(a).


author: JOHNSON, Presiding Judge: /s/ Steve Lile STEVE LILE, Vice Presiding Judge /s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge /s/ Charles S. Chapel CHARLES S. CHAPEL, Judge /s/ Reta M. Strubhar RETA M. STRUBHAR, Judge

text:
    2003 OK CR 21
    Darin McKevin PITTS, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-2003-540.
    Court of Criminal Appeals of Oklahoma.
    Oct. 10, 2003.
   ORDER DISMISSING APPELLATE PROCEEDING

JOHNSON, Presiding Judge:

T1 At issue before this Court is whether Appellant's trial counsel timely filed in the trial court a Notice of Intent to Appeal and Designation of Record. We hold that he did not timely file these jurisdictional documents. For this reason, this appellate proceeding must be dismissed.

I. Procedural History and Commencement of Time for Perfecting Appeal

T2 This proceeding was initiated in this Court on May 20, 2008, by the filing of a copy of the Notice of Intent to Appeal and Designation of Record (hereinafter "Notice and Designation") that Appellant had filed in the District Court of Bryan County, Case No. CF-97-272. On July 11, 2003, a Petition in Error was filed herein by Appellant's appointed appellate counsel, Lizbeth L. McCarty of the Oklahoma Indigent Defense System (OIDS). It is through these pleadings that Appellant seeks to appeal a revocation order imposed in the District Court on May 7, 2008, by the Honorable Farrell M. Hatch, District Judge.

3 On May 30, 2008, OIDS counsel filed a motion asking this Court to dismiss this pending appellate proceeding on the ground that Appellant's trial counsel had not filed the required Notice and Designation within the ten-day time period required by law. Because these jurisdictional documents were not filed within ten days after imposition of the revocation order, OIDS counsel reasoned that her agency was precluded, by 22 O.S. 2001, § 1368, from proceeding with Appellant's proposed appeal.

14 In a regular direct appeal from a conviction, a defendant's time limitation for commencing an appeal begins from the date of pronouncement of Judgment and Sentence. Appellate review of an order revoking a suspended sentence follows the same procedure as that for perfecting a regular misdemeanor or felony appeal. Provided, however, that in a revocation appeal, for the purpose of calculating the date that the appellate time period will commence, the date of the trial court's imposition of the order of revocation substitutes for references within our Rules to the date of Judgment and Sentence. Consequently, in Appellant's matter, his Notice and Designation were required to be filed within ten days from the date the District Court pronounced its decision to revoke.

T5 In Appellant's case it was not until Tuesday, May 20, 20083, that Appellant filed with the trial court clerk his Notice and Designation. This filing occurred more than ten calendar days after the Wednesday, May Tth, imposition of the order of revocation. Thus, unless something other than calendar days are counted in calculating the ten-day filing deadline, Appellant's attempted appeal was not timely initiated and must be dismissed.

IL Inapplicability of the Oklahoma Pleading Code in Calculating the Ten-Day Filing Period

16 After filing her Motion to Dismiss this proceeding, OIDS counsel, on June 2, 2003, moved to withdraw her Motion. Her request to withdraw was based upon the perceived applicability of 12 0.8.2001, § 2006(A), to the calculation of the ten-day time period for defendants to file their Notice and Designation.

1 7 Section 2006(A) states:

In computing any period of time pre-seribed or allowed by this title, by the rules of any court of this state, or by order of a court of this state, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a legal holiday as defined by Section 82.1 of Title 25 of the Oklahoma Statutes or any other day when the office of the court clerk does not remain open for public business until the regularly scheduled closing time, in which event the period runs until the end of the next day which is not a legal holiday or a day when the office of the court clerk does not remain open for public business until the regularly scheduled closing time. Except for the times provided in Sections 765, 990.3, 1148.4, 1148.5, 1148.5A, and 1756 of this title, when the period of time prescribed or allowed is less than eleven (11) days, intermediate legal holidays and any other day when the office of the court clerk does not remain open for public business until the regularly scheduled closing time, shall be excluded from the computation.

12 0.9.2001, § 2006(A).

T8 Appellant's Notice and Designation filed on Tuesday, May 20th, would seem to be timely if Section 2006(A) is construed to be applicable to Appellant's ten-day filing deadline for his Notice and Designation. We do not, however, find Section 2006(A) is a statute that pertains to criminal cases. Our reason for this finding is because Section 2006(A) is a part of the Oklahoma Pleading Code.

T9 The Oklahoma Pleading Code, by its own terms, is not intended to be applicable to criminal cases. Section 2001 of the Code states: "The Oklahoma Pleading Code governs the procedure in the district courts of Oklahoma in all suits of a civil nature whether cognizable as cases at law or in equity except where a statute specifies a different procedure." 12 0.98.2001, § 2001. Because Section 2001 explicitly limits the Code's provisions to suits of a civil nature, "except where a statute specifies a different procedure," Section 2006(A) of the Code cannot operate to make Appellant's Notice and Designation timely.

III. Trial Counsel's "Response to Motion to Dismiss"

T10 In so finding, we do not ignore the "Response to Motion to Dismiss" that was filed by Appellant's trial counsel on August 13, 2008. Within this Response, trial counsel asserts that he relied upon Section 2006(A) in calculating the filing deadline for Appellant's Notice and Designation, and that Appellant's Notice and Designation are made timely by this statute. Trial counsel argues that "[t]he plain language of this statute, stating that it applies to 'the rules of any court of this state," would appear to extend to this Court's rules as well as the rules of any other Oklahoma court." (Response at 3.)

T 11 Trial counsel bolsters his argument by noting that this Court, in State v. Pratt, 1991 OK CR 95, 816 P.2d 1149, applied a portion of Section 2006 to permit an appeal by the State to proceed, when the State did not file its Notice of Intent to Appeal in a timely fashion. Trial counsel further cites this Court to its decision in Morgan v. District Court of Woodward County, 1992 OK CR 29, 831 P.2d 1001, a matter concerning sanctions in a criminal case for discovery violations, wherein this Court made reference to a provision within the Oklahoma Pleading Code.

A. Morgan v. District Court of Woodward County

112 We first address the Morgan decision. In Morgan, an attorney failed to operate in good faith during discovery in a criminal case. This Court noted that 12 0.8. 1991, § 2011, of the Oklahoma Pleading Code establishes "that the signature of an attorney on a pleading, motion, or other paper, places the primary responsibility for good faith upon the attorney." Morgan, "10, 881 P.2d at 1005. Because of the limitation to civil cases placed upon the Oklahoma Pleading Code by Section 2001, Section 2011 is technically inapplicable to criminal cases. Nevertheless, in any proceedings before tribunals of this state, there is a general obligation upon attorneys to operate in good faith, whether through their pleadings or otherwise. The Court's mention in Morgan of a good faith provision within the Oklahoma Pleading Code was made only in passing and was not required for the disposition reached in that matter. There is, therefore, no need to overrule Morgan or further clarify its holding.

B. State v. Pratt

113 On the other hand, we do find that a portion of State v. Pratt must be specifically overruled. In Pratt, the State sought to appeal a final judgment that declared a state statute unconstitutional. The State, however, filed its Notice of Intent to Appeal after its ten-day time limit for doing so had lapsed. Because a final judgment declaring an act by the State Legislature unconstitutional was, by law, to be automatically appealed, the Court found it must let the State's appeal proceed.

14 As further justification for letting the State proceed with its appeal, the Court in Pratt agreed with an alternate argument made by the State. The State's alternate theory was that 12 0.S8.Supp.1985, § 2006(B), of the Oklahoma Pleading Code permitted this Court to enlarge the time for the State's filing of its Notice of Intent to Appeal, if under Section 2006(B), the State could show "excusable neglect." We now find that the Court was incorrect to agree with this alternate theory. In addition to the fact that Section 2001 of the Pleading Code made Seetion 2006(B) inapplicable to eriminal cases, a closer reading of Section 2006(B) reveals that its "excusable neglect" provision could not operate to extend deadlines for perfecting an appeal. Consequently, we now find that the portion of Pratt that relied upon 12 O.8.Supp.1985, § 2006(B), of the Oklahoma Pleading Code must be, and hereby is, overruled.

IV. Decision

1 15 Because Appellant's Notice of Intent to Appeal and Designation of Record in this criminal case were not timely filed, the Court FINDS that Appellant's matter must be dismissed.

16 IT IS THEREFORE THE ORDER OF THIS COURT that OIDS counsel's Motion to Dismiss is GRANTED, and Appellant's attempted appeal in the above-styled proceeding from the order of revocation in the District Court of Bryan County, Case No. CF-97-272, is DISMISSED.

117 IT IS THE FURTHER ORDER OF THIS COURT that the Oklahoma Indigent Defense System is hereby relieved from further responsibility of representing Appellant on appeal from the revocation order in CF-97-272, until such time as there has been compliance with 22 0.8.2001, § 1863, and OIDS appointed in the manner provided by law.

1 18 IT IS SO ORDERED.

119 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 10th day of October, 2008.

/s/ Steve Lile STEVE LILE, Vice Presiding Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge

/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge

/s/ Reta M. Strubhar RETA M. STRUBHAR, Judge

      . Within 22 0.S.2001, § 1363, it is made "the responsibility of the trial counsel to file all jurisdictional documents required to be filed in the district court." Section 1363 further provides that OIDS "shall be prohibited from accepting any appeal, unless trial counsel has timely filed all necessary documents or has pursued and been granted the authority for an appeal out of time on the defendant's behalf."

      . 22 0.$.2001, § 1054; Rules 1.4 & 3.1(C), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2003).

      . See Rule 1.2(D)(4) ("Review of an order revoking a suspended sentence is governed by the same procedure as perfection of a regular misdemeanor or felony appeal.").

      . See Rule 1.2(D)(4) ('The appropriate appeal time commences upon imposition of the order revoking suspended sentence.").

      . See Rule 2.1(B) ("An appeal is commenced by the trial counsel's filing with the trial court a written notice of intent to appeal and a designation of record as prescribed in Rule 1.14(C) within ten (10) days from the date the Judgment and Sentence is imposed in open court."); & Rule 2.5(A) ("Within ten (10) days from the date the Judgment and Sentence is imposed in open court or an order grants an appeal out of time, the defendant must file with the trial court clerk a notice of intent to appeal and designation of record in the form prescribed in Rule 1.14(C).").

      . 'The filing of the Notice of Intent to Appeal and Designation of Record in the District Court is jurisdictional and failure to timely file constitutes waiver of the right to appeal." Rules 2.1(B) & 2.5(A).

      . One example of such a statute that "specifies a different procedure," and thereby makes a portion of the Oklahoma Pleading Code applicable to criminal cases, is found at 22 0.$.2001, § 712. Subsection (A) of Section 712 states, "Service of subpoenas for witnesses in criminal actions in the district courts of this state shall be made in the same manner as in civil actions pursuant to Section 2004.1 of Title 12 of the Oklahoma Statutes." Hence Section 2004.1 of the Oklahoma Pleading Code has been relied upon in a criminal case to determine who must bear the cost of video-taping the testimony of a subpoenaed child witness. Young v. Macy, 2001 OK 4, M 11-12, 21 P.3d 44, 47.

      . Recognizing this, OIDS counsel, on July 30, 2003, filed in this case a request to renew her May 30, 2003, Motion to Dismiss.

      . Rule 3.1 of the Rules of Professional Conduct, 5 ©.$.2001, ch. 1 app. 3-A, provides:
      A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
      See also Rule 3.3, Rules of Professional Conduct, 5 0.$.2001, ch. 1 app. 3-A (establishing attorney's duty of candor before tribunals).

      . Pratt, 13-4, 816 P.2d at 1150-51 citing 22 0.$.1981, § 1053.1 (statute requiring automatic appeal of final judgment that declares an act of the State Legislature unconstitutional).

      . In relevant part, Section 2006(B) of the Oklahoma Pleading Code then provided:
      B. ENLARGEMENT. When by this title or by a notice given thereunder by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at anytime in its discretion:

      2. Upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Sections 653, 655, 698, 990, 1031.1, 1032 and 1038 of Title 12 of the Oklahoma Statutes, except to the extent and under the conditions stated in those sections.
      12 O.S.Supp.1985, § 2006(B) (emphasis added).

      . Subsection (2) of 12 O.$.Supp.1985, § 2006(B), listed Section 990 of Title 12 as containing one of the deadlines that could not be extended by reason of excusable neglect. Section 990 fixed the deadline for commencing an appeal within the Oklahoma Supreme Court. 12 ©.S.1981, § 990.


author: KENNETH L. BUETTNER, Judge: ADAMS, Presiding Judge,

text:
    2003 OK CIV APP 87
    Rita Jo WHITMIRE, Plaintiff/Appellant, v. Albert WHITMIRE, Personal Representative of the Estate of Bobby Joe Whitmire, Deceased, Defendant/Appellee.
    No. 97,344.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    June 20, 2003.
    Certiorari Denied Oct. 6, 2003.
    Thomas W. Condit, Fourth Seoufos, Law Offices of Harry Scoufos, P.C., Sallisaw, OK, for Plaintiff/ Appellant.
    Frank Sullivan, III, Michael A. Daffin, Sal-lisaw, OK, for Defendant/Appellee.

      . The caption of this case was amended to this form by Supreme Court order dated October 15, 2002.

   Opinion by

KENNETH L. BUETTNER, Judge:

11 Plaintiff/Appellant Rita Jo Whitmire (Wife) appeals from the decree of divorce and property division. Bobby Joe Whitmire (Husband) died after the court announced in court that the parties were divorced and drafted the property division, but before the filing of the journal entry. Defendant/Appel-lee Albert Whitmire, Personal Representative of the Estate of Bobby Joe Whitmire, Deceased ("Representative"), was substituted as a party after Husband's death. Wife argues that the trial court lost jurisdiction over the matter when Husband died before the divorce decree was filed. Representative asserts that the trial court retained jurisdiction to enter the decree, with Representative substituted as a party, because the divorcee was pronounced before Husband's death. Because Husband died before the entry of the final decree of divorcee, the trial court was without jurisdiction to later enter the final decree divorcing the parties. We therefore vacate the decree.

12 Husband and Wife were married July 15, 1981. No children were born of the marriage. Wife filed a petition for separate maintenance December 8, 1999. Husband filed his answer and counterclaim for divorcee January 21, 2000. Wife filed her amended petition February 26, 2001. Wife added Whitmire Construction, Inc., as a party and sought divorce from Husband.

T3 Trial was held September 7, 2001. Husband and Wife were present at trial along with their attorneys. During the trial, Husband testified that he had been diagnosed with cancer about two years before and that he was no longer receiving treatment for it. At the conclusion of the trial, Husband's counsel informed the court that Husband was terminally ill and asked for a quick resolution to the case. The trial court informed the parties that it had heard enough evidence, but that it remained concerned about the value of the marital home and 99 acres of land attached to the house. The court ordered an appraisal of that property. The court and the parties' counsel discussed the issue of Husband's health and the court stated that it ordered the parties divorced that day, with the division of property reserved until receipt of the appraisal. Counsel for Husband indicated he would prepare a partial decree of divorce, reserving all other issues.

'I 4 Counsel for Husband prepared the partial decree and sent it to counsel for Wife, who took no action. The trial court wrote a letter to the parties' counsel dated October 17, 2001, which contained the trial court's property division order. Husband died October 18, 2001. The property division letter was mailed October 19, 2001, and was filed October 283, 2001.

5 Wife filed her Motion to Dismiss October 24, 2001. Wife argued that a divorce proceeding terminates on the death of either party before the entry of a final decree, and that the trial court's announcement in court that the parties were divoreed did not amount to a final decree of divorcee. Wife also argued there was no required proof presented at trial to support granting a divorce. Hearing on the Motion to Dismiss was held November 5, 2001. Wife restated her argument that when one of the parties dies before the entry of a final decree of divorce, the divorcee action abates. Wife also asserted that since Husband had died, his counsel had no party to represent and that if the court allowed the entry of a decree, Wife would have no person against whom to make an appeal.

T6 Husband's counsel responded that he was prepared to substitute the executor of Husband's estate in place of Husband. He also argued that there had indeed been evidence presented which would support the granting of a divorce. Husband's counsel also argued that Wife's counsel was at fault for failing to agree to the partial decree of divorce before Husband's death. Counsel for Husband noted that the trial court had prepared the letter outlining the property division award the day before Husband died. He argued that the court had granted the divorce and divided the property before Husband's death, so that there was no remaining pending proceeding to abate at the time of Husband's death.

17 The trial court overruled the Motion to Dismiss. Representative was substituted as a party in an order filed November 29, 2001. The decree of divorce was filed January 11, 2002. Wife now appeals. Wife argues first that the trial court lacked jurisdiction to proceed following Husband's death.

T8 It has long been held that when one of the parties to a divorce dies during the proceedings, the trial court loses jurisdiction and the action abates. Swick v. Swick, 1993 OK 151, 864 P.2d 819; Mabry v. Baird, 1950 OK 132, 219 P.2d 234, 208 Okla. 212. The issue is whether a final judgment had been rendered before Husband's death.

T9 Wife asserts that the trial court's oral pronouncement that the parties were divoreed was not a final judgment because it was not filed as a written decree. Wife relies on 12 0.8.2001 § 696.2(D), which states:

The filing with the court clerk of a written judgment, decree or appealable order, prepared in conformance with Section 696.8 of this title and signed by the court, shall be a jurisdictional prerequisite to the commencement of an appeal. The following shall not constitute a judgment, decree or appealable order: A minute entry; verdict; informal statement of the proceedings and relief awarded, including but not limited to, a letter to a party or parties indicating the ruling or instructions for preparing the judgment, decree or appealable order.

The plain language of this subsection appears to support Wife's argument. This court has relied on this section to find that a trial court lost jurisdiction to enter a final decree of divorce after the death of one spouse. In Marzette v. Marzette, 1994 OK CIV APP 88, 882 P.2d 578, the court announced at trial that a divorcee had been granted in an earlier hearing and that the trial was continued for hearing evidence on the property division issues. The husband died a few days later. After the husband's death, the trial court filed a minute order, which was dated with the day the divorce had been pronounced in the earlier hearing. The decree was filed nearly a year later and provided that the divorce had been entered the date it was announced in court. The wife then challenged the trial court's jurisdiction to enter the decree after the husband's death. On appeal, the court explained that until January 1, 1991, a judgment was final for purposes of appeal at the time of the pronouncement by the trial court, under 12 00.98.1981 § 990. Id. at 579. The court noted that 12 ©.8.1991 $ 990A provided that appeal time began to run from the date a judgment or appealable order is filed. Id. In Marzette the court concluded that a decree must be filed to trigger the appeal time and that, accordingly, there was no final, appealable order filed before the husband's death and the trial court lost jurisdiction to enter the decree after the death of a party. Id. at 580.

10 Representative argues however, that 12 0.8.2001 § 696.2(E) requires a different result. That subsection provides, in part:

A judgment, decree or appealable order, whether interlocutory or final, shall not be enforceable in whole or in part unless or until it is signed by the court and filed; except that the adjudication of any issue shall be enforceable when pronounced by the court in the following actions: divoree;.... The time for appeal shall not begin to run until a written judgment, decree or appealable order, prepared in conformance with Section 696.8 of this title, is filed with the court clerk, regardless of whether the judgment, decree, or ap-pealable order is effective when pronounced or when it is filed.

Representative argues that this section conclusively establishes that a divorce is effective at the time it is pronounced by the court rather than when a decree is filed. Historically it has been held that a divorce is rendered at the time it is announced from the bench.

1 11 In Mabry, supra, the court conclusively established that the divorce judgment was rendered and final at the time it was announced from the bench. At the close of trial, the court "rendered judgment granting the plaintiff a divorce and dividing the property" in a minute entry, which indicated that a journal entry would follow and also indicated the matter was continued for determination of attorney fees. Almost a month later, the wife filed a motion to clarify the property division award. Before the hearing on the motion, the husband died. The wife then filed a motion seeking an order that no judgment had been rendered before the husband's death, or an order vacating any judgment entered, based on wife's assertion that the divorcee proceeding abated on the husband's death. The husband's heirs then sought to intervene, which was granted. The trial court issued an order stating that the judgment was rendered on the date of trial. The trial court then set the matter for a later hearing for final settlement. At that hearing, the trial court heard evidence on the property division and attorney fees issues. The trial court found that the minute entry was a final judgment and labeled the later order clarifying the decree an order nune pro tune. The Supreme Court agreed that the trial court had intended to divorcee the parties at the conclusion of trial and stated "(the fact that the judgment was not reduced to writing in a formal journal entry does not render it any less the judgment of the court." Id. at 289. The court also cited an earlier case in which it had declared "(a) judgment is rendered, within the meaning of the law, at the time it is pronounced by the court and is final, valid and enforceable as between the parties from that date, without formal entry. Id. The court agreed with the wife that a divorce action abates on the death of a party "prior to the rendition of a final judgment," but the court reiterated that the court's announcement of the divorce in court was a final judgment and that it was therefore issued before the husband's death, so that the action did not remain to abate. Id. The Supreme Court found error only in the trial court's attempt to change the property division through an order nunc pro tune. The court held that the property division effected in the original minute entry was the only property division which was part of the divorce pronouncement. Id. at 240-241.

112 Chastain v. Posey, 1988 OK 46, 665 P.2d 1179, 1181 (Husband died while motions for new trial pending) and Pellow v. Pellow, 1985 OK 88, 714 P.2d 598 (Husband died during appeal) held that a divorce judgment is rendered at the time it is pronounced. Those cases, however, established an important distinction which is also present in this case. That distinction involves the effectiveness of a divorcee where the appeal challenges the granting of the divorce itself. Title 48 ©.8.2001 $ 127 provides:

Every decree of divorce shall recite the day and date when the judgment was rendered. If an appeal be taken from a judgment granting or denying a divorce, that part of the judgment does not become final and take effect until the appeal is deter-mained. If an appeal be taken from any part of a judgment in a divoree except the granting of the divorce, the divorcee shall be final and take effect from the date the decree of divorcee is rendered, provided neither party thereto may marry another person until six (6) months after the date the decree of divorce is rendered; that part of the judgment appealed shall not become final and take effect until the appeal is determined.

(Emphasis supplied).

113 Whether the holding in Mabry or Marzette is correct, or whether Marzette is affected by the provisions of § 696.2(E), which provides that issues decided in a divoree proceeding are effective from the time they are pronounced, is not relevant to the resolution of this case because Wife has appealed from the granting of the divorce itself. In Chastain, trial was held in August 1980, and the court rendered judgment September 24, 1980. The parties both filed motions for new trial and the husband died while the motions were pending. The wife then sought dismissal, which was denied. On appeal, the wife urged that a judgment is not final when a motion for new trial is pending. The court responded by citing to 12 0.8.1981 § 1282 (now 48 0.9.2001 § 127, supra ) to find that a divorce is final at the time it is rendered unless an appeal is made from the grant or denial of the divoree itself. 665 P.2d at 1181. The court found that the wife had not challenged the granting of the divorce in her motion for new trial or on appeal. Id. The court therefore found that under the plain language of the statute, the divoree was final and took effect the date it was rendered. Id. And, necessarily the court found that a final judgment of divorce had been entered before the husband's death, so that the action did not abate. Id. at 1182.

T14 In Peliow, supra, the parties were granted a divorcee in a minute order dated August 31, 1983 and the parties signed a handwritten property division agreement. Neither party objected to the granting of the divorce at that time. The wife filed her petition in error September 30, 1983, in which she challenged only the property division. The trial court later heard the husband's motion to settle journal entry. Wife later amended her petition in error, but still did not challenge the grant of divorcee. Five months later, wife filed a second amended petition in error which raised as error the granting of a divorcee. Shortly thereafter, the husband died. The wife then sought to challenge the jurisdiction of the court, asserting that the matter abated. The Oklahoma Supreme Court first stated that "(In Okla homa, judgment is rendered when pronounced. The entry of the written memorial upon the court's journal is not essential to the validity of the judgment, and failure to properly file a journal entry of judgment does not render judgment void." 714 P.2d at 595. The court noted that the trial court had made a thorough record of the fact that the divorcee was consensual. Id. at 596. The court also noted the wife herself had eross-petitioned for divorcee. Id. The court concluded that the objection to the granting of the divorce was not an issue presented to the trial court and that it could therefore not be raised in a second amended petition in error. Id. The court concluded that the decision to grant the divoree was final. Id. at 597. The court then addressed the effect of the husband's death on the proceedings. The court quoted the language from § 1282 (now § 127) which provides that when an appeal is made from the grant of divorce, the decision is not final and effective until the appeal is determined. The court held that because it had determined that the wife had not properly raised the issue of the granting of the divorce, that decision was final at the time it was entered in the trial court (before the death of the husband) so that the death of the husband did not serve to abate the action. Id. The court also explained that the death of a party after the final judgment does not abate an appeal of property issues. Id. at 598.

115 These cases make clear that a divorcee is final at the date of rendition where there has not been an appeal from the status determination of divorce. The converse, however, must be that where an appeal from the status determination of divorce has been properly raised, the divorce decree is not final and effective until the appeal is determined, pursuant to 48 0.9.2001 § 127. We note that in this case Wife as plaintiff sought the divorcee. However, Wife raised the issue of the granting of divorce in her Motion to Dismiss filed October 24, 2001, and in her Petition in Error. We find that Wife has properly raised the issue of the granting of the divorce on appeal. Accordingly, the divoree decree would not be final and take effect until the appeal is determined. And, since Husband has died and the appeal has not been determined, then the action must abate on the death of a party before the final judgment. We are cognizant that this decision may unfairly allow surviving spouses simply to raise the issue of the divorcee in order to avoid the effect of divorcee entered before the spouse's death, but before the time for appeal. Nevertheless, the language of § 127, as well as the holdings in Chastain and Pellow, require this result.

116 Added support for this decision is found in Wilks v. Wilks, 1981 OK 91, 682 P.2d 759, in which the court explained the purpose of the dichotomy in § 127. It is necessary that the status determination of divorcee not be final and effective until any appeal from that issue is decided in order to protect the marital status in the event it is reversed. Id. at 762. The status determination of divorcee is therefore subject to an automatic stay pending appeal "lest it be irretrievably lost" by the marriage of one of the parties to another. This analysis also serves to reconcile the conflicting provisions of § 696.2(D) and (E). Issues in divorcee proceedings may be immediately effective and enforceable, but the penultimate issue, the grant or denial of the divorcee itself, is not final and effective until after any appeal of that issue has been determined. In this case, Husband died a) before a final decree of divorcee was filed in the trial court, and b) before the divorcee was final (because of the appeal contesting the status of divorce), and therefore the action abated. The trial court was without jurisdiction to act at the time it entered the final decree of divorce. Accordingly, the divorcee decree must be VACATED.

ADAMS, P.J., dissents with separate opinion; JOPLIN, C.J., coneurs.

ADAMS, Presiding Judge,

dissenting:

T1 As I view this record, this case is materially indistinguishable from Chastain v. Posey, 1983 OK 46, 665 P.2d 1179. In both cases the challenge to the entitlement to a divorce was not raised until after the trial court had made an effective pronouncement of the divorcee and dissolved the marriage. The Legislature has made it clear in 12 § 696.2(E) that "the adjudication of any issue" in a divorce case is "enforceable when pronounced by the court." This provision was not effective at the time the order appealed in Marszette v. Marzette, 1994 OK CIV APP 88, 882 P.2d 578, was issued, and as recognized in that case, its provisions were not considered. I respectfully dissent to the decision to vacate the divorcee decree, and I would consider the remainder of Wife's arguments for reversal.

      . Albert Whitmire is Husband's brother.

      . Husband and Wife both had children from prior marriages, all of whom were adults at the time of the divorce proceeding.

      . Whitmire Construction, Inc. (the business) was created by Husband prior to the marriage, but was owned by Husband and Wife after the marriage. Wife dismissed her claim against the business October 18, 2001.

      . The trial court gave Wife a net award of $381,154, and gave Husband a net award of $428,700. The court explained that the property division awarded a disproportionate share to Husband because of the evidence that Wife had taken money from the business in anticipation of divorce. Wife testified that she took the money because Husband had threatened to leave her penniless, Wife was unable to obtain outside employment because she had been severely burned in an attack by Husband's ex-wife in 1990. The court explained it did not seek to punish Wife for taking the money, but merely wanted to make an equitable division.

      . The order refers to Representative as "Special Administrator."

      . Wife also argues that the trial court erred in granting the divorce without hearing evidence of the grounds for divorce, and without stating the grounds on which the divorce was granted. Wife lastly contends that the property division award was against the weight of the evidence. Because we find that the trial court was without jurisdiction to enter the final decree after Husband's death, we need not reach the issues relating to the granting of the decree or the provisions of the decree itself.

      . Citing Adamson v. Brady, 1947 OK 204, 182 P.2d 748, 199 Okla. 55.

      . Support for this analysis is also found in 43 ©.$.2001 § 123:
      It shall be unlawful for either party to an action for divorce whose former husband or wife is living to marry in this state a person other than the divorced spouse within six (6) months from date of decree of divorce granted in this state, or to cohabit with such other person in this state during said period if the marriage took place in another state; and if an appeal be commenced from said decree, it shall be unlawful for either party to such cause to marry any other person and cohabit with such person in this state until the expiration of thirty (30) days from the date on which final judgment shall be rendered pursuant to such appeal. Any person violating the provisions of this section by such marriage shall be deemed guilty of the felony of bigamy. Any person violating the provisions of this section by such cohabitation shall be deemed guilty of the felony of adultery.
      It would be illogical to start the 6 month period from the date of an oral pronouncement of divorce, that could not yet be appealed. The "date of decree" must relate to the written, filed decree from which an appeal could be taken. Otherwise, a party marrying 6 months after an oral pronouncement of divorce could be rendered a felon by the filing of an appeal after the final decree is filed.

      . In Marzefte, the surviving party did not appeal the granting of the divorce or any other provisions of the trial court's order. The Court raised the validity of the divorce sue sponte without considering the effect of Chastain.

      . Inasmuch as the majority has concluded otherwise, I do not express any opinion on those issues.


author: BAY MITCHELL, Judge:

text:
    2003 OK CIV APP 77
    Sherry D. WALLIS, Plaintiff, v. Kevin R. WALLIS, Defendant/Appellee, and Stefanie Rena Wallis and Karla Denys Wallis, minors, Appellants.
    No. 97,167.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    June 27, 2003.
    Robert M. Butler, Law Offices of Robert M. Butler, P.C., Tulsa, OK, for Plaintiff/Appellant.
    Herlinda M. Arriaga, Jones, Givens, Gotcher & Bogan, P.C., Tulsa, OK, for Defendant/Appellee.
   Opinion by

BAY MITCHELL, Judge:

I 1 This case stems from a divorcee. Mother, Appellant Sherry D. Wallis, and Father, Appellee Kevin R. Wallis, are the parties to the proceeding. The appeal is from the trial court's order on a motion filed by Mother and Father's minor Children, Stefanie Rena Wallis and Karla Denys Wallis, to "Correct the Record, Correct the Order of the Court Filed September 27, 2001, to Speak the Truth, and for the Court to Make a Final Order, Either Allowing or Disallowing the Minor Children's Attorney to Represent the Children Before this Court," in which the trial court reiterated its removal of, and refusal to appoint, Robert M. Butler-an attorney retained and compensated by Mother-as Children's counsel in the case.

Factual and Procedural Background

T2 On December 20, 1999, Father filed a Motion to Modify Decree of Divorcee, alleging that Mother consistently has failed to comply with her legal duties under various orders arising out of the parties' 1995 divorcee action. In particular, Father alleges Mother refused to make Children available for Father's court-ordered visitation and is cohabitating with a man who is married to someone other than Mother. In addition to the Motion to Modify, Father also filed four Applications for Contempt Citation between December 1999 and September 2000, primarily regarding Mother's failure to make Children available for scheduled visitation.

13 On August 25, 2000, Robert M. Butler entered an appearance in the case as attorney for Children, in which he also moved for appointment as their Guardian Ad Litem ("GAL"), should the trial court deem it nee-essary to appoint one. On the same day, Mr. Butler, in his intended capacity as Children's attorney, filed a "Motion for Suspension of Visitations and for Mental Evaluations", requesting the trial court suspend Father's visitation and order Mother, Father, and Children to submit to mental evaluations and treatment if necessary. The motion alleged Children would be in fear for their mental and physical well-being and safety if forced to continue visiting with Father. The children were ages ten and twelve at that time. At no point have Children filed a motion to intervene as parties in this action. Nor have they reported any alleged abuse to the Department of Human Services or otherwise initiated deprived child proceedings under 10 0.9.2001 $ 7008-1.1 et seq.

T4 After the trial court issued an order setting a hearing on the Motion for Suspension of Visitations and for Mental Evaluations, Father filed a motion challenging Children's filings by Mr. Butler. Father argued that, as minors and non-parties, Children do not have standing in the current proceeding and cannot legally retain their own attorney. Father also pointed to a potential conflict of interest in Mr. Butler's representation, given that it is Mother who pays for Mr. Butler's services. Father requested the trial court appoint an independent GAL on Children's behalf.

5 Mr. Butler responded denying any conflict of interest, stating that he was working on a pro-bono basis and representing Children, not Mother. Mr. Butler further stated that Children would prefer not to specify their allegations of abuse and do not seek full termination of. Father's parental rights, only suspension of visitation until he undergoes a mental-health evaluation. Finally, Mr. Butler argued that the United States and Oklahoma Constitutions guarantee Children the right to the legal representative of their choice.

T6 On September 25, 2000, during Moth-. er's arraignment on Father's Fourth Application for Contempt Citation, the trial court concluded that it was in the best interest of Children for it to appoint J. Kenton Francy, Esq., as Children's GAL,

T7 On April 12, 2001, Children-through Mr. Butler, not Mr. Francy-filed a Notice to Take Examination of Father for clinical interviews and psychological testing. On July 20, 2001, Father filed a motion to remove Mr. Butler. On September 27, 2001, the trial court granted Father's motion, removing Mr. Butler from the case. The trial court noted that the pertinent statutes require the trial court to appoint either an attorney or a GAL on behalf of minor children and reasoned that this neutral appointment is particularly important in high-conflict divorcee cases "given the danger of exposing the children to partisan interests of their parents." The trial court also acknowledged Mother's payment of Mr. Butler's retainer presents a conflict of interest. The trial court further stated it would consider the appointment of another attorney to represent Children, pursuant to 10 0.8. § 7002-1.2(C), if evidence were to indicate that Children were subjected to abuse or neglect.

T8 In response to the trial court's order, Children, again through Mr. Butler not Mr. Francy, filed their "Motion to Correct the Record ...", the denial of which forms the basis of the present appeal. In that motion, Children requested the trial court issue a final, appealable order either permitting or prohibiting them from exerciging their purported right to select the counsel of their choosing. <In its order denying Children's "Motion to Correct Record ..." the trial court reasoned that Mr. Butler's "strident language and tone in his pleadings, given that this case involves multiple professionals who are attempting to deal with healing issues" is counterproductive to the proceedings, and his payment by Mother, albeit "on behalf of" Children, presents a conflict of interest regarding his representation. The . trial court further stated that it was satisfied that the service of Mr. Francy, Childrens appointed GAL, best serves their interests and "that appointment of still another attorney in this matter would be a waste of judicial and public resources, confusing to the children, and counterproductive, given Mr. Francy's excellent service thus far as GAL." The trial court further determined that Children had presented only allegations, not evidence, of mental abuse and that, until such time, appointment of counsel for Children thus was not mandated by 10 0.8.2001 § 7002-1.2(C).

T9 Whether minor children of divoreed parents have the right to choose their own counsel to represent them in a legal dispute concerning the terms of their visitation with their non-custodial parent presents a legal question which we review de novo. See Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1083 ("Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings.").

{10 Under Oklahoma law, "[alll persons are capable of contracting, except minors. ..." 15 0.8.2001 § 11. Minors are defined as persons under eighteen (18) years of age. 15 0.8.2001 § 18. It is undisputed that Children herein are minors. It is also undisputed that Children are not parties to their parents' divorce action.

T11 Recognizing that the minor children of divorced parents are incapable of contracting for legal representation but have important interests at stake deserving of protection, Oklahoma law requires trial courts to take into account the best interests of children of divorced parents. 48 0.98.2001 § 109(A). In so doing, a trial court may appoint a GAL for the children, to assist it in determining which custody and visitation arrangements would best support the children's physical, mental, and moral welfare. Id. A GAL so appointed becomes an officer of court and is charged with duty of determining the best interests of the minor children. Kahre v. Kahre, 1995 OK 133, ¶31, 916 P.2d 1355, 1362. What the minor children's own wishes may be is but one factor for both the GAL and the trial court to consider. Id., ¶33.

12 Through the court-appointed, neutral GAL process, Oklahoma has struck a balance between the due process rights of children and their lack of majority status while avoiding the risk of undue influence by the divore-ing parents. Indeed, even in child deprivation proceedings where there is evidence of abuse and the appointment of a separate attorney to represent the children, as opposed to a GAL, is mandatory, the statute expressly states that it is the trial judge, not the parents, who shall make the selection. 10 0.98.2001 § 7008-8.7(A)(2)(2).

€13 Accordingly, we hold that Children, being minors and non-parties, do not have the right to select their own attorney to represent their interests in proceedings involving their parents' divorce. Mr. Butler was properly removed from the case and the trial court did not err in refusing to appoint him as Guardian Ad Litem.

14 The decision of the trial court is AP-FIRMED in all respects.

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

      . Mr. Butler later advised the trial court that he was referred to Mother by a family friend and that Mother paid his retainer. Mr. Butler indicated to the trial court that Children were going to pay Mother back for the retainer out of their summer jobs and allowances.

      . The pertinent terms of Art. 2, § 7, Okl. Const. are: "no person shall be deprived of life, liberty, or property, without due process of law." The pertinent terms of the Fourteenth Amendment, U.S. Const., are "[NJor shall any State deprive any person of life, liberty, or property, without due process of law."


author: WILKINS, Justice:

text:
    2003 UT 37
    James D. NIELSEN, Plaintiff and Appellant, v. GOLD'S GYM and Troy Peterson & Associates, Defendants and Appellees.
    No. 20010510.
    Supreme Court of Utah.
    Sept. 16, 2003.
    Don R. Petersen and Leslie W. Slaugh, Provo, for plaintiff.
    Brian C. Harrison, Provo, for defendants.
   WILKINS, Justice:

{1 James Nielsen, owner and lessor of commercial real estate in Spanish Fork, Utah, appeals the trial court's dismissal of his complaint against Troy Peterson, a Gold's Gym manager, for breach of a commercial lease agreement. We affirm.

FACTUAL AND PROCEDURAL HISTORY

2 Peterson signed a standard, pre-print-ed commercial lease agreement with Nielsen on August 18, 1997. The property in question was described in the lease as a "premises" located at "A Strip Mall at 1341 E Center Spanish Fork, UT," to be used solely as a "Health Club & Gym." The lease term was three years, commencing on November 1, 1997, at an annual rate of $0.85 per square foot.

T3 When the lease was signed by the parties, the building in question was still under construction, and the land was not zoned for a health club. The lease contained an addendum stating, among other things, that the lease was subject to Peterson obtaining a zoning change. The requisite zoning change was obtained in October. After signing the lease, Nielsen referred Peterson to a contractor, who in turn recommended an architect for preparation of interior improvement plans. The contractor prepared an estimate, based on the architectural plans, of approximately $168,000 for tenant improvements to the building shell. After receiving this estimate, Peterson returned to Nielsen to discuss payment for the improvements. The parties failed to reach agreement, no improvements were ever initiated, and Peterson never made any lease payments. After unsuccessfully attempting to re-negotiate with Peterson, Nielsen eventually rented to another tenant and allegedly suffered over $112,000 in damages from the breach.

T 4 Nielsen brought suit for breach of contract. At trial, Nielsen testified that he believed the lease obligated him to deliver a building shell. Peterson testified that he believed Nielsen was obligated to pay for tenant improvements and provide a completed building under the lease. Both parties testified that the first discussion about who would pay for tenant improvements did not occur until after the cost estimates were received.

115 After a bench trial, the trial court ruled that the lease agreement was unenforceable for lack of mutual assent as to the nature and extent of the property to be leased. Specifically, the court ruled that Nielsen failed to establish that there was a meeting of the minds as to which party was to pay for the tenant improvements. Nielsen appeals.

STANDARD OF REVIEW

{6 We review for correctness the trial court's legal conclusion that the contract is ambiguous. Parduhn v. Bennett, 2002 UT 93, ¶ 5, 61 P.3d 982. If a contract is deemed ambiguous, and the trial court allows extrinsic evidence of intent, interpretation of the contract becomes a factual matter and our review is strictly limited. Kimball v. Campbell, 699 P.2d 714, 716 (Utah 1985).

ANALYSIS

T7 The trial court held that the lease agreement in this case is ambiguous because certain essential terms, namely, terms governing the payment for tenant improvements, were missing. A lease agreement, like any contract, "is ambiguous if it is capable of more than one reasonable interpretation because of 'uncertain meanings of terms, missing terms, or other facial deficien-cles." Winegar v. Froerer Corp., 813 P.2d 104, 108 (Utah 1991) (quoting Faulkner v. Farnsworth, 665 P.2d 1292, 1293 (Utah 1983)). When determining whether a contract term is ambiguous, the court is not limited to the contract itself. Peterson v. Sunrider Corp., 2002 UT 43, ¶ 19, 48 P.3d 918; Ward v. Intermountain Farmers Ass'n, 907 P.2d 264, 268 (Utah 1995). Relevant, extrinsic evidence "of the facts known to the parties at the time they entered the [contract]" is admissible to assist the court in determining whether the contract is ambiguous. Yeargin, Inc. v. Auditing Div. of Utah State Tax Comm'n, 2001 UT 11, ¶ 39, 20 P.3d 287.

18 The trial court allowed extrinsic evidence to assist it in the task of determining ambiguity. At the time the parties signed the lease agreement, the building shell was still under construction. Both parties understood that Peterson intended to operate a health club on the premises and that the property would require significant interior improvements before it could be used for the stated purpose. The trial court concluded that "the lease document itself is utterly silent on the topic of payment for the improvements." It further found that the subject of improvements was not addressed by the parties, orally or otherwise, prior to or contemporaneously with the signing of the lease agreement. In fact, the trial court noted that the issue of who was to pay for improvements was not even raised until "well after" the lease was signed.

'I 9 Nielsen argues on appeal that payment of tenant improvements is implicitly addressed in his definition of the term "premises," which he asserts refers only to the building shell that was already planned and under construction at the time the lease was signed. According to Nielsen, the premises could not reasonably consist of both a building shell already planned and any additional, unknown (at the time) tenant improvements. Thus, according to Nielsen, the lease is unambiguous, the duty to pay for tenant improvements lies with Peterson, and the trial court should have enforced the lease according to its terms.

1 10 We agree with the trial court's conclusion that this lease agreement is ambiguous. Nielsen's arguments serve only to reinforce the absence of mutual assent as to the one issue that eventually terminated this relationship. While the parties on appeal focus on the term "premises" as a source of contractual ambiguity, our reading of the trial court's ruling reveals that it believed the ambiguity is found in the absence of any contractual language addressing payment for the improvements. Thus, this is more a case about missing terms than indefinite terms.

111 On appeal, Nielsen's only argument was that the trial court erred when it ruled that the contract was ambiguous. Since we agree with the trial court's conclusion of ambiguity, we will only briefly note the ultimate basis for the court's dismissal of Nielsen's action; namely, that there was no meeting of the minds on the essential terms of the lease. "It is fundamental that a meeting of the minds on the integral features of an agreement is essential to the formation of a contract. An agreement cannot be enforced if its terms are indefinite." Richard Barton Enters. v. Tsern, 928 P.2d 368, 373 (Utah 1996) (citing Pingree v. Cont'l Group of Utah, Inc., 558 P.2d 1317, 1321 (Utah 1976)); (Valcarce v. Bitters, 12 Utah 2d 61, 63, 362 P.2d 427, 428 (1961)) (additional citations omitted); see also Candland v. Oldroyd, 67 Utah 605, 608, 248 P. 1101, 1102 (1926) ("So long as there is any uncertainty or indefiniteness, or future negotiations or considerations to be had between the parties, there is not a completed contract. In fact, there is no contract at all.").

12 In this case, the trial court found that the obligation to pay for tenant improvements is not addressed in the lease itself and cannot be established through any extrinsic evidence. The court must be able to enforce the contract according to the parties' intentions; if those intentions are impenetrable, or never actually existed, there can be no contract to enforce. "A contract may be enforced even though some contract terms may be missing or left to be agreed upon, but if the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no contract." Acad. Chicago Publishers v. Cheever, 144 Ill.2d 24, 161 Ill.Dec. 335, 578 N.E.2d 981, 984 (1991) (citations omitted). Here, the trial court could not discern any basis for deciding whether the lease had been breached and, therefore, could not enforce the contract.

118 Implicit in the trial court's ruling is the conclusion that terms governing payment of tenant improvements are essential to the lease agreement in this case. "Whether or not the [missing term] was essential to the contract requires an examination of the entire agreement and the circumstances under which the agreement was entered into." Cessna Fin. Corp. v. Meyer, 575 P.2d 1048, 1050 (Utah 1978). Merely satisfying the minimum requirements for the statute of frauds does not automatically render all contracts sufficiently definite to be enforced by the courts. In this case, the building shell itself was still under construction when the lease was signed. Uncontro-verted trial testimony establishes that the contractor had not completed the floor of the building shell because he anticipated that tenant improvements would require modification to the original building plans for plumbing and electrical configurations. Nor were the roof and walls completed. This renders the question of payment even more important, because it is not clear from the lease who was required to pay for those tenant-based modifications to the building shell. Furthermore, there was no evidence at trial concerning industry customs or standards, or any other extrinsic evidence, that would aid the court in determining responsibility for payment. Finally, even Nielsen notes that the cost of improvements "would have consumed more than half of the total rents over the three-year term of the lease," constituting a significant portion of the overall costs associated with the lease. While payment for tenant improvements is by no means an essential term in every commercial lease agreement, the facts of this case persuade us that it was an essential part of the bargain to be reached here.

CONCLUSION

4 14 We uphold the trial court's legal determination that the lease agreement was ambiguous due to missing terms, specifically, those terms governing payment of tenant improvements. The trial court's interpretation of the contract after finding ambiguity was not challenged on appeal; thus, we also uphold the trial court's ruling that the contract was unenforceable for lack of mutual assent as to the essential terms governing which party was to pay for tenant improvements. The judgment of dismissal is affirmed.

1 15 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Justice WILKINS opinion.