text:
    Amber Olivia NORBECK and Andrew Peter Nels Norbeck, Plaintiffs and Appellants, v. FLATHEAD COUNTY, a political subdivision of the State of Montana; The State of Montana (Department of Environmental Quality); Birk Engineering and Construction, Inc. ; and Bret A. Birk, Defendants and Appellees.
    DA 18-0117
    Supreme Court of Montana.
    Submitted on Briefs: December 12, 2018 Decided: April 9, 2019
    For Appellants: W. Wayne Harper, Harper Law Firm, Butte, Montana
    For Appellees: Jeffrey M. Doud, Agency Legal Services Bureau, Helena, Montana (for Department of Environmental Quality), Sarah D. Simkins, Johnson, Berg & Saxby, PLLP, Kalispell, Montana (for Birk Engineering & Construction and Bret A. Birk), Gregory L. Bonilla, MACo Defense Services, Helena, Montana (for Flathead County)
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Appellants Amber Norbeck and Andrew Norbeck (Norbecks) appeal the Eleventh District Court's orders granting summary judgment to the State of Montana Department of Environmental Quality (DEQ), Birk Engineering and Bret A. Birk (Birks), and Flathead County (Flathead), respectively issued December 18, 2017, December 22, 2017, and March 23, 2018. We affirm.

¶2 We restate the issue on appeal as follows:

Did the District Court err in granting DEQ, Birks, and Flathead's motions for summary judgment?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 William Koenig (Koenig) was the developer of the Harvest View Subdivision (Subdivision) near Kalispell, MT. In approximately November 2005, Koenig engaged Birks to perform engineering services in connection with development of the Subdivision. Birks performed these services from July 2007 to April 2010. On April 2, 2008, the July 28, 2007 DEQ Certificate of Subdivision Plat Approval (COSA) for the Subdivision was filed in the Clerk's records. The COSA stated the public water system will be provided to the Subdivision and required completion of such within three years of the approval date. It also indicated the developer/owner of record, Koenig, to be responsible for providing a copy of the COSA to all eventual purchasers. Norbecks admit the COSA allowed purchasers to buy and build without the water system completed or having final DEQ certification. Also on April 2, 2008, as part of the final Subdivision plat, a subdivision improvement agreement (SIA) was filed in the Clerk's records. The April 2008 SIA identified necessary infrastructure improvements and reflected Koenig's bond to complete those improvements if he failed to do so. The projected cost of the on-site water supply and pump house improvements was $19,740. On December 19, 2008, another SIA between Koenig and Flathead was filed in the Clerk's records. The December 2008 SIA indicated the Subdivision water system was completed "9/2005" and again estimated the construction costs for the remaining on-site water supply and pump house improvements that still needed to be completed to be $19,740.

¶4 Norbecks purchased a lot in the Subdivision on December 29, 2008, known as 500 Harvest View Lane (Property). On December 31, 2008, Fidelity National Title Company (Fidelity) issued Norbecks a title insurance policy excepting from coverage, among other things, the April 2008 SIA. Norbecks then built their home on the Property, finishing it in January 2010. During construction Norbecks experienced various issues related to the Property. By no later than November 1, 2009, Norbecks' contractor, Jesse Lee (Lee), knew there was no water to the home and the Subdivision pump house had not been completed. Upon completion of the home, Lee informed Flathead the home had no water and Koenig had not completed his SIA improvement work. He was advised to contact the County Commissioners' office and have the SIA placed on the discussion agenda. Neither Lee nor the Norbecks ever followed up on this request. The Norbecks moved into the home before the wells were connected to the Subdivision water system and lived without water for three weeks. When the wells were connected to the Subdivision water system, the Norbecks' water line broke causing flooding in and around their home. It took a week for Sandry Construction to fix this problem. Norbecks then observed Sandry Construction fixing leaks in the water mains, installing a main water line to the well house, and fixing other leaks throughout the Subdivision. Over the next several months to a year, Norbecks continued to have issues with water, both as to quality and quantity. Until their appliances began to fail, Norbecks "simply lived with the situation[,] as it was bearable and appeared to be resolving itself." On March 11, 2010, two months after the Norbecks moved into their home, they had their water tested. Montana Environmental Lab found the turbidity was "15 ? mud" indicating significant mud to be present in Norbecks' water. In the summer of 2011, Norbecks experienced additional water issues when they turned on their water for their new sprinkler system and there was no pressure to run it and they had to seek assistance from the developer to obtain water pressure for the system.

¶5 In early February 2013, Norbecks received a Notice of Violation sent by DEQ to Birks indicating DEQ required the project engineer to submit a certification letter for public water and storm water systems and that, within 90 days of installation, a complete set of as-built drawings were required. On August 15, 2013, another Notice of Violation was issued which set forth a list of water system information DEQ required Birks submit. DEQ issued another Notice of Violation on January 22, 2014, which indicated that Koenig had notified DEQ on January 17, 2014, he had retained a different engineer on the project. Koenig and DEQ then entered an Administrative Order on Consent effective June 4, 2014, which outlined various violations by Koenig, stipulated penalties, and corrective actions required. Norbecks have admitted they had constructive notice of the violations found by DEQ involving the Subdivision as they lived without water for 3 weeks and experienced flooding and ongoing water quality issues. In the summer of 2014, Norbecks decided to sell their home and were informed they could not sell their home using conventional financing due to the DEQ violation notices. On November 14, 2014, Norbecks filed suit against William Koenig, Karen Koenig, Flathead, DEQ, Birks, Fidelity, and Glacier Real Estate (Glacier). Norbecks' Complaint, in relevant part, asserted violations of § 30-14-103, MCA, the Montana Unfair Trade Practices and Consumer Protection Act (MUTPA) (Count 1); negligence (Count 2); negligent misrepresentation (Count 4); continuing nuisance (Count 5); and constructive fraud (Count 6), as well as a claim for punitive damages. With the exception of Count 3, which was directed specifically at Glacier, Norbecks' claims are pleaded generally and collectively against all Defendants.

¶6 On February 23, 2017, Glacier moved for summary judgment. Norbecks did not respond and on April 4, 2017, the District Court granted Glacier's summary judgment motion. Thereafter, Glacier moved to certify the order as final, Norbecks again did not respond and the District Court certified its order and entered final judgment against Norbecks on June 27, 2017. Norbecks sought no further relief from the final judgment in favor of Glacier.

¶7 On August 10, 2017, Fidelity filed its motion for summary judgment. Norbecks did not respond and the District Court granted Fidelity's motion on September 7, 2017. In its order the District Court found, as a matter of law, Norbecks' claims relating to violations associated with the completion of the Subdivision's water system, were known to or in the exercise of due diligence were discoverable by Norbecks no later than May 1, 2010, and, as such, Norbecks' tort claims were barred by applicable statutes of limitation. Following hearing on September 19, 2017, where counsel for the Norbecks represented that he had never received the summary judgment orders regarding either Glacier or Fidelity, the District Court rescinded its order granting Fidelity's motion for summary judgment and gave Norbecks two weeks to respond to the motion. Norbecks did not file a response and on October 24, 2017, the District Court certified its order granting Fidelity's motion for summary judgment as final and entered judgment in favor of Fidelity. Notice of Entry of Judgment was issued October 27, 2017. Norbecks did not appeal the Order or Judgment.

¶8 On October 5, 2017, Norbecks filed a motion to dismiss both Koenig defendants, which was granted by the District Court on October 24, 2017.

¶9 On September 15, 2017, Birks sought summary judgment asserting Norbecks' Complaint was barred by applicable statutes of limitation and barred as Birks did not owe Norbecks a legal duty of care in connection with Birks' work on the Subdivision. On December 22, 2017, the District Court granted Birks' motion for summary judgment finding Norbecks' claims accrued no later than May 1, 2010, and were therefore barred by applicable statutes of limitation. The District Court did not address Birks' argument regarding duty.

¶10 On September 28, 2017, DEQ filed its motion for summary judgment asserting DEQ could not be held liable for MUTPA, constructive fraud, or punitive damage claims and that the statute of limitations had run on all tort claims. Norbecks responded on October 23, 2017, conceding their MUTPA, constructive fraud, and punitive damage claims against DEQ and asserting the statute of limitations on their tort claims should be tolled. On November 3, 2017, DEQ filed its reply in which it argued the law of the case precluded Norbecks from asserting the statute of limitations began to run on a different date than that already determined by the Court, the discovery rule was not applicable as Norbecks had sufficient notice of the water system issues to trigger their duty to conduct a reasonable inquiry, and their own admissions precluded tolling. On December 19, 2017, the District Court granted DEQ's motion for summary judgment. DEQ moved to certify the order on December 28, 2017, and on January 23, 2018, the District Court granted the motion and entered final judgment against Norbecks.

¶11 On January 19, 2018, Flathead filed its motion for summary judgment also asserting it could not be held liable for MUTPA, constructive fraud, or punitive damage claims and that the statute of limitations had run on all tort claims. On February 12, 2018, Norbecks responded conceding summary judgment was appropriate on their MUTPA, constructive fraud, and punitive damage claims and asserting the statute of limitations did not begin to run on their remaining claims until they discovered DEQ's involvement in the Subdivision review. On March 1, 2018, Flathead replied asserting the law of the case precluded Norbecks from arguing the statute of limitations began to run on a different date than that already determined by the District Court and the discovery rule did not apply as Norbecks had ample notice of water system issues to require their further investigation. On March 23, 2018, the District Court granted Flathead's motion for summary judgment. Norbecks now appeal the District Court's summary judgment orders regarding DEQ, Birks, and Flathead.

STANDARD OF REVIEW

¶12 We conduct a de novo review of a district court's ruling on motions for summary judgment, using the same M. R. Civ. P. 56 criteria as the district court. Chapman v. Maxwell , 2014 MT 35, ¶ 7, 374 Mont. 12, 322 P.3d 1029. "[O]ur de novo standard of review of summary judgment decisions allows us to review the record and make our own determinations regarding the existence of disputed issues of fact and entitlement to judgment as a matter of law." Wurl v. Polson Sch. Dist. No. 23 , 2006 MT 8, ¶ 29, 330 Mont. 282, 127 P.3d 436.

¶13 We review a district court's interpretation and application of a statute to a particular set of circumstances for correctness. Finn v. Dakota Fire Ins. Co. , 2015 MT 253, ¶ 6, 380 Mont. 481, 356 P.3d 13.

DISCUSSION

¶14 Did the District Court err in granting DEQ, Birks, and Flathead's motions for summary judgment?

¶15 DEQ, Birks, and Flathead assert Norbecks' claims are barred by applicable statutes of limitation, the discovery rule is inapplicable to toll the start of the limitation periods as the Norbecks were aware of water system problems of the Subdivision that would prompt a reasonable person to conduct further inquiry, and Norbecks are precluded from asserting the limitation periods began to run as of a different date than that already determined by the District Court.

¶16 Norbecks counter they are suing for "damages that happened in the summer of 2014 when they decided to sell their house and found out that conventional financing could not be obtained because of DEQ Notices of Violation" and that they were "unaware of this issue until DEQ issued Notices of Violation on February 4, 2013 and August 15, 2013." They contend that until 2014 when they attempted to sell their home, they were not damaged by the underlying violations of Birks or the inactions of Flathead and DEQ.

¶17 A claim for violation of MUTPA is subject to a two-year statute of limitations. Osterman v. Sears , 2003 MT 327, ¶ 24, 318 Mont. 342, 80 P.3d 435. A claim of negligence or negligent misrepresentation is subject to a three-year statute of limitations. Section 27-2-204(1), MCA. A nuisance claim is generally subject to a two-year statute of limitations, but since the District Court found Norbecks' nuisance claim was based on a negligent act, the applicable statute of limitations is that of negligence-three years. See § 27-2-207, MCA ; § 27-2-204, MCA. A claim of fraud-actual or constructive-is subject to a two-year statute of limitations. Section 27-2-203, MCA.

¶18 A claim accrues and the limitations period begins to run "when all elements of the claim or cause exist." Section 27-2-102(1)(a), MCA.

Lack of knowledge of a claim does not postpone the beginning of the period of limitation. Section 27-2-102(2), MCA. The fact a party does not know he or she has a claim, either because he or she is unaware of the facts or unaware of his or her legal rights is insufficient to delay the commencement of the limitations period. Christian v. Atl. Richfield Co. , 2015 MT 255, ¶ 61, 380 Mont. 495, 358 P.3d 131 ; State ex rel. Egeland v. Cut Bank , 245 Mont. 484, 488, 803 P.2d 609, 611-12 (1990). A claim not filed within the applicable statute of limitations is generally barred. Pederson v. Rocky Mountain Bank , 2012 MT 48, ¶ 9, 364 Mont. 258, 272 P.3d 663 (internal citation omitted).

¶19 The discovery rule provides an exception to this general rule. Under the discovery rule, the period of limitation does not begin to run until the injured party discovers the facts constituting the claim or, in the exercise of due diligence, should have discovered the facts constituting the claim if the facts constituting the claim are by their nature concealed or self-concealing or a defendant has taken action preventing plaintiff from discovering the facts. Section 27-2-102(3), MCA ; Draggin' Y Cattle Co. v. Addink , 2013 MT 319, ¶ 21, 372 Mont. 334, 312 P.3d 451. Despite this, for a claim to accrue, the injured party does not need to have actual or complete knowledge of the facts constituting the claim. Christian , ¶ 61. Even if the facts constituting the claim are otherwise self-concealing, if the injured party has received notice of a possible claim and failed to act diligently in pursuing the claim, the claim may be time-barred. Christian , ¶ 64. Pursuant to § 70-21-302(1), MCA, "[e]very conveyance of real property acknowledged or proved and certified and recorded as prescribed by law, from the time it is filed with the county clerk for record, is constructive notice of the contents thereof to subsequent purchasers and mortgagees." "Conveyance" includes "every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encumbered or by which the title to real property may be affected, except wills." Section 70-21-301, MCA.

¶20 The District Court determined the facts constituting Norbecks' claims were discovered or, in the exercise of reasonable diligence, should have been discovered by Norbecks no later than May 1, 2010. From our review of the record, the undisputed facts support the District Court's finding that Norbecks claims accrued no later than May 1, 2010. Despite Norbecks' arguments to the contrary, Norbecks admit the facts constituting their claims were discovered or, in the exercise of reasonable diligence should have been discovered by them no later than May 1, 2010. Norbecks admit the April 2008 COSA allowed purchasers to buy and build without the water system completed or having final DEQ certification. On December 31, 2008, Fidelity issued Norbecks a title insurance policy excepting from coverage, among other things, the April 2008 SIA. Norbecks had constructive notice of the contents of the 2008 COSA and April 2008 SIA indicating the Subdivision water system was not complete and delineating what needed to be done by Koenig to satisfy the SIA. On December 19, 2008, another SIA was filed in the Clerk's records indicating the same water system deficiencies delineated in the April 2008 SIA. Norbecks knew they did not have water to their home during its construction. By January 15, 2010, when their builder Lee informed Flathead the developer had not completed his SIA work, Norbecks were notified the SIA for the Subdivision had not been met and that they needed to request the water system issue be placed on the County Commissioners' agenda for discussion. The Norbecks moved into the home before the wells were connected to the Subdivision water system and lived without water for three weeks. When the wells were eventually connected to the Subdivision water system, the Norbecks' water line broke and caused flooding in and around their home. It took a week for the Norbecks' water line to be fixed, after which they observed Sandry Construction fixing leaks in the water mains, installing a main water line to the well house, and fixing other leaks throughout the Subdivision. Until their appliances began to fail, Norbecks "simply lived with the situation, as it was bearable and appeared to be resolving itself." On March 11, 2010, two months after the Norbecks moved into their home, they had their water tested and discovered mud in their water. Over the next several months, Norbecks continued to have issues with both the quality and quantity of their water. From these undisputed facts, it is clear Norbecks had actual notice by at least May 1, 2010, that the Subdivision's water system was not completed and additional improvements were required to fulfill the 2008 SIAs. These undisputed facts also support the District Court's finding that Norbecks had constructive notice of the contents of the 2008 COSA and the 2008 SIAs prior to May 1, 2010, putting them on notice to make reasonable inquiry.

¶21 Norbecks now argue on appeal that despite their lack of water, their home flooding and their ongoing problems with both the quality and quantity of their water occurring prior to May 1, 2010, the District Court erred in dismissing their claims because "they were not damaged by the underlying violations of Defendants Birk or the inactions of the DEQ and Flathead County" until 2014 when they attempted to sell their home such that the statute of limitations did not began to run until the summer of 2014 when they discovered their alleged inability to sell their home using conventional financing.

¶22 Flathead and DEQ assert this argument should not be considered as it is a new theory on appeal-"a wholesale departure from the arguments Norbecks raised before the District Court" where they argued "the statute of limitations relative to DEQ could not have started prior to November 2012 or February 2013." Norbecks contend they argued "to the Court, and again argue to this Court, that until 2014, when they attempted to sell their home, they were not damaged by the underlying violations of Defendants Birk or the inaction of the DEQ and Flathead County." Norbecks argued to the District Court that they were not aware that the SIAs and COSA on the Subdivision were not complete until August 2013, and they were not familiar with the interplay of COSAs and SIAs. They contended the SIAs and COSA were self-concealing and their complexity precluded setting the accrual date of their claims prior to the DEQ violation notices.

They also asserted there were no damages present for their inability to sell their home until DEQ issued its violation notices. From these arguments to the District Court, we conclude Norbecks sufficiently preserved their accrual argument that the District Court erred in applying the discovery rule to delay the commencement of the applicable statutes of limitation periods. Despite preserving this issue for appeal, we conclude the District Court did not err in determining the date on which Norbecks' claims accrued.

¶23 Norbecks fail to set forth any evidence that the facts constituting their claims were concealed in any way or that DEQ, Birks, or Flathead acted in any manner to prevent Norbecks from discovering the facts constituting their claims. As outlined above, Norbecks had actual knowledge of deficiencies in the water system serving their home in 2009, 2010, and beyond. As of April 2008, both the COSA and 2008 SIAs were on record with the Flathead County Clerk and Recorder's Office. Both documents, of which Norbecks had constructive notice pursuant to § 70-21-302(1), MCA, provided information that the Subdivision's water system needed to be completed by a date certain, a date which passed without completion. Further, the 2008 SIA specifically excepted in Norbecks' title insurance policy outlined the outstanding work to be performed including over $19,000 of work on the Subdivision water system. Norbecks argue they should be excused from conducting a reasonable inquiry because the complexity of the COSA and SIAs were such that only business people involved in the daily transactions of them could understand them. This assertion is disingenuous considering Norbecks' admission that they were able to learn a lot about the SIAs and COSA in late 2012 and 2013. Norbecks had sufficient actual and constructive notice of the issues with the Subdivision water system in early 2010 to trigger their duty to conduct a reasonable inquiry. Norbecks did not conduct a reasonable inquiry and admittedly chose just to live with the situation.

¶24 It is "not necessary to know the total extent of damages that an act causes to begin the running of the statute of limitations." E.W. v. D.C.H. , 231 Mont. 481, 487, 754 P.2d 817, 820 (1988) (citation omitted); see Bergin v. Temple , 111 Mont. 539, 548, 111 P.2d 286, 290 (1941) (cause of action exists when plaintiff's rights are infringed). "[T]here is no Montana precedent for utilizing the discovery doctrine to toll the statute of limitations beyond discovery of the cause of an injury." E.W. , 231 Mont. at 486, 754 P.2d at 820 (citation omitted). Norbecks knew, through their contractor Lee, as early as November 2009 the Subdivision water system was incomplete. When they moved into their house in early 2010, they lacked water for a few weeks. When the water was finally connected to the Subdivision wells, their waterline broke and they experienced extensive flooding. Noticing problems with their appliances, they had their water tested and learned there was mud in the water. Thereafter, they continued to experience ongoing water problems as to both quality and quantity. Rather than investigate further, they chose to just live with it. In 2009, 2010, and 2011, Norbecks suffered actual damages as a result of the incomplete Subdivision water system and it was not necessary for them to suffer more damage for their claims to accrue. The District Court properly concluded the fact the Subdivision water system was not complete was known to or, in the exercise of due diligence, was discoverable by the Norbecks no later than May 1, 2010. The fact that the extent of their damages-including the inability to sell their home using conventional financing-was not yet fully known did not preclude accrual of their claims prior to May 1, 2010, as concluded by the District Court.

¶25 Norbecks assert "the District Court did not correctly apply Montana case law relative to the 'law of the case.' " On September 7, 2017, the District Court granted Fidelity's motion for summary judgment. In that Order the District Court found, that with the exception of the allegations of Count 3 of Norbecks' Complaint relating specifically to Glacier, Norbecks' claims are pleaded generally and collectively to all Defendants. The District Court found the Norbecks'

claims against each Defendant are predicated upon the issues with the subdivision water system cited by DEQ in its Notices of Violation, i.e. the Subdivision water system was not complete. In their Complaint, Norbecks allege the collective Defendants concealed materially adverse facts that were known to all of them. This allegation is incorporated by reference into each of the Norbecks' claims for relief. In its Order granting Fidelity summary judgment, the District Court concluded "the fact the Subdivision water system was not complete was known to, or in the exercise of due diligence, was discoverable by the Norbecks no later than May 01, 2010." The District Court further concluded that on May 1, 2010, the statute of limitations on the Norbecks' claims against Fidelity began to run. Thereafter, in the summary judgment orders appealed from herein, the District Court held that because the Norbecks had the opportunity to appeal its September 7, 2017 order granting Fidelity summary judgment but did not do so, "it is the law of this case that the fact the Subdivision water system was not complete was known to, or in the exercise of due diligence, was discoverable by the Norbecks no later than May 01, 2010."

¶26 The "law of the case" posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Arizona v. California , 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). It refers to instances where rulings made at a stage in litigation that are not appealed from when the opportunity to do so exists, become "the law of the case for the future course of that litigation and the party that does not appeal is deemed to have waived the right to attack that decision at future points in the same litigation." McCormick v. Brevig , 2007 MT 195, ¶ 38, 338 Mont. 370, 169 P.3d 352 (citations omitted). Norbecks contend that the law of the case doctrine applies only to the same issue between the same parties in the same case, asserting that the District Court's orders on summary judgment with regard to Glacier and Fidelity are only the law of the case with regard to Glacier and Fidelity, not with regard to DEQ, Birks, or Flathead. Further, Norbecks assert the Glacier and Fidelity summary judgment orders were not provided to them due to a mailing error in the Flathead County Clerk's Office.

¶27 DEQ, Birks, and Flathead contend the District Court did not erroneously apply the law of the case doctrine. Norbecks pleaded their claims generally against all named Defendants such that the District Court's determination with respect to the date the Norbecks' claims accrued applied to all Defendants. Once the District Court made its determination and the time for appeal expired, the accrual date determined by the District Court-no later than May 1, 2010-became the law of the case. The District Court granted Glacier's and Fidelity's respective motions for summary judgment, certified both orders, and entered final judgments. Norbecks did not appeal either order. As such, DEQ, Birks, and Flathead contend Norbecks waived their right to dispute that their claims accrued later than May 1, 2010. We agree.

¶28 We conclude the District Court did not incorrectly apply the law of the case doctrine. The purpose of the law of the case doctrine promotes finality and efficiency of the judicial process and protects against disturbing resolved issues. Christianson v. Colt Indus. Operating Corp ., 486 U.S. 800, 815-16, 108 S.Ct. 2166, 2177, 100 L.Ed.2d 811 (1988). Although the decisions cited by Norbecks reference that the doctrine applies to the same parties, those cases did not involve multiple plaintiffs or defendants such that the prior determination by their nature involved the same parties. None of the case law cited by Norbecks limits the law of the case doctrine to the same parties in a fact pattern such as that present here. Where claims are pleaded generally against all defendants, as is the case here, the legal determinations regarding those claims made by the court during the litigation are applicable to all the parties to the litigation. When a court decides on a rule of law, as the District Court did in determining the accrual date of Norbecks' claims, that decision should appropriately continue to govern the same issues in subsequent stages of the same case.

¶29 Norbecks' assertion they should not be bound by the court's legal determination as to the date of accrual of their claims contained in the District Court's orders granting summary judgment in favor of Glacier and Fidelity is unavailing for two reasons. First, Norbecks assert they did not appeal as they agreed with the orders. Second, Norbecks' argument ignores that they were provided opportunity to review the basis of the District Court's orders granting summary judgment to Glacier and Fidelity. During hearing on September 19, 2017, Norbecks' counsel was given opportunity to review the basis of the summary judgment orders. Norbecks specifically did not challenge the order granting Glacier summary judgment but requested additional time to review and respond to the Fidelity order. The District Court then rescinded the order granting Fidelity summary judgment and granted Norbecks an additional two weeks to respond. Norbecks then did not respond and on October 24, 2017, the District Court certified its order granting Fidelity's motion for summary judgment as final and entered judgment in favor of Fidelity. Notice of Entry of Judgment was issued October 27, 2017. Norbecks did not appeal the Order or Judgment. In sum, the legal issue involved here was the accrual date of the Norbecks' claims. The Norbecks pleaded their claims generally against all Defendants. Thus, the District Court's determination that Norbecks' claims accrued no later than May 1, 2010, became the law of the case and applied equally to all Defendants. As such, the District Court correctly applied the law of the case doctrine to conclude that all of Norbecks' remaining claims were barred as they were not commenced within the applicable statutes of limitation and granted DEQ, Birks, and Flathead summary judgment.

CONCLUSION

¶30 The District Court did not err in granting Defendants DEQ, Birks, and Flathead's motions for summary judgment.

¶31 Affirmed.

We concur:

MIKE McGRATH, C.J.

LAURIE McKINNON, J.

BETH BAKER, J.

DIRK M. SANDEFUR, J.

      The Norbecks did not request an opportunity to respond to the order granting summary judgment to Glacier, as they agreed with it.

      Such as that their home would not qualify for a conventional mortgage, thus impairing their ability to sell it.

      Scott v. Scott , 283 Mont. 169, 939 P.2d 998 (1997), State v. Gilder , 2001 MT 121, 305 Mont. 362, 28 P.3d 488, and State v. Black , 245 Mont. 39, 798 P.2d 530 (1990).

      Norbecks conceded their MUTPA and punitive damage claims leaving only their remaining tort claims.


source: Caselaw Access Project

license: Public Domain

text:
    James Ronald WILSON, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
    DA 18-0314
    Supreme Court of Montana.
    Submitted on Briefs: March 20, 2019 Decided: April 9, 2019
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text:
    In re the Marriage of: Mark Duane SHEEHAN, Petitioner and Appellant, v. Shelli R. FRAZIER, f/k/a Shelli R. Sheehan, Respondent and Appellee.
    DA 18-0478
    Supreme Court of Montana.
    Submitted on Briefs: February 6, 2019 Decided: April 9, 2019
    Affirm.


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    DA 18-0444
    Supreme Court of Montana.
    Submitted on Briefs: February 6, 2019 Decided: April 16, 2019
    Affirmed in part. Reversed in part.


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    DA 17-0228
    Supreme Court of Montana.
    Submitted on Briefs: January 23, 2019 Decided: April 16, 2019
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    William Clifton Haley, Appellant, v. The State of Nevada, Respondent.
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text:
    In the Marriage of: Michelle J. BRISCOE, Petitioner/Appellee, v. Michael R. BRISCOE, Respondent/Appellant.
    Case No. 116,515
    Court of Civil Appeals of Oklahoma, Division No. 4.
    FILED NOVEMBER 29, 2018 Mandate Issued: January 30, 2019
    Rachel Bussett, Ashley Weyland, BUSSETT LEGAL GROUP, PLLC, Oklahoma City, Oklahoma, for Respondent/Appellant
    Edward Goldman, GOLDMAN LAW, PLLC, Oklahoma City, Oklahoma, for Petitioner/Appellee
   OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE:

¶1 This appeal arises from the parties' post-divorce proceedings. Michael R. Briscoe (Father) appeals from the trial court's order awarding attorney fees to Michelle J. Briscoe (Mother). Prior to awarding attorney fees to Mother, the trial court, in August 2017, entered an order sustaining the motion of Mother to require Father "to Pay his Share of Health Insurance Premium." In particular, the trial court ordered Father to pay Mother "$136.50 per month as his share of the children's health insurance premium commencing August 1, 2017...." Mother then filed an application for attorney fees and costs expended in relation to this health insurance issue. Following a hearing on Mother's application for attorney fees, the trial court entered an order in October 2017 awarding Mother $2,282.50 in attorney fees. This award is equivalent to the total amount of fees sought by Mother for 8.3 hours billed at $275 per hour.

¶2 Based on our review, we affirm.

STANDARD OF REVIEW

¶3 The fundamental question raised on appeal concerns the proper construction of the attorney fee statute at issue- 43 O.S. 2011 § 110(D) & (E). Questions of statutory construction "are questions of law that we review de novo and over which we exercise plenary, independent, and non-deferential authority. The primary goal of statutory construction is to ascertain and follow the intent of the Legislature." Welch v. Crow , 2009 OK 20, ¶ 10, 206 P.3d 599 (footnotes omitted).

ANALYSIS

¶4 On appeal, Father argues the trial court misapplied § 110(D) & (E) by, among other things, failing to "weigh the judicial equities." To the extent Father is arguing the trial court altogether failed to undertake a judicial balancing of the equities, there is no indication in the record that the trial court failed in this regard, and error is not presumed on appeal. In fact, the record demonstrates that a judicial balancing of the equities properly occurred. As set forth in Mother's application for attorney fees, Mother expressly sought fees

pursuant to Title 43 O.S. [§ 110(D) & (E) ] and Kerby v. Kerby , [2007 OK 36,] 164 P.3d 1053..., wherein it states that attorney fees may be awarded to the party "who qualifies for the benefit through the process of a judicial balancing of the equities."

Moreover, at the attorney fee hearing, it was counsel for Father, not Mother, who objected to the presentation of argument and evidence relevant to the Finger factors. For example, Mother's counsel stated at the hearing that Father's "joint tax return showed $61,366 as wages" for the previous year, and counsel for Father objected on the basis that Father's wages have no bearing on the attorney fee request. Counsel for Mother responded by stating, "It has to do with ability to pay and the balancing of the equities," and the trial court overruled Father's objection.

¶5 Although Father asserts on appeal that "[Mother] never cited these factors and/or argued these factors" and, therefore, "the Court did not have any way to balance the equities and award attorney fees," a review of the record reveals that Mother cited appropriate authority and presented argument and evidence directly relevant to a judicial balancing of the equities. Therefore, to the extent Father is arguing the trial court altogether failed to undertake a judicial balancing of the equities, we find Father's argument to be without merit.

¶6 Father also argues the trial court's determination is not "in accordance with Finger and Burk ." Indeed, Father spends a great deal of time in his appellate brief discussing the interplay and significance of Finger and Burk , and he asserts the trial court erred in failing to apply all of the "almost 15-18 factors between the two cases." Father asserts, "The Burk factors are one of the most important piece[s] of law in assessing an attorney fee request and [Mother] failed to address this standard in any pleading or hearing." However, a review of the Oklahoma Supreme Court decisions addressing challenges to § 110 attorney fee awards over the past two decades reveals that the Burk factors play a somewhat different role in such cases than they play in the context of determining an appropriate fee award under mandatory prevailing party fee statutes. The distinctive analysis applied in these cases stems from the distinctive statutory language at issue. As indicated, the applicable statutory provisions in the present case are found in 43 O.S. 2011 § 110, and read as follows:

D. Upon granting a decree of dissolution of marriage, annulment of a marriage, or legal separation, the court may require either party to pay such reasonable expenses of the other as may be just and proper under the circumstances.
E. The court may in its discretion make additional orders relative to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the dissolution of marriage action made for the benefit of either party or their respective attorneys.

¶7 By way of contrast, 43 O.S. 2011 § 111.1(C)(3), for example, provides as follows:

Unless good cause is shown for the noncompliance, the prevailing party shall be entitled to recover court costs and attorney fees expended in enforcing the order and any other reasonable costs and expenses incurred in connection with the denied child support or denied visitation as authorized by the court.

¶8 The attorney fees in this case were awarded under § 110(D) & (E), not under a mandatory prevailing party fee statute like § 111.1(C)(3). Under such circumstances, a "judicial balancing of the equities" has consistently controlled both the initial determination as to whether one party is entitled to attorney fees under § 110, and the ultimate determination of what is "just and proper under the circumstances." In our view, the Burk factors persist under § 110, but only in a circumscribed intermediate role between these two determinations; that is, the factors set forth in Burk become relevant and should be applied in the context of a § 110 attorney fee request when a party specifically challenges the reasonableness of the total fee sought by the party entitled to fees. See Smith v. Smith , 2013 OK CIV APP 54, ¶ 9, 305 P.3d 1054 ( Burk must be applied in the context of a § 110 attorney fee request "[w]hen ... issues are raised as to amount of time spent and complexity of the case...." (emphasis added) ). However, under § 110, the trial court is charged with ultimately awarding only such reasonable expenses "as may be just and proper under the circumstances," and thus the ultimate determination should be based on equitable factors such as the economic resources of the parties and the parties' behavior with regard to the welfare of their children-factors which would not be applied in the context of awarding fees pursuant to a mandatory prevailing party attorney fee statute.

¶9 Here, because Father did not specifically challenge the reasonableness of the total fee sought by Mother, we reject Father's argument that the trial court erred as a matter of law in failing to apply the Burk factors. Cf.

Smith , 2013 OK CIV APP 54, ¶ 9, 305 P.3d 1054 (Because such a specific challenge was made in Smith , the Smith Court reversed and remanded for a hearing "including, but not limited to the Burk criteria[.]").

¶10 As to the Finger factors and related equitable considerations, even Father admits the "outcome of the [underlying] case" and the "means and property of the [Father]" were forwarded below in support of the attorney fee request. Moreover, in addition to evidence presented showing Father has some ability to pay, counsel for Mother stated at the attorney fee hearing that "this [i.e., the underlying proceeding involving the insurance issue] was such a simple case," yet "[Father] has not been at all economical in this entire case"-"[i]t's been a waste of my client's time and money and mine too." The trial court agreed, stating, "[T]he Court will find that [Father] ... delayed it," and the trial court further stated,

Bottom line is the insurance plan, the numbers speak for themselves, and it was just an unnecessary process to just look at the insurance plan. And it sets out what the different plans are, the costs, and what the costs is for employee, employee plus children, and it has it separated out, it's clear on its face[.]

¶11 The trial court in this case properly undertook a judicial balancing of the equities consistent with § 110(D) & (E). Consequently, we affirm the trial court's order.

CONCLUSION

¶12 Under § 110(D) & (E), the determination as to entitlement to fees, and the determination of the ultimate amount that is "just and proper under the circumstances," are equitable determinations that require a judicial balancing of the equities. However, the ultimate determination as to the proper amount of reasonable fees to be awarded to one party-although an equitable determination-cannot be properly made if the trial court is equipped only with an uncertain and disputed amount of total reasonable fees from which to make the equitable award. For this reason, we agree that Burk retains the role under § 110 specified herein. However, because Father did not specifically challenge the reasonableness of the fee sought by Mother, no error occurred in failing to apply the Burk factors in advance of the ultimate equitable determination. Accordingly, we affirm.

¶13 AFFIRMED .

RAPP, J., and GOODMAN, J., concur.

      Mother was also awarded costs resulting in a total award of $2,409.14.

      As explained by the Oklahoma Supreme Court, "In determining whether to award attorney fees, the trial court should consider what is just and equitable after taking into account the means and property of each party. A party should be awarded attorney fees only if they qualify for the benefit through a judicial balancing of the equities." Childers v. Childers , 2016 OK 95, ¶ 29, 382 P.3d 1020 (footnotes omitted). See also Boatman v. Boatman , 2017 OK 27, ¶ 17, 404 P.3d 822 ("In matrimonial litigation, a party should be awarded attorney fees only if they qualify for the benefit through a judicial balancing of the equities considering the means and property of each party." (footnote omitted) ).

      "On appeal, this Court will not presume error. The appellant must affirmatively show the alleged error from the record on appeal. Otherwise, this Court will presume that no prejudicial error was committed by the trial court." Fleck v. Fleck , 2004 OK 39, ¶ 12, 99 P.3d 238 (citation omitted).

      See Finger v. Finger , 1996 OK CIV APP 91, 923 P.2d 1195, where this Court explained:
      In considering what is just and proper under the circumstances, the court in the exercise of its discretion should consider the totality of circumstances leading up to, and including, the subsequent action for which expenses and fees are being sought. Such circumstances should include, but not be limited to: the outcome of the action for modification; whether the subsequent action was brought because one of the parties had endangered or compromised the health, safety, or welfare of the child or children; whether one party's behavior demonstrated the most interest in the child or children's physical, material, moral, and spiritual welfare; whether one party's behavior demonstrated a priority of self-interest over the best interests of the child or children; whether either party unnecessarily complicated or delayed the proceedings, or made the subsequent litigation more vexatious than it needed to be; and finally, the means and property of the respective parties.
      Id. ¶ 14. Finger was cited with approval in Abbott v. Abbott , 2001 OK 31, ¶ 11, 25 P.3d 291.

      State ex rel. Burk v. City of Okla. City , 1979 OK 115, 598 P.2d 659.

      In fact, over the past twenty years the Oklahoma Supreme Court has consistently avoided any mention of, or citation to, Burk in the context of reviewing challenges to § 110 attorney fee awards. See Childers v. Childers , 2016 OK 95, 382 P.3d 1020 ; Foshee v. Foshee , 2010 OK 85, 247 P.3d 1162 ; Nichols v. Nichols , 2009 OK 43, 222 P.3d 1049 ; Kerby v. Kerby , 2007 OK 36, 164 P.3d 1053 ; King v. King , 2005 OK 4, 107 P.3d 570 (Burk cited in dissent only); Fulsom v. Fulsom , 2003 OK 96, 81 P.3d 652 ; McCabe v. McCabe , 2003 OK 86, 78 P.3d 956 ; Merritt v. Merritt , 2003 OK 68, 73 P.3d 878 ; Casey v. Casey , 2002 OK 70, 58 P.3d 763 ; Jackson v. Jackson , 2002 OK 25, 45 P.3d 418 ; Daniel v. Daniel , 2001 OK 117, 42 P.3d 863 ; Abbott v. Abbott , 2001 OK 31, 25 P.3d 291 ; Jackson v. Jackson , 1999 OK 99, 995 P.2d 1109 ; Larman v. Larman , 1999 OK 83, 991 P.2d 536 ; and Stepp v. Stepp , 1998 OK 18, 955 P.2d 722. Interestingly, the sole exception to these cases is a recent Supreme Court decision addressing this issue-Boatman v. Boatman , 2017 OK 27, 404 P.3d 822. However, the Boatman Court mentioned Burk only in the process of setting forth the arguments of the parties. The Boatman Court stated:
      In a separate companion case, Mother argues that the trial court erred because it "summarily addressed" the awarding of fees from the bench without holding a Burk hearing. State ex rel. Burk v. City of Oklahoma City , 1979 OK 115, ¶ 3, 598 P.2d 659, involved the "equitable fund doctrine," which posits that attorneys who succeed in creating or preserving a fund [through] litigation have a right to receive fees paid from the fund. It set out criteria to help judges determine the reasonableness of attorney fees. Mother culled a line from the opinion which stated that "the trial court should set forth with specificity the facts, and computation to support his award," and seems to argue that anytime a judge does not make findings on the record regarding hours spent and reasonable hourly rates in a "Burk hearing," reversal is warranted.
      Boatman , ¶ 15 (footnotes omitted). In the remainder of its analysis, the Boatman Court neither mentioned nor cited Burk , and, at least impliedly, appears to have rejected the party's arguments that, as a matter of law, a Burk hearing must be held in determining § 110 fee requests and that Burk findings must be made. See Boatman , ¶¶ 16-17.

      After all, § 110 allows only for "such reasonable expenses of the other[.]" (Emphasis added.)

      See also Robert G. Spector & Carolyn S. Thompson, The Law of Attorney Fees in Family Law Cases , 69 Okla. L. Rev. 663, 679-82 (Summer 2017), and Robert G. Spector, Oklahoma Family Law-The Handbook 179-182 (2018).

      Citing Finger , a United States Bankruptcy Appellate Panel for the Tenth Circuit articulated the law in Oklahoma as follows:
      An award of attorney fees in a divorce proceeding depends on what is just and proper under the circumstances, including, but not limited to, the outcome of the action, the reason for the action, the parties' behavior with regard to the welfare of their children, whether either party unnecessarily complicated or delayed the proceedings or made the litigation more vexatious than it needed to be, and the means and property of the parties.
      In re Lowther , 266 B.R. 753, 758-59 (10th Cir.BAP 2001), aff'd , 321 F.3d 946 (10th Cir. 2002).

      Father did argue below to the effect that the absence of any analysis of the Burk factors in Mother's motion, by itself, constituted error. Father argued at the hearing that the "attorney fee motion is facially invalid" because it "does not address the Burk factors, which are required by law to determine reasonableness." However, although this argument raises a legal question as to the proper application of § 110, it does not constitute a specific challenge under the Burk factors to the reasonableness of the total fee sought by Mother. Father also argues that Mother was awarded attorney fees for "issues that [Mother's] counsel created." At first glance, this argument appears to constitute a challenge under Burk to the reasonableness of the total number of hours sought by Mother. However, even taking Father's assertions as true in this regard-that a hearing date had to be continued in order to avoid a statutory or constitutional violation-Father framed this challenge as an equitable argument at the hearing below, stating, "I think it's inequitable to bill him for that." Moreover, at the end of this section of Father's appellate brief, he states: "The hearing was moved, and [Mother] did not this time seek the fees associated with moving the hearing." Br.-in-chief at 22 (emphasis added).

      As to whether Father unnecessarily delayed the proceedings, we note that this factor was analyzed below in the context of a judicial balancing of the equities. It was not made under the rubric of a trial court's inherent equitable power to sanction a party for "vexatious and wanton behavior" as suggested by Father in his appellate brief.

      Of course, as set forth above, the trial court awarded Mother all of her requested fees. This determination is not, as a matter of law, inconsistent with a judicial balancing of the equities. To the extent Father is raising more than this legal issue pertaining to the proper interpretation of § 110, and is also attacking the factual basis of the award, the trial court is granted discretion in this regard and its decision will not be overturned unless "its decision has no rational basis in evidence." Childers , 2016 OK 95, ¶ 28, 382 P.3d 1020 (footnote omitted). The following equitable factors weigh in favor of awarding attorney fees to Mother: whether either party unnecessarily complicated or delayed the proceedings or made the subsequent litigation more vexatious than it needed to be; the means and property and ability of Father to pay; the outcome of the underlying action; and the totality of circumstances leading up to and including the subsequent action for which expenses and fees are being sought. Finger , ¶ 14. We conclude the trial court's decision to award Mother all of the reasonable attorney fees expended in these proceedings is supported by the equities and is not without any rational basis in the evidence.


author: OPINION BY JERRY L. GOODMAN, JUDGE:

text:
    Mista BURGESS, Plaintiff/Appellant, v. The STATE of Oklahoma, EX REL OKLAHOMA DEPARTMENT OF ENVIRONMENTAL QUALITY, and the State of Oklahoma, ex rel Oklahoma Merit Protection Commission, Defendants/Appellees.
    Case No. 115,428
    Court of Civil Appeals of Oklahoma, Division No. 4.
    FILED MAY 16, 2018 Mandate Issued: January 30, 2019
    Mark Hammons, Leah Roper, HAMMONS, GOWENS, HURST & ASSOCIATES, Oklahoma City, Oklahoma, for Plaintiff/Appellant
    Mike Hunter, OKLAHOMA ATTORNEY GENERAL, Kimberly Heaton, Gary Henry, ASSISTANT ATTORNEYS GENERAL, Oklahoma City, Oklahoma, for Defendants/Appellees
   OPINION BY JERRY L. GOODMAN, JUDGE:

¶1 Mista Burgess (Burgess) appeals from a September 28, 2016, order of the district court affirming an order of the Oklahoma Merit Protection Commission (MPC). Based on our review of the facts and applicable law, we affirm.

BACKGROUND

¶2 Burgess was a 16-½ year unclassified employee of the Oklahoma Department of Environmental Quality (DEQ) when she was discharged from employment on May 15, 2014. Prior to discharge, Burgess had received "Exceeds Standards" on seven of her last ten Performance Evaluations and was deemed "multi-talented and very competent." However, General Counsel Martha Penisten (Penisten) and Deputy General Counsel Sarah Penn (Penn) assert that for some time prior to Burgess' discharge there was a strained working relationship, noting Burgess undermined them by going around them to the Executive Director Steve Thompson and Deputy Director Jimmy Givens. Burgess was apparently close or favored by the Executive Director Steve Thompson, Deputy Director Givens, and Director of Administrative Services, Wendy Caperton, a known close friend.

¶3 Steve Thompson subsequently retired and in December of 2013, Scott Thompson (Thompson) was appointed as Executive Director. Thompson reassigned Burgess to a new division, the Land Protection Division, and demoted Caperton. Prior to her demotion, and in her previous role as agency liaison on budgetary matters, Caperton had become friends with Representative Don Armes, a member of the House Appropriations and Budget Committee and chairman of its subcommittee on Natural Resources and Regulatory Services, under which appropriations subcommittee DEQ fell. As a result of Caperton's close friendship, Burgess got to know Representative Armes as well.

¶4 Beginning in December of 2013, Burgess and Caperton began communicating with Representative Armes about DEQ's budget for the fiscal year 2014-2015. Burgess asserts she revealed to Representative Armes that the DEQ Water Quality Division had misrepresented in the 2013-2014 budget the number of full-time employees (FTEs) needed to implement the Public Water Supply Program (PWS), that the number was intentionally inflated, and that DEQ had no intention of hiring the number of personnel budgeted.

¶5 DEQ disputes 1) that it misrepresented or inflated the funding or number of FTEs in the 2013-2014 budget; and 2) that Burgess never mentioned the FTE issue to Representative Armes, citing her own statement: "[t]hey were talking to me about the PWS fees and the only thing I ever said was that they don't need that extra 1.5 million in extra appropriation. That's all I ever said." Rather, DEQ asserts Burgess, Caperton, and Representative Armes were involved in a plan to obtain extensive budget cuts to DEQ's 2014-2015 budget to exact revenge for their demotion, transfer, salary cuts, and other perceived slights. A DEQ investigator tape recorded conversations with Burgess where they discussed communications with Representative Armes and cuts to DEQ's budget. These cuts included a $12.5 million cut that would be over and above the standard cuts other agencies were going to receive. Burgess made the comment that she "thought we were fighting for one or two million dollars to be taken," "[t]o help, what, bring down the house?," "They've stolen ... Don [Armes] is screwing over DEQ. He's screwing them hard and royal. This is his last hoorah," and "that would be sweet revenge for me if that were just-if I could work for [the Oklahoma Municipal League], I don't think there'd be a better place for me-I mean, this just couldn't be a better place to perfect my revenge."

¶6 On or about May 7, 2016, Burgess' supervisors recommended her termination to Thompson. DEQ asserts they terminated Burgess for dishonest, insubordinate, inappropriate, and disruptive behavior after her transfer to the new division. Burgess was discharged on May 15, 2014. After her discharge, DEQ found a January 17, 2014, email, with a scanned copy of handwritten notes, from Burgess to Representative Armes with questions that he could ask Thompson and Water Quality Division Director Chard-McClary during a budget hearing with Representative Armes to discredit and hurt the agency. It also included unflattering personal characterizations of them to "knock [them] off kilter" during the hearing.

¶7 Burgess appealed her discharge to the MPC, asserting she was unlawfully terminated in violation of the Oklahoma Whistleblower Act, 74 O.S.2011, § 840-2.5. The case was assigned to an administrative law judge (ALJ). A hearing was held on September 22, 23, and October 6 and 7, 2015. By order issued on January 7, 2016, the ALJ issued findings of fact and conclusions of law. The ALJ found:

1. There is insufficient evidence to find that [Burgess] communicated to Rep. Armes her belief that DEQ had intentionally budgeted for more FTE in FY 2013-2014 than they intended to hire.
2. The evidence is sufficient to find that [Burgess] was involved in a conspiracy with Wendy Caperton and Rep. Don Armes to harm DEQ by imposing deep budgetary cuts in FY 2014-2015.
3. There is insufficient evidence to find that [Burgess'] communications to Rep. Armes were protected activities as provided by the Whistleblower Act.
4. There is insufficient evidence to find [Burgess'] discharge was the result of any protected communications in violation of the Whistleblower Act.
5. There is insufficient evidence to find that the discharge of [Burgess] by Scott Thompson for loss of confidence and loss of trust is a pretext to cover up a prohibited activity by [DEQ].

¶8 The ALJ ultimately denied Burgess' petition and upheld her discharge from employment. Burgess filed a petition for review in the Oklahoma County District Court on February 1, 2016. By order entered on September 28, 2016, the district court affirmed the MPC order. Burgess appeals.

STANDARD OF REVIEW

¶9 An appellate court may not disturb an order of an administrative agency unless it is erroneous under 75 O.S.2011, § 322. Oklahoma Corp. Comm'n v. Bauer , 1997 OK CIV APP 83, ¶ 5, 951 P.2d 124, 126. Title 75 O.S.2011, § 322(1) provides a court may set aside, modify, or reverse an administrative order if it "determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions, are":

(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, ... including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or
(f) arbitrary or capricious; or
(g) because findings of fact, upon issues essential to the decision were not made although requested.

Section 322(3) provides that "the reviewing court shall affirm the order and decision of the agency, if it is found to be valid and the proceedings are free from prejudicial error to the appellant."

¶10 In Tulsa Area Hosp. Council, Inc. v. Oral Roberts Univ. , 1981 OK 29, ¶ 10, 626 P.2d 316, 320, the Oklahoma Supreme Court stated:

Great weight is to be accorded the expertise of an administrative agency, and a presumption of validity attaches to the exercise of expertise when the administrative agency is reviewed by the judiciary. A court of review may not substitute its own judgment for that of an agency, particularly in the area of expertise which the agency supervises .... If the facts determined by the administrative agency are supported by substantial evidence, and the order is otherwise free of error, the decision of the agency must be affirmed.

"On appeal from an administrative decision, the appellate courts, whether the District Court, the Court of Civil Appeals or the Supreme Court, apply the same standards of review directly to the administrative record." Bauer , 1997 OK CIV APP 83, at ¶ 5, 951 P.2d at 126.

ANALYSIS

¶11 On appeal, Burgess contends the district court erroneously affirmed the MPC, asserting the ALJ made various legal and factual errors in the January 7, 2016, order. Those assertions of error will be combined and discussed as follows.

1. General Discussions with Representative Armes

¶12 Burgess contends she had general communications with Representative Armes that are protected under Oklahoma's Whistleblower Act. Burgess maintains protection is not limited to specific statements under the Act. Title 74 O.S.2011, § 840-2.5 provides:

A. This section shall be known and may be cited as the "Whistleblower Act". The purpose of the Whistleblower Act is to encourage and protect the reporting of wrongful governmental activities and to deter retaliation against state employees for reporting those activities. No conviction of any person shall be required to afford protection for any employee under this section.
B. For purposes of this section, "agency" means any office, department, commission or institution of the state government. No officer or employee of any state agency shall prohibit or take disciplinary action against employees of such agency, whether subject to the provisions of the Merit System or in unclassified service, for:
1. Disclosing public information to correct what the employee reasonably believes evidences a violation of the Oklahoma Constitution or law or a rule promulgated pursuant to law;
2. Reporting a violation of the Oklahoma Constitution, state or federal law, rule or policy; mismanagement; a gross waste of public funds; an abuse of authority; or a substantial and specific danger to public health or safety;
3. Discussing the operations and functions of the agency, either specifically or generally, with the Governor, members of the Legislature, the print or electronic media or other persons in a position to investigate or initiate corrective action; or
4. Taking any of the above actions without giving prior notice to the employee's supervisor or anyone else in the employee's chain of command.

¶13 Burgess notes the ALJ found she "had discussions and other communications with Rep. Armes concerning the agency's budget for fiscal year 2014-2015." However, she contends the ALJ erroneously found there was insufficient evidence that these communications were protected activities under the Act. Burgess maintains the ALJ erroneously construed § 840-2.5(B)(3) of the Act, as it is clear she was discussing the operations and functions of the agency with a member of the Legislature. Burgess contends § 840-2.5(B)(3) does not require that the discussions with the Legislature be about an illegal action, misuse of funds, or any other specific misconduct. Rather, the Act protects general discussions with Legislators.

¶14 DEQ disagrees, asserting the Act must be construed as a whole. DEQ notes the purpose of the Act is "to encourage and protect the reporting of wrongful governmental activities and to deter retaliation against state employees for reporting those activities." Id . at § 840-2.5(A). Thus, DEQ maintains that to be entitled to protection under the Act, one must be engaged in the reporting of wrongful governmental activities. DEQ asserts that Burgess was not reporting wrongful governmental activity to Representative Armes but rather was engaged in a plan with Representative Armes and Caperton to damage DEQ's budget.

¶15 Statutory construction presents a question of law. Blitz U.S.A., Inc. v. Oklahoma Tax Commission , 2003 OK 50, ¶ 6, 75 P.3d 883, 885. "The goal of any inquiry into the meaning of a legislative act is to ascertain and give effect to the intent of the legislature." Id . at ¶ 14, 75 P.3d at 888. The Legislature "is presumed to have expressed its intent in a statute's language and to have intended what the text expresses." Id . Intent is ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each. Keating v. Edmondson , 2001 OK 110, ¶ 8, 37 P.3d 882, 886. The Court presumes that the Legislature expressed its intent and that it intended what it expressed. Id . Statutes are interpreted to attain that purpose and end, championing the broad public policy purposes underlying them. Id ."Where a statute is plain and unambiguous, it will not be subject to judicial construction, but will be given the effect its language dictates." Blitz U.S.A., Inc. , at ¶ 14, at 888. "Only where the intent cannot be ascertained from a statute's text, as occurs when ambiguity or conflict (with other statutes) is shown to exist, may rules of statutory construction be employed." Id .

¶16 Title 74 O.S.2011, § 840-2.5 is the Legislature's pronouncement on Oklahoma's public policy regarding whistleblowers. The plain, clear, unmistakable, unambiguous, and unequivocal language of § 840-2.5 clearly provides that the stated purpose of the Act is to encourage and protect the reporting of wrongful governmental activities and to deter retaliation against state employees for reporting these activities. Id . at § 840-2.5(A). Therefore, general discussions, even those with a Legislator, which do not report wrongful governmental activities, are not protected by the Act. Accordingly, the ALJ correctly found Burgess' general discussions with Representative Armes are not protected communications under the Act.

2. Specific Discussions with Representative Armes

¶17 For her next assertion of error, Burgess contends the ALJ erred in limiting consideration of her protected communication to a single statement. Burgess further contends the ALJ erroneously required her to corroborate her testimony, imposing unequal standards on her evidence as compared to DEQ's. DEQ disagrees, asserting the ALJ weighed the evidence and determined Burgess did not meet her burden of proof.

¶18 Specifically, Burgess argues she was terminated for having discussions with Representative Armes regarding DEQ's budget or the FTE issue. Burgess testified she had general communications with Representative Armes concerning DEQ's budget as well as specific communications regarding the inaccurate FTE numbers submitted by DEQ in its 2013-2014 fiscal year budget. Burgess asserted DEQ requested 10 new FTE's to implement the PWS program, that the number was intentionally inflated, and that it had no intention of hiring the number of personnel budgeted.

¶19 DEQ, conversely, asserts it terminated Burgess for dishonest, insubordinate, inappropriate, and disruptive behavior after her transfer to the new division. DEQ presented evidence that it had not presented inaccurate FTE numbers to the Legislature and had in fact only requested 4 new FTE's in the budget. In addition, Thompson specifically denied knowledge of the FTE issue or the specific content of the alleged protected statement Burgess made to Representative Armes. Finally, DEQ presented evidence that Burgess, Representative Armes, and Caperton were involved in a plan to harm DEQ and to obtain extensive budget cuts to DEQ's 2014-2015 budget to exact revenge for their demotion, transfer, salary cut, and other perceived slights.

¶20 The ALJ specifically found that "there [was] insufficient evidence to find that [Burgess] communicated to Rep. Armes her belief that DEQ had intentionally budgeted for more FTE in FY 2013-2104 than they intended to hire." The ALJ's order does reference that Burgess presented no corroborative evidence to support her assertion that she informed Representative Armes of the FTE issue. However, a review of the order provides the ALJ carefully reviewed and weighed the evidence presented. The ALJ noted Burgess never mentioned the FTE issue during her conversations with a DEQ investigator, instead expressing concerns that she did not have a bigger role in the $12.5 million budget cut, in "hurting" the agency, in "bringing down the house," in "screwing over DEQ," and her "sweet revenge" against DEQ. Further, the ALJ found the evidence supported Thompson's testimony that he had no knowledge of any issue with the FTE count in the 2013-2014 budget until after Burgess was discharged or that Burgess informed Representative Armes of any issue.

¶21 We find no error. After reviewing the appellate record, we cannot find the ALJ's rulings were clearly erroneous in view of the evidence produced at the hearing. Although there was conflicting evidence on issues of fact, there is substantial evidence supporting the ALJ's findings. "An appellate court may not substitute its judgment for that of the agency on the latter's factual determinations," and "[a]n agency's order will be affirmed if the record contains substantial evidence in support of the facts upon which the decision is based, and if the order is otherwise free of error." Oklahoma Department of Public Safety v. McCrady , 2007 OK 39, ¶ 10, 176 P.3d 1194, 1200-1201 (footnotes omitted). The ALJ may draw reasonable inferences and can refuse credence to any portion of testimony deemed unworthy of belief. Under the APA, this Court may set aside the ALJ's decision only if we determine one or more of the grounds listed in 75 O.S.2011, § 322 are shown, and we may not disturb the decision "unless our review leads us to a firm conviction (the agency) was mistaken." Carpenters Local Union No. 329 v. State ex rel. Dept. of Labor , 2000 OK CIV APP 96, ¶ 3, 11 P.3d 1257, 1259. Based upon our review of the record, we do not find any of the grounds listed in § 322 to be present. This assertion of error is therefore denied.

3. Causation

¶22 Burgess further argues the ALJ erred in failing to apply the proper analysis of causation. Initially, Burgess contends O.A.C. 455:10-3-6(b)(3) sets forth the correct standard of causation to be used by the ALJ. This section provides:

Sufficient evidence or information shall be provided which causes the Executive Director to believe there is a causal connection between the alleged protected activity and the disciplinary action. For purposes of this section, causal connection means such evidence or information which shows that the disciplinary action was taken in relationship to the alleged protected activity.

¶23 This section specifically addresses the standard of review the Executive Director of the MPC applies in determining whether sufficient evidence exists to conclude a violation may have occurred and to permit an appeal to precede through the MPC system. As the ALJ correctly noted, this is similar to a preliminary hearing.

¶24 Burgess further contends the ALJ wrongly believed retaliation needed to be the sole factor instead of simply one factor, a significant factor. Burgess relies on several Oklahoma cases which utilize the significant factor test to determine whether an employer's actions were retaliatory. See e.g., Vasek v. Board of Cnty. Comm'rs. , 2008 OK 35, 186 P.3d 928. We, however, do not believe it is necessary to engage in lengthy analysis regarding causation, because our task is to determine whether there is substantial evidence supporting the ALJ's conclusion that Burgess' discharge was not the result of a protected communication.

¶25 In the present case, Burgess had the burden of proving she made a protected communication under the Act, that she was disciplined, and was disciplined as a result of making that protected communication. See 74 O.S.2011, § 840-2.5 ; O.A.C. 455: 10-9-2(f)(2). Burgess essentially asks this Court to adopt a new test, i.e. , whether the protected communication was a significant factor in her discipline. We decline to do so. This is a function of the Legislature.

¶26 In the present case, the ALJ found the evidence supported Thompson's loss of trust and confidence in Burgess to be based upon information received from the DEQ investigator. The investigator first came to Thompson in January of 2014 with information that Caperton and Representative Armes planned to use his position to ravage DEQ's budget as revenge for Caperton's demotion and salary cut. The investigator subsequently learned of Burgess' involvement in the plan. Based on the evidence presented, the ALJ found there was sufficient evidence to find that Burgess was involved in a conspiracy with Caperton and Representative Armes to harm DEQ's budget. Accordingly, the ALJ found "[t]here [was] insufficient evidence to find that [Burgess'] discharge was the result of any protected communications in violation of the Whistleblower Act." She further found there was "insufficient evidence to find that the discharge of [Burgess] by Scott Thompson for loss of confidence and loss of trust [was] a pretext to cover up a prohibited activity by [Burgess]."

¶27 We find no error. After reviewing the appellate record, we cannot find the ALJ's ruling was clearly erroneous in view of the evidence produced at the hearing. The ALJ's findings and conclusions are thorough and supported by the evidence. This assertion of error is therefore denied.

4. Defenses

¶28 Finally, Burgess contends the ALJ erroneously found a conspiracy, a defense not recognized under the Act. Burgess contends the defenses to liability are set forth in § 840-2.5(C).

Any person who has authority to take, direct others to take, recommend or approve any personnel action shall not take or fail to take any personnel action with respect to any employee for filing an appeal or testifying on behalf of any person filing an appeal with the Oklahoma Merit Protection Commission. This section shall not be construed as prohibiting disciplinary action of an employee who discloses information which the employee:
1. Knows to be false;
2. Knowingly and willfully discloses with reckless disregard for its truth or falsity; or
3. Knows to be confidential pursuant to law.

¶29 DEQ disagrees, noting it did not plead a conspiracy defense. Rather, the ALJ, after reviewing the totality of the evidence, determined that Burgess was conspiring with Representative Armes and Caperton to harm DEQ and its budget.

¶30 We have reviewed the record. We do not find that the ALJ relied on an improper defense. Rather, upon her review of the evidence, the ALJ determined that Burgess did not meet her burden of proving she had a protected communication with Representative Armes and that she was discharged as a result of that communication. Rather, the evidence established that Burgess was involved in a plan to harm DEQ and its budget. As we have previously discussed, there is substantial evidence in the record to support the ALJ's determination.

¶31 Having reviewed the record in totality, we find no basis upon which to reverse the MPC's order. Accordingly, the district court's September 28, 2016, order affirming the MPC's order is proper and is affirmed.

¶32 AFFIRMED .

BARNES, P.J., and RAPP, J., concur.

      Under the prior executive director, Burgess had worked on the agency's annual budget and was responsible for coordinating with all DEQ divisions and pulling together the needed funding and personnel positions required for the agency's 2013-2014 fiscal year budget. Thompson did not assign Burgess to work on the 2014-2015 budget.

      The State budget was released on May 16, 2014, and DEQ's budget was cut by over 20%, including $1.5 million appropriation previously received to allow DEQ to administer the PWS program, a 5.5% budget cut received by most agencies, and an additional $12 million taken from the agency's revenue account.

      Some of these behaviors included: 1) Burgess insisted on preparing a Notice of Violation even though instructed by Thompson to prepare an Order, and bypassed her supervisor to convince Deputy Director Givens this was the correct course; and 2) Burgess attempted to sabotage a fellow attorney.

      Burgess further raises the "same result defense," asserting it is also an improper defense under the Act. However, Burgess acknowledges that DEQ did not plead and the ALJ did not rely on this defense in its order. Accordingly, this defense will not be discussed.

      Burgess' request to strike DEQ's answer brief is denied.