source: Caselaw Access Project

author: KAUGER, J.

license: Public Domain

text:
    2003 OK 18
    INDEPENDENT SCHOOL DISTRICT NO. I-20 OF MUSKOGEE COUNTY, Plaintiff/Appellee, v. OKLAHOMA STATE DEPARTMENT OF EDUCATION, Defendant/Appellant.
    No. 95,684.
    Supreme Court of Oklahoma.
    March 4, 2003.

      D.D. Hayes, Muskogee, OK, for Plaintiff/Appellee.
    Kay Harley, General Counsel, Department of Education, Oklahoma City, OK, Scott D. Broughton, Assistant Attorney General, Oklahoma City, OK, for Defendant/Appellant.
   KAUGER, J.

¶ 1 We granted certiorari to address three issues: 1 whether the State Department of Education may withhold future payments to a school district pursuant to 70 O.S.2001 § 18-118 to recoup funds which it overpaid because of a computer error; 2) whether recovery of the overpayment would violate the constitutional debt limitations of the Okla. Const, art. 10, § 26; and 3) whether venue is proper in the county where the school district is located. We hold that: 1) pursuant to 70 O.S.2001 § 18-118, the State Department of Education may withhold future payments to a school district to recoup funds which it overpaid because of a computer error; 2) the constitutional debt limitations of the Okla. Const, art. 10, § 26 do not preclude the Department’s recovery of the overpayment; and 3) venue is proper in the county where the school district is located.

FACTS

¶ 2 Title 70 O.S.2001 § 18-118 provides for the recoupment of state monies which have been “illegally apportioned to, or illegally disbursed or expended by,” a school district. School districts receive state aid from money appropriated by the Legislature and allocated by the appellant, the State Department of Education (Department). A large factor in determining the amount of state aid a school district receives is the average daily membership of the school district. This cause concerns a dispute over the application of § 18-118 to school districts which mistakenly report inflated attendance figures as a result of computer errors.

¶ 3 Since 1988, the appellee, the Independent School District No. 1-20 of Muskogee County (school district/district) has used computer software provided by National Computer Systems (NCS) to compute student statistical attendance reports which are used to determine the district’s average daily membership. The software is approved for use by the Department. In February of 1996, NCS sent the school district an upgrade for the computer software which was intended to improve reported errors in the student attendance software program. The district installed the upgrade on April 10, 1996.

¶4 Apparently unbeknownst to the district, the upgrade created a glitch which erroneously changed how the software calculated the district’s annual statistical reports. On May 24, 1996, NCS sent the district another upgrade which could have corrected problems caused by the first upgrade. However, this upgrade was not installed on the system until after the district ran the annual statistical reports which were used by the Department to calculate the district’s average membership. Consequently, the district’s annual statistical report, which was produced for filing at the end of May in 1996, showed inflated student attendance numbers.

¶ 5 Because state aid is calculated, in part, by using the higher of the past two years’ average daily membership figures of a school district, the district received additional state aid in both the 1996-97 and the 1997-98 school years based on the erroneously inflated attendance figures. According to the Department, the overpayment totaled $3,551,356.00.

¶ 6 Sometime in early 1998, the Department became aware that the school district had received a large increase in state aid. The Department asked the State Auditor and Inspector to audit the school district’s attendance figures for the years involved. On August 11, 1998, the State Auditor released the audit which confirmed inflated attendance figures. The Department verified the State Auditor’s figures and requested a formal opinion from the Attorney General asking for a determination of: 1) whether the Department was obligated to recover the excess money paid to the school district; and 2) whether the OHa. Const, art. 10, § 26 prohibited recovery of a previous year’s overpayment.

¶7 On July 20, 1999, in response to the inquiry, the Attorney General issued Opinion No. 99-36, holding that: 1) the Department has an affirmative obligation to recover a prior year overpayment of state aid once it is verifies that an overpayment has occurred; and 2) because the recoupment statute, 70 O.S.2001 § 18-118, does not require any tax levy to satisfy a prior year’s obligation, it is not the type of debt precluded by the OHa. Const, art. 10, § 26. On January 20, 2000, the State Board of Education (Board) met to discuss the Attorney General’s opinion, the audit, and overpayment. The school district attended the meeting and read a statement from their legal counsel which expressed opposition to the Attorney General’s opinion. The Board voted to follow the Attorney General’s opinion and it adopted a ten-year re-coupment plan for withholding future state aid to recover the overpayment that was made to the school district.

¶8 Subsequently, the school district requested a hearing pursuant to the Administrative Procedures Act. On March 1, 2000, the Department denied the request for a hearing, arguing that: 1) no rule was promulgated; 2) the only action that was taken was to approve a ten-year repayment plan; and 3) it was bound to follow the Attorney General’s opinion. The school district filed an action in the district court of Muskogee County on March 8, 2000. It alleged that it was entitled to a declaratory judgment pursuant to 75 .O.S.2001 § 306 of the Oklahoma Administrative Procedures Act (the Act) and judicial review of the order, decision, rule or policy of the Department pursuant to §§ 307 and 318 of the Act. The school district argued that 70 O.S.2001 § 18-118 is inapplicable when overpayments to a school district are caused by a computer error, and alternatively, if § 18-118 were applicable, recouping the money is a violation of art. 10, § 26 of the Oklahoma Constitution.

¶ 9 The Department sought to dismiss the action, arguing that venue was not proper in Muskogee County. On June 12, 2000, the trial court entered an order establishing venue in Muskogee County. A non-jury trial was held on November 17, 2000; and on December 1, 2000, the trial court entered judgment for the school district. The Department appealed, and on September 10, 2002, the Court of Civil Appeals affirmed in part and vacated in part. We granted certio-rari on November 18,2002.

I.

¶ 10 PURSUANT TO 70 O.S.2001 § 18-118, THE STATE DEPARTMENT OF EDUCATION MAY WITHHOLD FUTURE PAYMENTS TO A SCHOOL DISTRICT TO RECOUP FUNDS WHICH IT OVERPAID BECAUSE OF A COMPUTER ERROR.

¶ 11 Title 70 O.S.2001 § 18-118 requires the Board to audit the funds of public school districts, and it provides for joint and several liability of school district officers and employees who divert state money from the purpose for which it was apportioned. The statute also provides that if an audit discloses that state monies have been “illegally apportioned to, or illegally disbursed or expended by, a school district or any of its officers or employees,” the Board must either demand that the money be returned or it must withhold the unreturned amount from subsequent allocations of state funds.

¶ 12 The school district argues that there is no evidence of any bad faith, dishonesty, wrongdoing, fraud or malice on the part of the school district’s officers or employees, thus the Board has no authority under § 18-118 to recoup state money which was disbursed as a result of a computer error. The Department asserts that: 1) the overpayment was illegally apportioned because the district received funding for which it did not qualify under the law; and 2) it is under an affirmative duty to recover state monies which have been illegally apportioned regardless of how the overpayment occurred. It also msists that allowing the district to keep the erroneous apportionment would be tantamount to the state making a gift to the school district in violation of art. 10, § 15 of the Okla. Const.

¶ 13 In determining whether a statute applies to a given set of facts, we focus on legislative intent which controls statutory interpretation. Intent is generally ascertained from the whole act, considering its general purpose and objective. Relevant portions of an act are considered together, wherever possible, to give full force and effect to each other. When statutory intent cannot be ascertained from the statutory language, ie., in cases of ambiguity or conflict, rules of statutory construction are employed.

¶ 14 The purposes of the state aid program include providing the best possible educational opportunities to every child in Oklahoma and creating a beneficial use of public funds expended for education. Funds are to be apportioned objectively, and state support should work to assure equal educational opportunities among the school districts. Article 18 of the Oklahoma School Code (the Code) is to be liberally construed to attain these goals.

¶ 15 The State Department of Education, through the State Board of Education, is responsible for administration of the public school system in the state. The Board is responsible for apportioning and disbursing annual appropriations to school districts which meet qualifications to receive state aid. If the Board ascertains that any of the factors on which apportionment or allocations are based have changed so as to disqualify the district or reduce its aid, the Board has an affirmative duty to adjust the apportionment or collect an overpayment. Forfeiture of state aid and recovery of overpay-ments are governed by 70 O.S.2001 §§ 18-116-118.

¶ 16 Section 18-116 provides penalties for knowing and wilful violations of the state aid program of the Code. Section 18-117 pro-Mbits the Board from knowingly maMng ap-portionments or disbursements which are not authorized by law. While §§ 18-116 and 18-117 specifically refer to knowing and wilful violations, such language is absent in § 18-118. Rather, the Legislature used the terms “illegally apportioned to, or illegally disbursed or expended.” Had the Legislature intended for the Department to only recoup overpayments which were the result of knowing and wilful conduct, it could have used the same language that it used in §§ 18-116-117—the Legislature neglected to do so.

¶ 17 The Code sets forth calculations for determining eligibility, apportionment and disbursement of state aid which rely on accurate attendance figures. Any funding that a school district receives which was based on erroneous calculations for whatever reason would have been received contrary to the state aid statutes and formulas. In our view, the Legislature intended, by the use of the words, “illegally apportioned or disbursed,” to mean contrary to the state aid statutes and formulas. This interpretation is consistent with the purposes of the Code as a whole, and the function of the Department. Consequently, we hold that § 18-118 applies to overpayments which were made as a result of computer errors.

II.

¶ 18 THE CONSTITUTIONAL DEBT LIMITATIONS OF THE OKLA. CONST. ART 10, § 26 DO NOT PRECLUDE THE DEPARTMENT’S RECOVERY OF THE OVERPAYMENT.

¶ 19 The school district argues alternatively that if § 18-118 applies to the facts of this cause, the Department would be recouping money paid in a prior fiscal year. Consequently, recovery of an overpayment would violate the constitutional debt limitations of the Okla. Const, art. 10, § 26. The Department contends that it would not.

¶ 20 Article 10, § 26 of the Oklahoma Constitution prohibits school districts from becoming indebted, in any manner, or for any purpose, by an amount exceeding the income and revenue provided for a fiscal year without the assent of three fifths of the voters. This constitutional provision forces school districts to operate on a cash basis, and it prevents indebtedness payable out of tax revenues from extending beyond one year. This section serves not only as a restriction on the school district, but also on the Legislature.

¶21 Recently, in Southern Corrections Systems, Inc. v. Union Public Schools, 2002 OK 93, ¶22, 64 P.3d 1083, we recognized that: 1) a debt is a promise to pay a certain amount, with interest, within a fixed time, out of taxes taken from all of the people, including those not benefitted; and 2) indebtedness occurs when borrowed money is to be paid, with interest, from taxes in the future, whether such taxes are formally levied at one time, covering that future, or yearly, to meet the payments when about to mature. We have also recognized that in determining whether a particular obligation is a “debt” within the scope of § 26, we look to the nature of the obligation and the manner of enforcement.

¶ 22 While the school district may be obligated to the Department to repay the funds, the recoupment provisions of § 18 118 do not constitute any kind of deficit financing for the purposes of the constitutional debt limitations. Recouping the money that the Department seeks does not require a tax levy by the district nor does it come from the district’s tax collections. Further, recovery of the funds does not in any way amount to the taking away of anything ever legally belonging to the school district — the district was never actually entitled to receive the funds. Accordingly, the constitutional debt limitations of the Okla. Const, art. 10, § 26 are inapplicable to the Department’s recovery of the overpayment.

III.

¶ 23 VENUE IS PROPER IN THE COUNTY WHERE THE SCHOOL DISTRICT IS LOCATED.

¶ 24 The Department insists that the provisions of the Administrative Procedures Act are inapplicable because: 1) no rule was promulgated; and 2) no individual proceeding was authorized or conducted from which a final agency order emanated. It argues that pursuant to 12 O.S.2001 § 133, venue is only proper in Oklahoma County— where the Department is located. It relies on Grand River Dam Authority v. State, 1982 OK 60, 645 P.2d 1011 in support of its argument.

¶ 25 The school district contends that the Act applies because the action of the Department in adopting the Attorney General opinion constitutes an adoption of an administrative rule. Accordingly, it insists that venue is proper in the district court of Muskogee County where the school district is located. It also insists that Allen v. State ex rel. Bd. of Trustees of Oklahoma Uniform Retirement System for Justices and Judges, 1988 OK 99, 769 P.2d 1302 controls.

¶ 26 Absent a specific statute to the contrary, 12 O.S.2001 § 133 governs actions against state officials and it provides that venue lies in the county in which the cause or some part of it arose. We have recognized that when it is the decisional act of a public officer which emanates from the county of the official’s residence that gives rise to the action, venue properly lies in the county of the official’s residence. The same result is reached when declaratory relief is sought under the Declaratory Judgment Act.

¶27 In Grand River Dam Authority v. State, supra, we addressed the Administra-five Procedures Act’s application to Attorney General opinions. Grand River concerned a declaratory judgment action brought by the Grand River Dam Authority against the Attorney General in the district court of Craig County. It sought to have an Attorney General opinion which construed its statutory authority and powers overruled. We held that the special venue provisions of the Act did not apply to Attorney General opinions because such an opinion was not a rule under the Act, nor was the Act intended to apply to such opinions. Consequently, we determined that the venue provisions of 12 O.S. 2001 § 133 applied to declaratory suits which directly challenge an Attorney General opinion and that venue was properly in Oklahoma County — the county of the Attorney General’s residence.

"... 15. 'Rule' means any agency statement or group of related statements of general applicability and future effect that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of the agency ..."

¶28 Six years later, we issued Allen v. State ex rel. Bd. of Trustees of Oklahoma Uniform Retirement System for Justices and Judges, supra, which involved a retired judge’s appeal from a decision of the Board of Trustees for the State Public Employees Retirement System that denied his request for credit for active military service. The Court noted that an agency’s obedience to the legal advice of the Attorney General— whether considered binding or merely advisory — effected adoption of the Attorney General’s opinion as a rule. We recognized that after an agency’s adoption of an Attorney General’s advice as a basis for its standard of legal conduct, the procedural remedy of a declaratory-relief suit afforded by the Administrative Procedures Act, 75 O.S.2001 § 306 was available to test the validity of the agency’s defacto rule.

¶ 29 Although Allen did not involve a challenge to venue, it’s analysis is instructive here. This is not a suit in which the Attorney General’s opinion is directly challenged by an agency, like Grand River. Rather, the record documents that the Department relied upon the advice of the Attorney General to support its decision to recoup the money it overpaid to the school district. The minutes of the January 20, 2000, meeting of the State Board of Education reflect that the Attorney General’s opinion was discussed as.a basis for seeking recoupment. Additionally, the letter sent by the Department to the school district which denied the school district a hearing on the matter indicates that the Department reached its decision because it was following the Attorney General’s opinion.

¶ 30 Under the rationale of Allen, the Department’s adoption of the Attorney General’s opinion constituted a de facto rule which is subject to challenge under the declaratory judgment provision, 75 O.S.2001 § 306 of the Act. Section 306 provides that venue is appropriate in the district court of the county of the residence of the person seeking relief. Accordingly, venue is proper in the county where the school district is located.

CONCLUSION

¶ 31 The state aid program seeks to assure equal educational opportunities among the school districts by apportioning state monies objectively. The State Department of Edu- ■ cation is under a duty to adjust apportion-ments and collect overpayments in state aid. Consistent with the purposes of the Code, penalties are imposed for knowing and wilful violations and recoupment of overpay-ments in state monies is required — regardless of whether the overpayment was a result of knowing and wilful conduct. Recovering an overpayment does not impose on a school district the type of obligation prohibited by the constitutional debt limitations of the Oklahoma Constitution. Additionally, when the Department adopts an Attorney General’s opinion as its standard of legal conduct, a defacto rule is created, implicating the Oklahoma Administrative Procedures Act. A school district seeking declaratory relief under the Act is entitled to bring the action in the county where the school district is located.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED AND CAUSE REMANDED.

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

SUMMERS, J., not participating.

      .Tide 70 O.S.2001 § 18-118 provides:
      "A. The State Board of Education shall appoint auditors who shall audit the funds of the public school districts and the use made of the monies thereof, and shall make such other audits as may be required by the State Board of Education.
      B. School districts and officers and employees thereof who divert any monies received by a district from the purpose for which the monies were apportioned to the district shall be jointíy and severally liable for any such diversion.
      C. If audits disclose that state monies have been illegally apportioned to, or illegally disbursed or expended by, a school district or any of its officers or employees, the State Board of Education shall make demand that said monies be returned to the State Treasurer by such school district. If said monies are not returned, the State Board shall withhold the unretumed amount from subsequent allocations of state funds otherwise due the district. The State Board of Education shall cause suit to be instituted to recover for the state any monies illegally disbursed or expended, if not otherwise recovered as provided herein."
      Because this statute has not been amended since 1990, references are to the current version.

      . The Okla. Const, art. 10, § 26 provides in pertinent part:
      "(a) Except as herein otherwise provided, no county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year without the assent of three-fifths of the voters thereof, voting at an election, to be held for that purpose, nor, in cases requiring such assent, shall any indebtedness be allowed to be incurred to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness

      . Id.

      . We note that the appellant designated for inclusion in the record the defendant's motion for summary judgment and brief in support which was filed in the trial court on October 25, 2000. The document was included in the record on appeal; however, statements in the document refer to attached exhibits. Similar references are made in the appellant’s brief in chief. Apparently, the exhibits were not attached to the document because they were not included in the record on appeal. Rule 1.34, 12 O.S.2001, Ch. 15, App. 1, Oklahoma Supreme Court Rules provides in pertinent part:
      "... (g) Extension of Date for Completion of Record. The appealing party, whether an appellant, counter or cross-appellant, bears responsibility to ensure timely preparation of an adequate record to review the issues urged by that party. The appealing party must timely order and pay for transcripts, designate record, monitor proper completion in the trial court ...”
      Although we were able to glean the relevant facts from other parts of the record and the appellant’s stated facts which would have been supported by the exhibits were not facts which were dispositive of the issues presented, it is the appealing party’s responsibility to ensure that the record contains the proper documentation that they intended to be included in the record.

      . Title 70 O.S.2001 § 18-118, see note 1, supra.

      . The Okla. Const, art 13, § la provides in pertinent part:
      "The Legislature shall, by appropriate legislation raise and appropriate funds for the annual support of the common schools of the State to the extent of forty-two ($42.00) dollars per capita based on total state-wide enrollment for the preceding school year. Such moneys shall be allocated to the various school districts in the manner and by a distributing agency to be designated by the Legislature ...”
      Title 70 O.S.2001 § 18-103 provides in pertinent part:
      "There shall be apportioned and disbursed annually by the State Board of Education, from appropriations made by the Legislature for this purpose and from funds derived from other sources provided by law for this purpose, to the severed school districts of the state, such sums of money as each school district may be qualified to receive under the provisions of this article....”
      Because the statute has remained unaltered since its enactment, references are to the current version. See also, 70 O.S.2001 § 18-101 et seq.

      .Title 70 O.S. Supp.1996 § 18-201 provides in pertinent part:
      "... B. The weighted calculations provided for in subsection A of this section shall be determined as follows:
      1.The weighted pupil grade level calculation shall be determined by taking the highest average daily membership of the preceding two (2) years of a school district and assigning weights to the pupils according to grate attended ...”
      This statute was repealed in 1998. See also, 70 O.S. Supp.1996 §§ 18-200-200.1. Title 70 O.S. Supp.2002 § 18-200.1 provides in pertinent part:
      "A. Beginning with the 1997-98 school year, and each school year thereafter, each school district shall have its initial allocation of State Aid calculated based on the state dedicated revenues actually collected during the preceding fiscal year, the adjusted assessed valuation of the preceding year and the highest weighted average daily membership for the school district of the two (2) preceding years. The State Department of Education shall notify each school district by July 15 of the districts initial allocation level. Each school district shall submit the following data based on the first nine (9) weeks, to be used in the calculation of the average daily membership of the school district:
      1. Student enrollment by grade level;
      2. Pupil category counts; and
      3. Transportation supplement data_”
      See also, 70 O.S.2001 § 18-201.1.
      Title 70 O.S.2001 § 18-107 provides in pertinent part:
      "... 2. 'Average Daily Membership’ (ADM) means the average number of pupils present in a school district during a school year. Average Daily Membership shall be calculated by dividing the sum of the pupil’s total days present and total days absent by the number of days taught....”
      This statute was amended in 1998, however references are to the current version because the pertinent portions of the statute remain unchanged.

      . Title 70 O.S.2001 § 5-128 provides:
      "Boards of education of all school districts are hereby required to make annual statistical and financial reports to the State Board of Education. The statistical report shall be made as of June 30. Each of such reports shall be filed with the State Board of Education as soon as information is available following the effective date of such reports.”
      Because the statute has remained unaltered since 1993, references are to the current version.

      . 70 O.S. Supp.2002 § 18-200.1 see note 7, supra.

      . The Okla. Const, art. 10, § 26, see note 2, supra.

      . The Department's inquiry provided:
      "1. Does the State Department of Education have an obligation to recover a prior year overpayment of state aid from a school district, once it is verified that an overpayment occurred?
      2. Do the limits in Article X, § 26 of the Oklahoma Constitution prevent the recovery of a previous overpayment by the State to a school district?”

      . Title 70 O.S.2001 § 18-118, see note 1, supra.

      . The Okla. Const. art. 10, § 26, see note 2, supra.

      . The Oklahoma Administrative Procedures Act, 75 O.S.2001 §§ 250 et seq.

      . Title 74 O.S.2001 § 18b provides in pertinent part:
      "A. The duties of the Attorney General as the chief law officer of the state shall be:

      5. To give an opinion in writing upon all questions of law submitted to the Attorney General by the Legislature or either branch thereof, or by any state officer, board, commission or department ...”

      . Title 75 O.S.2001 § 306 provides in pertinent part:
      "A. The validity or applicability of a rule may be determined in an action for declaratory judgment in the district court of the county of the residence of the person seeking relief or, at the option of such person, in the county wherein the rule is sought to be applied, if it is alleged the rule, or its threatened application, interferes with or impairs or threatens to interfere with or impair, the legal rights or privileges of the plaintiff...."
      Because the statute has remained unaltered since 1987, references are to the current version.

      . Title 75 O.S.2001 § 307 provides:
      "Each agency shall provide by rule for the filing and prompt disposition of petitions for declaratory rulings as to the applicability of any rule or order of the agency. A declaratory ruling, or refusal to issue such ruling, shall be subject to a judicial review in the manner provided for review of decisions in individual proceedings as provided in Sections 317 through 323 of this title.”
      Because the statute remains unaltered since 1987, references are to its current version.

      . Title 75 O.S.2001 § 318 provides in pertinent part:
      "A.l. Any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review thereof pursuant to the provisions of this section and Sections 319, 320, 321, 322 and 323 of this title.

      B. 1. The judicial review prescribed by this section for final agency orders, as to agencies whose final agency orders are made subject to review, under constitutional or statutory provisions, by appellate proceedings in the Supreme Court of Oklahoma ...
      2. In all other instances, proceedings for review shall be instituted by filing a petition, in the district court of the county in which the party seeking review resides or at the option of such party where the property interest affected is situated, within thirty (30) days after the appellant is notified of the final agency order as provided in Section 312 of this title....”
      Because the statute has remained unaltered since 1992, references are to its current version.

      . Title 70 O.S.2001 § 18-118, see note 1, supra.

      . The Okla. Const. art. 10, § 26, see note 2, supra.

      . Title 70 O.S.2001 § 18-118, see note 1, supra.

      . The Okla. Const, art. 10, § 15 provides:
      "The credit of the State shall not be given, pledged, or loaned to any individual, company, corporation, or association, municipality, or political subdivision of the State; nor shall the State become an owner or stockholder in, nor make donation by gift, subscription to stock, by tax, or otherwise, to any company, association, or corporation."

      . Keating v. Edmondson, 2001 OK 110, ¶ 8, 37 P.3d 882; Nealis v. Baird, 1999 OK 98, ¶ 55, 996 P.2d 438.

      . World Publishing Co. v. White, 2001 OK 48, ¶ 10, 32 P.3d 835; Smicklas v. Spitz, 1992 OK 145, ¶ 8, 846 P.2d 362; Clifton v. Clifton, 1990 OK 88, ¶ 7, 801 P.2d 693.

      . McSorley v. Hertz Corp., 1994 OK 120, ¶ 6, 885 P.2d 1343; Oglesby v. Liberty Mut. Ins. Co., 1992 OK 61, ¶ 8, 832 P.2d 834; Smicklas v. Spitz, see note 24, supra.

      . Walker v. Group Health Services, 2001 OK 2, ¶ 24, 37 P.3d 749; Davis v. GHS Health Maintenance Organization, Inc., 2001 OK 3, ¶ 10, 22 P.3d 1204.

      . Keating v. Edmondson, see note 23, supra; State ex. rel. Dept. of Human Serv. v. Colclazier, 1997 OK 134, ¶ 9, 950 P.2d 824; Matter of Estate of Flowers, 1993 OK 19, ¶ 11, 848 P.2d 1146.

      .Title 70 O.S.2001 § 18-101 provides in pertinent part:
      "The Legislature hereby declares that this act is passed for the general improvement of the public schools in the State of Oklahoma; to provide the best possible education opportunities for every child in Oklahoma; and to have a more beneficial use of public funds expended for education; and this act shall be liberally construed to attain these goals within the purview of the following principles and policies

      7. The system of public school support should make provisions for the apportionment of state funds to local school districts on a strictly objective basis that can be computed as well by the local district as by the state.

        9.... State support should, to assure equal educational opportunity provide for as large a measure of equalization as possible among districts ...."
      Because § 18-101 has remained unaltered since its enactment, references are to the current version.
      Title 70 O.S.2001 § 1-102 provides:
      "The purpose of the Oklahoma School Code is to provide for a state system of public school education and for the establishment, organization, operation and support of such state system.”

      . Title 70 O.S.2001 § 18-101 see note 28, supra.

      . Title 70 O.S.2001 § 18-101, see note 28, supra. See also, 70 O.S.2001 § 1-103 which provides:
      "If any section or part of the Oklahoma School Code is found to be ambiguous or otherwise subject to more than one interpretation, such section shall be liberally construed to the extent that the general purpose of the entire Code and of public education may be advanced.”

      . Title 70 O.S.2001 § 1-105 provides in pertinent part:
      “A. The State Department of Education is that department of the state government in which the agencies created or authorized by the Constitution and Legislature are placed and charged with the responsibility of determining the policies and directing the administration and supervision of the public school system of the state. These agencies are the State Board of Education ...
      B. The State Board of Education is that agency in the State Department of Education which shall be the governing board of said Department and the public school system of the state....”

      . 70 O.S.2001 § 18-103 see note 6, supra.

      . Title 70 O.S.2001 § 18-104 provides in pertinent part:
      "... B. If the State Board of Education should ascertain that any of the factors on which the apportionment or allocation of State Aid to any school district has so changed as to disqualify such district or to reduce its State Aid, then the State Board of Education shall forthwith notify the district ... as to the amount of reduction in the allocation of State Aid, and the board of education shall immediately request the county clerk to adjust the items of appropriation in accordance with such reduction as to effect a total reduction in the appropriation by the amount which the State aid allocation was reduced; and if there has been an overpayment the same shall be returned to the State Treasurer and credited to a refund account which shall be available for further payment of State Aid. Whenever it becomes necessary for a school district to refund any overpayment of monies previously received, the school district shall issue such warrant against a properly approved encumbrance in the manner provide by law. Such claim or encumbrance shall be coded as a refund of prior revenue and paid from the current expenses appropriation of the general fund or such other fund or account from which such refund may properly be paid by the school district."
      Because this statute has remained unaltered since 1993, references are its current version.

      . Title 70 O.S.2001 § 18-116, see note 35, infra; Title 70 O.S.2001 § 18-117, see note 36, infra; Title 70 O.S.2001 § 18-118, see note 1, supra.

      . Title 70 O.S.2001 § 18-116 provides in pertinent part:
      "A. Any school district which willfully operates school buses contrary to the rules and regulation prescribed by the State Board of Education shall forfeit its State Aid for the time of noncompliance. All State Aid funds shall be withheld from any school district that does not comply with the standards of the State Board of Education for accrediting.

      F. The State Board of Education shall revoke the certificate of any teacher, principal, or superintendent who knowingly or willfully violates any of the provisions of this article.
      G. Any official involved in the execution of this article who shall fail or refuse to carry out any of the provisions thereof shall be liable on his official bond, if any, for the monetary damages resulting from said failure to act, and in addition thereto shall be subject to removal from office for neglect of duty under the provisions of law relating to the removal of public officials.
      H. Any person or firm who shall knowingly or willfully violate any of the provisions of this article shall be guilty of a misdemeanor. Any public official or public employee violating any of the provisions of this article shall be subject to the penalties for a misdemeanor and in addition thereto shall forfeit his position or office. Any officer or employee of the State Board of Education who knowingly or willfully apportions or disburses any monies appropriated by this article contrary to the provisions of this article shall be subject to the penalties for a misdemeanor and in addition shall forfeit his office or position....”
      This statute was amended in 2000; however, the changes renumbered the pertinent portions but the language remains unaltered. Consequently, references are to its current version.

      . Title 70 O.S.2001 § 18-117 provides:
      "All apportionments of State Aid to school districts shall be made by the State Board of Education through its Director of Finance, who shall not knowingly make any apportionment or disbursements of State Aid funds which is not authorized by law. Any State Aid funds illegally disbursed by the Director of Finance shall be returned to the State Treasurer by the school district receiving such funds, or legal action shall be instituted in the name of the state against such school district or on the bond of the Director of Finance.”
      Because the statute has remained unaltered since 1980, references are to its current version.

      . Title 70 O.S.2001 § 18-118, see note 1, supra.

      . Id.

      . See, 70 O.S. Supp.2002 § 18-200.1, note 7, supra.

      . The school district relies on several cases in which courts have determined that statutes which refer to "illegal" acts mean only acts without the authority of law, rather than acts which are merely erroneous. However, these cases are distinguishable on their facts. They involve the interpretation of tax statutes and whether the review of tax assessments which were challenged as either erroneous, inequitable or excessive could be brought before the courts in the first instance. Protest of Downing, 1933 OK 387, ¶ -, 23 P.2d 173; Syracuse Trust Co. v. Board of Sup’rs of Oneida County, 258 A.D. 17, 15 N.Y.S.2d 920 (1939); Christofferson v. Chouteau County, 105 Mont. 577, 74 P.2d 427 (1937); Jackson County v. Thornton, 44 Fla. 610, 33 So. 291 (1902); Schieffelin v. Craig, 170 N.Y.S. 603, 183 A.D. 515 (1918); Ford v. McGregor, 20 Nev. 446, 23 P. 508 (1890).

      . Because we have determined that 70 O.S. 2001 § 18-118, see note 1, supra, applies to the present cause, we need not address the school district's argument regarding recovery of an overpayment in the absence of an applicable statute.

      . The Okla. Const, art. 10, § 26, see note 2, supra.

      . The Okla. Const. art. 10, § 26, see note 2, supra. Contracts, executed or executory which seek to bind a school district’s revenues of a succeeding fiscal year are void. Independent School District No. 1 v. Howard, 1959 OK 17, ¶ 7, 336 P.2d 1097; Consolidated School Dist. No. 6 v. Panther Oil & Grease Mfg. Co., 1946 OK 137, ¶ 4, 168 P.2d 613; Board of Education of School Dist. No. 47½ v. Jacobs, 1928 OK 677, ¶ 7, 272 P. 360.

      . City of Del City v. FOP, Lodge No. 114, 1993 OK 169, ¶ 5, 869 P.2d 309; Wyatt-Doyle & Butler Engineers, Inc. v. City of Eufaula, 2000 OK 74, ¶ 6, 13 P.3d 474; Independent School District No. 1 v. Howard, see note 43, supra.

      . Wyatt-Doyle & Butler Engineers, Inc. v. City of Eufaula, see note 44, supra; Protest of Carter Oil Co., 1931 OK 15, ¶ 16, 296 P. 485; St. LouisSan Francisco Ry. Co. v. Andrews, 1928 OK 250, ¶ 0, 278 P. 617.

      . Rehearing time for Southern Corrections Systems, Inc. v. Union Public Schools, 2002 OK 93, ¶ 22, 64 P.3d 1083 has expired and an order on appeal related attorney fees has issued. If no rehearing on the attorney fee order is filed, mandate is expected to issue after March 3, 2003.

      . Clay v. Independent School Dist. No. 1, 1997 OK 13, ¶ 11, 935 P.2d 294; City of Del City v. FOP, Lodge No. 114, see note 44, supra.

      . Title 75 O.S.2001 § 306, see note 16, supra; 75 O.S.2001 § 307, see note 17, supra; 75 O.S. 2001 § 318, see note 18, supra.

      . Title 12 O.S.2001 § 133 provides in pertinent part:
      "Actions for the following causes must be brought in the county where the cause or some part thereof arose:
      ... An action against a public officer for an act done by him in virtue, or under color, of his office, or for neglect of his official duties....”

      . Id.

      . Lowrance v. Patton, 1985 OK 95, ¶ 23, 710 P.2d 108.

      . State ex rel. Dept. of Mental Health and Substance Abuse Services v. Freedom Ranch, Inc., 1998 OK 116, ¶ 4, 970 P.2d 181; Lowrance v. Patton, see note 51, supra; Grand River Dam Authority v. State, 1982 OK 60, ¶¶ 5-6, 645 P.2d 1011; Oklahoma Ordnance Works Authority v. District Court of Wagoner County, 1980 OK 100, ¶ 12, 613 P.2d 746; Hillcrest Medical Center v. Lee, 1978 OK 23, ¶¶ 15-16, 575 P.2d 971; Office of Governor-Dept. of Indus. Development v. Dalton, 1977 OK 34, ¶¶ 10-11, 560 P.2d 971.

      . See, Grand River Dam Authority v. State, note 52, at ¶ 3, supra; 12 O.S.2001 § 1651 et seq. 12 O.S. Supp.2002 § 1653 provides in pertinent part:
      "A. When a declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.
      B. The venue of said action shall be established by existing statutes ...”
      Since its enactment in 1961, this statute was amended only twice, both times in 2002. However, references are to the current version because the pertinent portions remain unaltered. See also, Hillcrest Medical Center v. Lee, see note 52, supra; State ex rel. State Bd. of Ed. v. District Court of Bryan County, 1955 OK 346, ¶ 9, 290 P.2d 413.

      . Although we have reached numerous other decisions in which 12 O.S.2001 § 133 applied to acts by public officials, none of these involved the application of the Administrative Procedures Act, 75 O.S.2001 §§ 250 et seq. See, e.g., State ex rel. Dept. of Mental Health and Substance Abuse Services v. Freedom Ranch, Inc., note 52, supra [Breach of contract action.]; Young v. Walton, 1991 OK 20, ¶ 7, 807 P.2d 248 [Breach of contract action]; Lowrance v. Patton, see note 51, supra [Action to recover funds improperly paid.]; Pribram v. Pouts, 1987 OK 29, ¶ 6, 736 P.2d 513 [Negligence action.]; Oklahoma Ordnance Works Authority v. District Court of Wagoner County, see note 52, supra [Negligence action.]; Hillcrest Medical Center v. Lee, see note 52, supra [Declaratory judgment action to collect on open account.]; Office of Governor-Dept. of Indus. Development v. Dalton, see note 52, supra [Breach of contract action.]; State ex. rel. Director of Oklahoma Alcoholic Beverage Control Bd. v. Smith, 1974 OK 11, ¶ 5, 519 P.2d 477 [Action to enjoin enforcement of open saloon laws.]; State ex rel. Oklahoma Tax Commission v. District Court of Nowata County, 1974 OK 17, ¶ 3, 519 P.2d 513 [Recovery of tax money.]; State ex rel. Dept, of Corrections v. Brock, 1973 OK 95, ¶ 6, 513 P.2d 1293 [Nuisance.]; Starns v. District Court of Oklahoma County, 1962 OK 254, ¶ 7, 376 P.2d 592 [Assault.]; State ex. rel. State Dry Cleaners’ Bd. v. District Court of Nowata County, 1959 OK 120, ¶ 11,340 P.2d 939 [Constitutionality of statutes.]; State ex rel. State Bd. of Ed. v. District Court of Bryan County, see note 53, supra [Declaratory judgment action to determine constitutionality of statute.].

      . Title 75 O.S.2001 § 250.3 provides in pertinent part:

      . Title 75 O.S.2001 § 306, see note 16, supra.

      . See also, Dewey v. State ex rel. Oklahoma Firefighters Pension and Retirement System, 2001 OK 40, ¶ 15, 28 P.3d 539.

      . Title 75 O.S.2001 § 306, see note 16, supra.

      . The Act also provides for judicial review of final orders of agencies subject to its provisions. 75 O.S.2001 § 318, see note 18, supra. Even if the Department's decision to recoup the overpay-ments or the decision to refuse an individual hearing were construed as a final order, judicial review of that decision would be alternatively available under 75 O.S.2001 § 318, see note 18, supra. Section 318 also provides that venue is proper in the county where the party seeking relief resides. For a discussion of the procedures and alternative for judicial review under the act see, Ricks Exploration Co. v. Oklahoma Water Resources Bd., 1984 OK 73, 695 P.2d 498; Cono-co, Inc. v. State Dept. of Health, 1982 OK 94, 651 P.2d 125; and Associated Builders and Contractors of Oklahoma v. State ex rel. Oklahoma Dept. of Labor, 1981 OK 50, 628 P.2d 1156.

      . Title 75 O.S.2001 § 306, see note 16, supra

      . Title 70 O.S.2001 § 18-101, see note 28, supra.

      . Tide 70 O.S.2001 § 18-104, see note 33, supra; Tide 70 O.S.2001 § 18-116, see note 35, supra; Tide 70 O.S.2001 § 18-117, see note 36, supra; Tide 70 O.S.2001 § 18-118, see note 1, supra.

      . Id.

      . The Okla. Const. art. 10, § 26, see note 2, supra.

      . See discussion, pages 615-617, supra.


author: LAVENDER, J.

text:
    2003 OK 20
    Mary Norman FEIGHTNER, Plaintiff/Appellant, v. BANK OF OKLAHOMA, N.A., Defendant/Appellee.
    No. 95,207.
    Supreme Court of Oklahoma.
    March 4, 2003.

      Frederic W. Southern, jr., Oklahoma City, OK, for Plaintiff/Appellant.
    Frederic Dorwart and J. Michael Medina, Tulsa, OK, for Defendant/Appellee.
   LAVENDER, J.

¶ 1 Plaintiff/appellant, Mary Norman Feightner sued defendant/appellee, Bank of Oklahoma, N.A. (BOK) for unpaid overtime and unpaid loan origination commissions. Two issues are before us. One, did the trial judge correctly give summary judgment to BOK on the overtime claim as barred by claim (res judicata) and/or issue (collateral estoppel) preclusion as having been previously litigated in an adjudicative administrative proceeding had before the Oklahoma Department of Labor (DOL) under 40 O.S.2001, § 165.7 that resulted in a final order adverse to Ms. Feightner and in favor of BOK? Two, did the trial judge err in granting summary judgment to BOK because material disputed fact issues exist concerning the loan origination commission claim?

PARTI. STANDARD OF REVIEW.

¶2 An appellate court reviews a grant of summary judgment by a de novo standard. This Court said in Carmichael v. Better, 1996 OK 48, 914 P.2d 1051:

Although a trial court in making a decision on whether summary judgment is appropriate considers factual matters, the ultimate decision turns on purely legal determinations, i.e. whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions. Therefore, as the decision involves purely legal determinations, the appellate standard of review of a trial court’s grant of summary judgment is de novo. [This Court], like the trial court, will examine the pleadings and evidentia-ry materials submitted by the parties to determine if there is a genuine issue of material fact. Further, all inferences and conclusions to be drawn from the eviden-tiary materials must be viewed in the light most favorable to the non-moving party. (Citations omitted.)

Id. at 1053. If the materials subject to consideration on a motion for summary judgment either disclose controverted material facts, or, reasonable minds might reach different conclusions even if the material facts are undisputed, a motion for summary judgment should be denied. Perry v. Green, 1970 OK 70, 468 P.2d 483, 488-489. A de novo review involves a plenary, independent and non-deferential examination of the trial court’s legal rulings. In the Matter of the Assessment of Real Property of Integris Realty Corporation, 2002 OK 85, ¶ 6, 58 P.3d 200, 203. In the final analysis, summary judgment process is properly invoked only when it serves to eliminate a useless trial. Id., 2002 OK 85, at ¶ 5, 58 P.3d at 203.

¶ 3 Whether preclusion doctrine will apply in any particular case is sometimes a question of law and in others a mixed question of law and fact. See Barker v. State Insurance Fund, 2001 OK 94, ¶ 6, 40 P.3d 463, 466. It is solely a question of law if (1) the facts are undisputed [id], (2) the preclusion question can be answered solely by reviewing the judgment put forward as the bar (Montague v. State ex rel. Com’rs of Land Office, 1939 OK 190, 89 P.2d 283, 284 Second Syllabus by the Court), or (3) the preclusion determination can be made solely by inspection of the record of the proceeding(s) culminating in the judgment put forward as the bar. Factor Oil Co. v. Brydia, 1938 OK 356, 85 P.2d 311, 312 Fifth Syllabus by the Court. “[A] deferential standard of review applies to resolutions of disputed facts when supported by reasonable evidence; an independent judgment standard of review applies to the ultimate conclusion that these facts do or do not trigger preclusion.” Barker v. State Insurance Fund, supra, 2001 OK 94, at ¶ 6, 40 P.3d at 466 [quoting A.J. Bayless v. Industrial Commission of Arizona, 179 Ariz. 434, 880 P.2d 654, 659 (Ariz.App.1993)].

¶ 4 We are also concerned in this case with the interpretation of 40 O.S.2001, § 165.7(G) and the legislative language employed there. A legal question involving statutory interpretation is also subject to a de novo review standard. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8 and f.n. 5, 33 P.3d 302, 305 and f.n. 5. With these standards in mind we turn to a review of the matter.

PART II. SUMMARY JUDGMENT RECORD AND PROCEDURAL BACKGROUND.

¶ 5 "Ms. Feightner went to work for BOK as an assistant vice president and branch manager in mid-1995 and worked for BOK until mid-1997. In July 1997, shortly after her employment with BOK ended, she submitted a wage claim form and an amended form to the Oklahoma Department of Labor (DOL). The forms claimed entitlement to overtime compensation she asserted BOK refused to pay. The DOL provided Ms. Feightner with an attorney to represent her, and the wage claim, on an individual basis, proceeded to hearing before an administrative law judge (ALJ) in late January 1998. At the administrative level only issues concerning entitlement to overtime compensation were litigated to final result; entitlement to unpaid loan origination commissions was not adjudicated at the administrative level.

¶ 6 In June 1998 the ALJ issued detailed written “findings of fact[,] conclusions of law and order” (FF/CL), said decision culminating in judgment at the administrative level in BOK’s favor based upon a determination Ms. Feightner was not entitled to overtime compensation. From review of the summary judgment evidentiary materials, which include a transcript of the hearing before the ALJ and the FF/CL, it is, in our view, an undisputed material fact that Ms. Feightner’s alleged entitlement to overtime compensation was presented and litigated at the administrative level on two theories. One, although her job with BOK was a management position and, thus, an exempt one for purposes of overtime compensation under the Fair Labor Standards Act (FLSA), 29 U.S.C.A. § 201 et seq., in actuality, during most of her employment with BOK she was required to perform numerous nonexempt functions and, thus, she was entitled to overtime compensation for hundreds of hours of overtime she was required to work during her tenure with BOK. Two, a BOK superior promised to pay her for the overtime claimed (at one and one-half times her effective hourly rate), thus, she was entitled to the overtime pay as a matter of oral contract. In other words, she claimed entitlement to overtime compensation by virtue of the provisions of the FLSA and via oral contract theory.

¶ 7 The ALJ ruled against Ms. Feightner on both theories. Also, the ALJ expressly noted in his conclusions of law that because Oklahoma does not have any overtime regulation he was required to apply federal standards set forth in the FLSA and that Act’s implementing regulations. No appeal for judicial review to a State district court was taken from the ALJ’s decision as would have been allowed by § 165.7(E) in conformity with the provisions of the Oklahoma Administrative Procedures Act (OAPA), 75 O.S. 2001, § 250 et seq., as amended.

¶ 8 Approximately one year later — in July 1999 — Ms. Feightner filed the suit that is the subject of this appeal. Her petition alleges an oral contract providing for overtime compensation and loan origination commissions of three percent (3%) on all loan origi-nations performed. The petition also claims a willful violation by BOK of the FLSA.

¶ 9 BOK moved for summary judgment. It asserted the overtime claim was barred as having been previously adjudicated adversely to Ms. Feightner in the administrative proceeding that culminated in the final order of the ALJ. As to the loan origination commission claim BOK’s summary judgment eviden-tiary materials attempted to show it had paid Ms. Feightner all the commissions due. Ms. Feightner responded to the summary judgment motion arguing, in essence, her suit for overtime compensation was not barred because, although the suit seeks similar relief than sought at the administrative level, it also seeks other and additional relief, and that the dictates of § 165.7(G) express legislative intent to withhold affording preclusive effect to the administrative determination in a subsequent suit on that claim.

¶ 10 As to the loan origination commissions asserted to be due she presented evidentiary material, including her affidavit, she argued raised genuine material disputed factual issues. In essence, she challenged BOK’s claim of payment of what she asserted was due. She also disputed BOK’s position as to the proper rate of the commission and exactly upon what activity the commission was to be earned. In such regard BOK attempted to show by its evidentiary materials that a commission of three basis points, which it asserts means l/100th of one percent, was due on all loans ultimately funded, not merely originated by Ms. Feightner. BOK also asserted in its summary judgment submission(s) that it would make no business sense for BOK to pay a commission merely on loans originated, rather than loans actually funded, because BOK only derived a benefit when the loan was funded. It also, in essence, questioned the credibility of Ms. Feightner’s affidavit concerning her recitation of oral agreement reached on the loan commission claim and the lack of corroborative evidence as to such an agreement. Finally, as we read Ms. Feightner’s affidavit she, in effect, swears therein that she reached an express oral agreement with an authorized BOK superior to be compensated by a three percent (3%) commission in addition to her regular salary.

¶ 11 As noted above, the trial judge gave summary judgment to BOK. The Court of Civil Appeals, Division IV (COCA) reversed the trial court’s grant of summary judgment and remanded for further proceedings. All three judges of the COCA believed summary judgment was erroneously given to BOK on the loan origination commission claim because material disputed fact issues existed. The COCA majority opinion also decided summary judgment was improperly granted on the overtime claim on the basis the language employed in § 165.7(G) expressed legislative intent to withhold preclusive effect in later district court suits from final adjudicative administrative decisions in overtime claims previously the subject of litigation under § 165.7. BOK sought certiorari review as to both issues and we previously granted certiorari.

PART III(A). OVERTIME COMPENSATION.

¶ 12 This Court recently reiterated the basic principles of preclusion doctrine, claim and issue, in the following language:

The central elements of claim and issue preclusion are well known. Claim preclusion bars relitigation by parties or then-privies of issues which either were or could have been litigated in a prior action which resulted in a prior judgment on the merits. In other words, where the two causes of action are the same the first judgment is a complete bar to the second action. Issue preclusion requires, at a minimum, that the party against whom it is being asserted was either a party to or a privy of a party to the prior action and that the issue subject to preclusion have actually been adjudicated in the prior ease in which said issue was necessary or essential to its outcome, but the doctrine does not require the successive causes of action to be the same. For either to be properly applied the party against whom it is interposed, or someone in privity with such party, must have had a full and fair opportunity to litigate the claim or critical issue. (Citations omitted.)

State ex rel. Moshe Tal v. City of Oklahoma City, 2002 OK 97, ¶ 20, 61 P.3d 234, 245.

¶ 13 Oklahoma’s jurisprudence has foreshadowed a willingness to apply preclusion doctrine to final adjudicative administrative decisions if appropriate and not subject to some recognized exception. See Dority v. Green Country Castings Corp., 1986 OK 67, 727 P.2d 1355, 1360-1361; see also Bostwick v. Atlas Iron Masters, Inc., 1988 OK CIV APP 20, 780 P.2d 1184. We have, however, never been called on to apply preclusion in regard to a final administrative decision under the involved statutory scheme or gauge the meaning of § 165.7(G). Ms. Feightner asserts § 165.7(G) evidences such an exception, to wit: a statutory direction to withhold giving preclusive effect to the administrative decision concerning her overtime compensation claim.

¶ 14 Although generally, application of preclusion principles to final agency adjudicatory decisions is favored, one recognized exception is when there is a statutory intent or directive to the contrary. See Astoria Federal Savings and Loan Association v. Solimino, 501 U.S. 104, 107-108, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Furthermore, even though such a legislative intent or directive need not be express, but may be found through implication (id., 501 U.S. at 108-110, 111 S.Ct. 2166), in our view, there must be at least some rehable indicia of such intent to allow successive relitigation of an essentially identical claim or issue anew in a different forum. As we will explain, § 165.7(G) falls short of the mark.

¶ 15 The purposes of res judicata /claim preclusion and collateral estoppel/issue preclusion are to reheve the parties of the cost and vexation of multiple lawsuits, conserve the resources of the judiciary, and by preventing inconsistent decisions, encourage rehance on adjudication. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). These dual preclusion doctrines are often used interchangeably because they are closely related and both promote the same general public policy concerns. Miller v. Miller, 1998 OK 24, ¶ 22, 956 P.2d 887, 896. Issue preclusion applies to both issues of fact and law necessary to the judgment set up as having preclusive effect. Miller v. Miller, supra, 1998 OK 24, at ¶ 25, 956 P.2d at 897. In essence, preclusion doctrine fosters the important goal of affording finality to litigation where the same parties or their privies have once had a full and fair opportunity to litigate their claims.

¶ 16 Title 40 O.S.2001, § 165.7 provides:

A. The Commissioner of Labor shall enforce and administer the provisions of this act and in any case where a civil action may be brought for the collection of a wage claim, the Commissioner of Labor may provide for an administrative proceeding to determine the validity and enforce collection of the claim. The administrative proceeding shall be conducted according to the Administrative Procedures Act.
B. In any case when the Commissioner has received a wage complaint, the Commissioner may seek collection of such claim through administrative proceedings in a manner provided in this section. The Commissioner may join in a single administrative proceeding any number of wage claims against the same employer. The Commissioner shall serve upon the employer an order of determination directing the employer to pay to the Commissioner the amount of the wage claim and any penalty amounts. Service shall be made by regular mail to the employer’s last-known address. The order of determination shall include:
1. A reference to the particular sections of the statutes or rules involved;
2. A short and concise statement of the basis for the amounts determined to be owed to each wage claimant;
3. A statement that the employer within twenty (20) days after receipt of the order of determination must pay in full the wage claim and any penalties assessed on appeal to district court; and
4.A statement that unless a written request for reconsideration is received by the Commissioner or the order is appealed to district court within the time specified, the order of determination shall become final.
C. Upon failure of the employer to pay the amount specified in the order of determination or to request reconsideration or appeal to district court, the order of determination shall become final.
D. A hearing shall be held in accordance with the applicable provisions of the Administrative Procedures Act by the Commissioner or the Commissioner’s des-ignee. The Commissioner shall adopt rules for such hearing. In any hearing before the Commissioner’s designee, the designee is authorized to issue the final order in the case.
E. Final administrative orders issued in a wage claim proceeding are subject to appeal pursuant to the Administrative Procedures Act.
F. When an order under this section becomes final by operation of law or an appeal, and the amount due is not paid within twenty (20) days after the order becomes final, the order may be recorded with the county clerk in any county of this state. The clerk shall thereupon record the name of the person incurring the penalty and the amount of the penalty in the county clerk’s lien record. The order may be collected as any other money judgment.
G. The remedies provided by Sections 165.1 through 165.11 of this title shall be additional to and not in substitution for and in no manner impair other remedies. Additionally, one or more individuals who are aggrieved by violation of any provision of Sections 165.1 through 165.11 of this title shall be entitled to bring an action in his or their own name to enforce the provisions of such sections. (Emphasis added.)

Section 165.7 has remained unchanged since 1993 when extensive amendments were made to the provision. 1993 Okla. Sess. Laws, Ch. 263, § 3 (West). At such time the above-described statutory structure for administrative adjudicative proceedings on wage claims was added to the provision. Section 165.7 is part of a larger statutory scheme — 40 O.S. 2001, § 165.1 et seq., as amended — concerning the requirement that covered employers pay the wages due their employees, including overtime pay when applicable. Prior to 1993 private individual actions to recover unpaid wages were (and still are) authorized under § 165.9 and such actions had been brought in our district courts under the statutory scheme by private individuals before the 1993 amendments. See e.g. Guerrero v. Horn, 1992 OK CIV APP 104, 837 P.2d 935.

If 17 Although one might make a reasonable argument the language of § 165.7(G) is geared toward exhibiting legislative intent to withhold preclusive effect from a final administrative decision such as was made in Ms. Feightner’s overtime case, a natural reading of the subsection’s language does not readily lend itself to such a view. Instead, a reading of the provision’s terms more naturally leads to the conclusion the Legislature was concerned with making sure that the mere existence of the remedial scheme created by §§ 165.1 through 165.11, including and notwithstanding the addition of the detailed administrative scheme for enforcement, would not be viewed as taking the place of other remedies. In our view, a plain reading of the language exhibits such an intent and a concomitant understanding that the remedial scheme was to be an alternative one in nature and further that an individual with a wage claim enforceable in both administrative and judicial forums would not be mistakenly required to exhaust the former to gain access to the latter. Exhaustion of administrative remedies is normally a prerequisite for resort to the courts in matters involving adjudicative administrative proceedings subject to the OAPA. See e.g. Conoco, Inc. v. State Dept. of Health, 1982 OK 94, 651 P.2d 125.

¶ 18 A plain reading of § 165.7(G)’s terms, however, does not go so far as to show, either by express language or impliedly (with sufficient indicia of reliability) an intent that an individual who actually uses the administrative forum to final adverse adjudicative conclusion was to be allowed a legislatively imposed dispensation from recognized common law preclusion doctrine. The language simply does not indicate that a person who has once actually administratively litigated his claim, fully and fairly, to overtime pay, and lost, may then move to a different forum and successively litigate the same claim or issue again outside the confines of normal judicial review of administrative decisions. Nothing in the state statutory scheme required Ms. Feightner to invoke the administrative process; however, once that course was voluntarily chosen and the matter culminated in a final adjudicative administrative order that was available for subjection to judicial review under the OAPA the application of preclusion doctrine as an affirmative defense was a potential consequence.

¶ 19 In the final analysis we simply cannot conclude the Legislature intended to allow multiple, successive opportunities to litigate a claim like that at issue here or to override the beneficial purposes fostered by giving final adjudicative administrative decisions made pursuant to § 165.7 preclusive effect. The language of § 165.7(G) does not require such a result nor that we permit a suit for overtime compensation anew in a judicial tribunal when an adjudicative administrative official, after a full and fair opportunity to litigate, has already finally decided against a claimant’s entitlement thereto. The trial court was, therefore, correct to grant summary judgment as to the overtime claim and the COCA erred by reversing the trial judge in such regard.

PART III(B). LOAN ORIGINATION COMMISSIONS.

¶ 20 We need pause only briefly to consider whether it was error for the trial court to have granted summary judgment to BOK on Ms. Feightner’s claim to unpaid commissions. Again, under summary judgment process we, like the trial court, are required to view all inferences and conclusions to be drawn from the evidentiary materials in the light most favorable to the non-moving party — here Ms. Feightner. As set out in PART II[,] SUMMARY JUDGMENT RECORD AND PROCEDURAL BACKGROUND[,] ¶ 10, we read Ms. Feightner’s affidavit (submitted in response to BOK’s summary judgment materials) to, in essence, swear that she reached an express oral agreement -with an authorized BOK superior to be compensated by a three percent (3%) commission for loan originations in addition to her regular salary. Although BOK disputes such an oral agreement, we believe nothing additional in the way of corroborative evidentiary materials on Ms. Feightner’s part — as argued by BOK below and on cer-tiorari — was necessary to defeat BOK’s quest for summary judgment on the issue.

PART IV. SUMMARY.

¶ 21 The trial court was correct to grant summary judgment to BOK on the overtime claim because it is barred by either res judi-cata/claim or collateral estoppel/issue preclusion by virtue of its previous final adjudication at the administrative level. However, the trial judge erred in granting summary judgment on the loan origination commission claim because the evidentiary materials showed a genuine dispute concerning material factual issues.

¶22 Accordingly, the Court of Civil Appeals’ opinion is VACATED and the trial court judgment is AFFIRMED IN PART AND REVERSED IN PART and the matter is REMANDED for further proceedings.

¶23 HODGES, LAVENDER, HAR-GRAVE, SUMMERS, BOUDREAU and WINCHESTER, JJ., concur.

¶ 24 WATT, C.J., OPALA, V.C.J. and KAUGER, J., concur in part; dissent in part.

      . The trial court summary judgment under review was filed in the trial court in August 2000. The administrative law judge’s (ALJ) "findings of fact and conclusions of law and order” was filed in the administrative proceeding with the Oklahoma Department of Labor (DOL) in July 1998. Title 40 O.S.2001, § 165.7 has remained unchanged since 1993 when extensive amendments were made to the provision [1993 Okla. Sess. Laws, Ch. 263, § 3 (West)]. Section 165.7 is part of a statutory scheme — 40 O.S.2001, § 165.1 et seq., as amended — concerning the requirement that covered employers pay the wages due their employees, including overtime pay when applicable.

      . Title 40 O.S.2001, § 165.7(D) requires the hearing to be held in accordance with the applicable provisions of the Oklahoma Administrative Procedures Act (OAPA), 75 O.S.2001, § 250 et seq., as amended. Article II of the OAPA, 75 O.S.2001, § 308a et. seq. generally governs the hearing procedures of state agency adjudicative process.

      . We do not read defendanl/appellee, Bank of Oklahoma, N.A.'s (BOK) summary judgment submissions as asserting the loan origination commission claim is barred by application of preclusion doctrine by virtue of the administrative adjudication. Nor does BOK make such an assertion in its petition for certiorari to this Court in its attack on the decision of the Court of Civil Appeals (COCA).

      . The general statute concerning judicial review of a final administrative order made in an individual proceeding (i.e. adjudicative proceeding) is found in § 318 of the OAPA.

      . We note that our review of the summary judgment materials shows that plaintiff'appellant, Ms. Feightner's claim for entitlement to overtime compensation was subject to full and fair litigation within the confines of the adjudicative administrative proceeding.

      . Res judicata is set out as an affirmative defense in the Oklahoma Pleading Code, 12 O.S.2001, § 2001 et seq., as amended. 12 O.S.2001, § 2008(C).

      . Nothing in a case cited by BOK, McKelvy v. Choctaw Cotton Oil Co., 1915 OK 649, 152 P. 414, is to the contrary. Although it is somewhat difficult to tell from reading McKelvy whether the plaintiff there actually asserted the existence of an oral contract for extra compensation in addition to his salary for overtime work, it is plain that the proof at trial failed to disclose such a contract, therefore, this Court affirmed the trial court's sustaining of a demurrer to the claim for compensation for overtime work. Id., 152 P. at 415-416. Here, Ms. Feightner has sworn to the existence of a contract concerning compensation in the form of commissions in regard to loan originations, compensation she, in essence, avers was to be in addition to her regular salary.


author: JOE C. TAYLOR, Presiding Judge.

text:
    2003 OK CIV APP 20
    LeEtta OSBORNE, Plaintiff/Appellant, v. MOLLMAN WATER CONDITIONING, INC., an Oklahoma corporation d/b/a Culligan Water Conditioning, and Asphalt Producers, Inc., an Oklahoma corporation, Defendants/Appellees.
    No. 96,526.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Dec. 17, 2002.
    Certiorari Denied Feb. 24, 2003.

      W. Terry Flaugher, W. Terry Flaugher, P.C. OMahoma City, OK, for Plaintiff/Appellant.
    David H. Cole, Michael Woodson, Scott R. Farris, Edmonds, Cole, Hargrave, Givens, Witzke, Ryan & Woodson, OMahoma City, OK, for Defendant/Appellee Mollman Water Conditioning.
    Peter A. Erdoes, OMahoma City, OK, for Defendant/Appellee Asphalt Producers.
   Opinion by

JOE C. TAYLOR, Presiding Judge.

¶ 1 Plaintiff, LeEtta Osborne, appeals from a judgment on a jury verdict against her in an automobile accident case. The jury found Plaintiffs contributory negligence was greater than the combined negligence of all Defendants, resulting in no recovery by Plaintiff. There are two issues on appeal: (1) whether the trial court committed reversible error by allowing each Defendant to exercise three peremptory challenges when Plaintiff was limited to three such challenges; and (2) whether the trial court erred in refusing to allow Plaintiff to present as a rebuttal witness an accident reconstruction expert. Based on our review of the record, the parties’ briefs, and the applicable law, we find that the trial court did not err and affirm the judgment.

Facts

¶ 2 This lawsuit arose from a multiple vehicle collision on Interstate 40 near downtown OMahoma City on June 19, 1997. Plaintiff and four other vehicles were traveling east on Interstate 40, when traffic congestion triggered a chain reaction collision that spread across all three lanes of traffic. The motorists involved in the crash, in addition to Plaintiff, included employees of Defendants Mollman Water Conditioning, Inc., d/b/a Cul-ligan Water Conditioning (Mollman), and Asphalt Producers, Inc. (Asphalt), and two non-parties, Michael Meadows and Paul Frolieh.

¶3 Plaintiff brought this action against Mollman and Asphalt in April 1999, claiming their negligence caused the accident. Following nearly two years of discovery and case preparation, the matter was tried to a jury over a five-day period in March 2001. Prior to trial, Defendants requested and were granted three peremptory challenges each as to the proposed jury panel. It is undisputed that Plaintiff did not, at any time prior to this appeal, lodge an objection to the grant of supernumerary challenges to the defense. Defendants exercised all six peremptory challenges and Plaintiff exercised her three.

¶ 4 At trial, Plaintiff called 18 witnesses in her ease-in-chief, none of whom were accident reconstruction experts. Testimony concerning the order and timing of events leading to the crash was conflicting. It included evidence from at least two witnesses, including Plaintiff herself, that Plaintiff accelerated when she saw the Mollman truck start to come from the far right lane of traffic toward the far left lane, where Plaintiff was driving. Plaintiff testified she “speeded up” when she saw the Mollman truck heading for her lane because she thought she could “get out of his way,” and that it was only after she realized the truck was not going to miss her that she applied her brakes and tried to stop.

¶ 5 In its case-in-chief, Mollman called an accident reconstruction expert, Robert W. Painter, Jr., who gave his opinion that a “normal, prudent” driver would have reacted by braking rather than accelerating upon the sight of a truck coming into his or her lane. He also opined that had Plaintiff braked rather than accelerated there would have been no contact between Plaintiffs vehicle and the Mollman truck. Painter had been listed as a witness for Asphalt for several months, but Plaintiff had not attempted to depose him prior to trial.

¶ 6 Defendants called only two other witnesses — a physician and a psychiatrist — and rested. Plaintiff thereafter sought to call her own accident reconstruction expert as a rebuttal witness, and Defendants objected. The trial court sustained Defendants’ objection, noting Plaintiff had not listed the witness, Plaintiff had never attempted to depose Painter, and Defendants had never had an opportunity to depose the proposed witness. The matter was submitted to the jury, which returned a verdict attributing 59 percent contributory negligence to Plaintiff, 38 percent negligence to Mollman, and 1 percent each to Asphalt, Meadows, and Frolieh. The trial court entered judgment on the verdict.

¶7 Plaintiff appeals, asserting, first, that the record as a whole, including Defendants’ cooperation with each other at trial, shows no serious conflict of interest between Defendants, and the trial court therefore committed fundamental, reversible error by allowing each Defendant three peremptory challenges. She also asserts it was reversible error to disallow Plaintiffs use of the previously unidentified accident reconstruction expert on rebuttal. Defendants argue that Plaintiffs failure to object to the trial court’s decision allowing the additional challenges did not preserve that issue for appellate review, and that the trial court properly exercised its discretion in disallowing the rebuttal witness under the circumstances presented.

Peremptory Challenges

¶ 8 As a genera] rule each side in a lawsuit — plaintiff and defense — is entitled to a total of three peremptory challenges. See 12 O.S.2001 §§ 573, 575.1; M & D Motor Freight Lines v. Kelley, 1948 OK 128, 202 P.2d 215 (three peremptory challenges to joint tortfeasor defendants). Under § 575.1, however, if a trial court determines there is a “serious conflict of interest” between one or more defendants, then the court may allow three peremptory challenges to each defendant. The same statute leaves the question of whether and when to grant supernumerary challenges to the trial court’s discretion.

¶ 9 Judicial discretion in this area is not “unregulated,” however, and in Thompson v. Presbyterian Hospital, Inc., 1982 OK 87, ¶ 31, 652 P.2d 260, 268, the Supreme Court reversed a jury verdict because a trial court had abused its discretion by granting supernumerary challenges to the defense when there was no “serious dispute” among the defendants. The Court noted the defendant hospital had requested and received the additional challenges based solely on the hospital’s suggestion that a conflict was likely to evolve among the defendants, but had offered no other support for the existence of conflict among those parties. Id. at ¶ 26, 652 P.2d at 266-67. The Court further held that the plaintiff was not required to prove actual prejudice resulting from the grant of the extra challenges, but that on appellate review, “[pjrejudice to the plaintiff will be deemed to have occurred when any additional peremptory challenge is allowed to a defendant,” and the judgment in question, will be reversed unless the record shows a “serious dispute” in fact exists between one or more co-defendants in the ease. Id. at ¶ 31, 652 P.2d at 267.

¶ 10 The Court in Thompson did not address whether a party must timely object in the lower court to the allocation of peremptory challenges in order to preserve the error for appellate review, nor has it addressed that issue since Thompson was decided. Though the issue has not been widely addressed in other jurisdictions, it appears that courts that have addressed the question have either required or assumed that a timely objection in the lower court is needed to preserve the error for appellate review. See, e.g., Texas Commerce Bank Reagan Through Texas Commerce Bank Nat’l Ass’n v. Lebco Constr., Inc., 865 S.W.2d 68, 77-78 (Tex.Ct.App.1993) disagreed with on other grounds by Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex.1998); Gestring v. Mary Lanning Mem. Hosp. Ass’n, 259 Neb. 905, 613 N.W.2d 440, 447 (2000); Rees v. Chicago, B & Q Ry. Co., 156 Mo.App. 52, 135 S.W. 981, 983-84 (Ct.App.1911); 50A C.J.S. Juries § 442 (1997).

¶ 11 This view is consistent with the one often expressed by the Oklahoma Supreme Court that a party’s failure to lodge a timely objection to a trial court’s action results in appellate review only for fundamental trial court error. See e.g., Pine Island Resort, Inc., v. Resort Mgmt., Inc., 1996 OK 83, ¶ 15, 922 P.2d 609, 613. This is true, also, of constitutional issues, which the Supreme Court has recognized may not be raised for the first time on appeal unless the issue is jurisdictional or is one impheating the public welfare or interest. See e.g., Johnson v. City of Woodward, 2001 OK 85, ¶21, 38 P.3d 218, 226-27 (court will not consider equal protection issue raised for first time on appeal as to constitutionality of statutory presumption); McGlumphy v. Jetero Const. Co., Inc., 1978 OK 154, ¶ 22, 593 P.2d 76, 83 (issue of constitutionality of hen statutes not presented to trial court nor urged in petition-in-error would not be addressed for first time on appeal). Plaintiff does not argue, and we do not recognize here, an issue implicating the court’s jurisdiction or the public welfare.

¶ 12 In hght of the fact that Thompson made clear the requirements for a grant of supernumerary challenges, it is only reasonable to require any party who feels those requirements have not been met to bring to the trial court’s attention the alleged lack of a conflict of interest. Here, Plaintiff registered no objection until filing this appeal. Even though, in Thompson, the Court indicated that unwarranted excess peremptory challenges may implicate due process issues, we find nothing in that case suggesting that, after a trial court specifically finds a serious conflict of interest exists, a party may wait until after an adverse jury verdict has been returned before challenging the court’s decision allowing supernumerary challenges. We therefore hold that a timely objection must be made to a trial court’s allocation of peremptory challenges in order to preserve for appellate review any error other than fundamental error. Because Plaintiff did not lodge any objection with the lower court, we review the trial court’s action here only for fundamental error.

¶ 13 Plaintiff appears to argue that, because the Oklahoma Supreme Court in Thompson framed the issue as one implicating a party’s right to due process and an impartial jury, this means that any trial court error in awarding supernumerary challenges that appears at any time during trial constitutes fundamental error. Plaintiff points primarily to Defendants’ collaborative strategies during trial to support her argument that no conflict of interest existed, and, therefore, fundamental error occurred. We reject this approach.

¶ 14 Thompson makes clear that some showing of an actual conflict of interest between the parties in question must appear of record in order to avoid reversal of a decision to allow extra challenges. Though not specifically addressed by the Oklahoma Supreme Court, the decision implicitly suggested that the determination of whether a conflict exists should be judged as of the time the decision is made to allow the extra challenges. This approach is consistent with the reasoning of a number of other courts that have considered the issue, and is the approach we use here. In Sand Hill Energy Inc. v. Ford Motor Co., 83 S.W.3d 483, 488 (Ky.2002), the Kentucky Supreme Court stated:

While it may appear in retrospect that [the relevant parties] lacked any substantial antagonistic interest, such could not have been known by the trial court at the time the jury was selected. It has been suggested that the positions parties take at trial should determine whether they have antagonist interests, but such a rule is utterly unworkable. At the time a trial judge must make the allocation of peremptory challenges, there can be no certainty as to what the evidence will show or precisely what the claims or defenses will be_(Footnotes omitted.)

See also King v. Special Res. Mgmt., Inc., 256 Mont. 367, 846 P.2d 1038, 1041 (1993) (“This procedure eliminates the need for us to review the entire record using a hindsight approach to determine whether the parties were in fact ‘hostile’ during the course of the trial.”).

¶ 15 The record in the case at bar supports the trial court’s determination that such a conflict existed between Defendants. At the time the request for extra peremptory challenges was made, a lawsuit was pending against one Defendant by the employee of another Defendant as a result of the same accident. The parties were represented by different counsel, and the pleadings, including the pre-trial conference order, reflect that Plaintiff alleged separate acts of negligence against each Defendant that combined to cause her injury. Further, each Defendant alleged the other’s negligence as causing the accident, meaning that a finding of greater liability by one Defendant would likely reduce the potential liability of the other. The combination of these factors is sufficient to support the allowance of supernumerary challenges to Defendants, and does not reflect an abuse of discretion. See Webster v. Lipsey, 787 S.W.2d 631, 638-39 (Tex.Ct.App.1990); Hilyer v. Hole, 114 Mich.App. 38, 318 N.W.2d 598, 601-02 (Ct.App.1982); Roberts v. Taylor, 339 S.W.2d 653, 655-56 (Ky.Ct.App.1960).

¶ 16 “Fundamental error” has been described by the Supreme Court as being “not subject to precise definition,” but generally is such error as would “render a judgment void.” Meadows v. Meadows, 1980 OK 158, ¶ 7, 619 P.2d 598, 601. Based on the record presented, we do not find fundamental error in the trial court’s decision to allow extra peremptory challenges to Defendants. Therefore, we reject Plaintiffs argument on this issue.

Rebuttal Evidence

¶ 17 Plaintiff also alleges error in the trial court’s refusal to allow her to call an accident reconstruction expert as a rebuttal witness. As noted above, Plaintiffs request to present the expert came after all parties had rested. Plaintiff had not listed the proposed witness in the pre-trial conference order or otherwise in discovery. Plaintiff made an offer of proof to the effect that her expert would testify, in particular, concerning certain time estimates utilized by the defense expert, Painter, in reaching his conclusions.

¶ 18 Defendants argue the testimony offered by Plaintiffs expert was not true “rebuttal” evidence but was evidence relevant to the issue of causation that Plaintiff should have offered in her case-in-chief. Plaintiff argues the expert’s testimony was proper rebuttal evidence because she was not obliged to present more than a “prima facie” ease in her case-in-chief, and she had done that, as evidenced by the trial court’s denial of Defendants’ request for dismissal after Plaintiff rested.

¶ 19 A trial court’s ruling on a party’s request to present rebuttal evidence is discretionary and is not reversible error on appeal in the absence of a showing of clear abuse of discretion. Swyden v. Killiam, 1975 OK 12, ¶ 19, 531 P.2d 1031, 1035. “The term ‘discretion’ denotes the absence of a hard and fast rule and, when it is invoked as a guide to judicial action, means ‘sound discretion’; this is held to mean a discretion not exercised willfully or arbitrarily, but with a regard to what is right and equitable under the circumstances.” Stewart v. Oklahoma Tax Comm’n, 1946 OK 132, ¶ 14, 168 P.2d 125, 128. What constitutes “abuse of discretion” in a particular matter depends upon the circumstances and the law surrounding each case. Id. at ¶ 15,168 P.2d at 129.

¶ 20 In the conduct of a trial, “[i]t is the duty of the plaintiff to present all of his evidence to make out his case in chief before resting, and it is not permissible to permit the plaintiff to introduce a portion of his evidence in chief and then to wait to see what the evidence on the part of the defendant is before introducing the rest of his evidence.” Poppy v. Duggan, 1925 OK 263, ¶ 6, 235 P. 165, 166. Rebuttal evidence is evidence that becomes relevant only as an effect of some evidence introduced by the other side, id., but does not include “testimony whose purpose is to contradict an expected and anticipated portion of the opponent’s case in chief.” State ex rel. Okla. Bar Ass’n v. Busch, 1998 OK 103, ¶ 15, 976 P.2d 38, 45.

¶21 The defense evidence that Plaintiff wished to rebut with an accident reconstruction expert was not such evidence as could reasonably be called “surprise” evidence, or evidence Plaintiff should not have expected and anticipated. Painter’s testimony went primarily to the element of causation, and it is obvious from his trial testimony that certain time estimates and calculations were integral to his opinion. These are matters that undoubtedly would have been covered in a pre-trial deposition had Plaintiff chosen to take one. There is no explanation in the record for Plaintiff’s failure to take Painter’s deposition or to obtain a written description of any testimony Painter was expected to give. Given the conflicting versions by Plaintiff, Defendants, and the other witnesses of the events leading to the accident, Plaintiffs expert’s opinion cannot be considered true rebuttal evidence. Painter’s testimony was simply evidence, which, by virtue of choosing not to depose Painter, Plaintiff was unprepared to refute.

¶ 22 Furthermore, even if Plaintiffs evidence were properly characterized as rebuttal, the trial judge’s refusal to allow it was warranted in this instance. A primary purpose of the Oklahoma Discovery Code is to promote the “just, speedy and inexpensive determination of every action,” 12 O.S.2001 § 3225, while modern discovery practice seeks to “promote the discovery of the true facts and circumstances ... rather than to aid in their concealment.” City of Edmond v. Parr, 1978 OK 70, ¶7, 587 P.2d 56, 57. Similarly, the purpose of conducting a pretrial conference and listing witnesses in a pre-trial order is to assist in the orderly administration of a trial and to prevent surprise testimony. Middlebrook v. Imler, Ten-ny & Kugler, 1985 OK 66, ¶ 23, 713 P.2d 572, 582.

¶ 23 Not only is the classification of Plaintiffs proferred evidence as rebuttal evidence questionable, but Plaintiffs argument to allow it is contrary to both the letter and the spirit of Oklahoma’s discovery and other pretrial procedures described above. We reject Plaintiffs argument that the trial court abused its discretion by refusing to allow her to present her rebuttal witness under these facts.

¶ 24 The trial court’s judgment is therefore AFFIRMED.

REIF, C.J., and STUBBLEFIELD, J., concur.

      . This issue is addressed in the record by means of a narrative statement approved by the trial court after the trial was completed. According to the narrative statement, counsel appeared before the trial court prior to trial "for the purpose of discussing voir dire procedures and other matters" in the case. After the trial judge advised Plaintiff that she would be allowed three peremptory challenges, he "was advised by the attorneys for the Defendants that their defenses were antagonistic or adverse; that Defendant Asphalt Producers' driver had a pending lawsuit against Defendant Mollman arising out of the same accident ... and that they therefore requested three (3) peremptory challenges each,” to which Plaintiff's counsel neither consented nor objected. The trial court then "acknowledged a serious conflict of interest" between Defendants, and granted the request for three peremptory challenges to each Defendant, and "[a]ll challenges were exercised by the respective parties."

      . Plaintiff testified on cross examination:
      Q [Y]ou saw the Culligan [Mollman] truck starting to merge out of the right lane, correct?
      A Yes.
      Q And you thought at that point that you could outrun the truck?
      A I thought maybe if I speeded up.
      Q You could outrun that Culligan [Mollman] truck?
      A I could get out of his way.