author: WINCHESTER, J.

text:
    2004 OK 37
    The CITY OF GUYMON, a municipal Corporation; and Guymon Industrial Authority, a public trust, Plaintiffs/Appellees, v. Charles BUTLER, Chairman, Art Twombly, Member, and Joe Mayer, Former Member, Texas County Excise Board; Texas County Excise Board; Thyra Grounds, Texas County Assessor; Rita Wise, Texas County Treasurer; and Board of County Commissioners, Texas County, Oklahoma, Defendants/Appellants.
    No. 98,766.
    Supreme Court of Oklahoma.
    May 25, 2004.

      Larry L. Field, Larry L. Field P.C., Guy-mon, OK, for Appellants.
    David K. Petty, David K. Petty, P.C., Guy-mon, OK, James D. Batchelor, Leslie V. Batchelor, Batchelor and Powers, P.C., Oklahoma City, OK, for Appellees.

      . Identified herein are only those counsel for the parties whose names appear on the briefs. Names of counsel representing entities seeking to appear amicus curiae are omitted since applications to so appear are denied.

   WINCHESTER, J.

T1 The issue is whether the appellants (the County) properly withheld an ad valo-rem tax increment from the appellees, the City of Guymon and Guymon Industrial Authority (the City). The County asserts that the Guymon-Seaboard Economic Development Project, established by ordinances enacted by the City of Guymon, violates provisions of the Constitution of Oklahoma, and the Local Development Act (62 0.8.2001, §§ 850-880) and therefore it properly withheld the payment. The district court found for the City and the County appeals. We affirm.

I. PROCEDURE

T2 On May 31, 2002, the City sued the County, asking for a peremptory writ of mandamus ordering the County to assess, collect, and disburse to the City ad valorem taxes for Increment District No. 1, City of Guymon, in the amount of $448,589.53. The district court issued the writ on the same day. On June 17, 2002, the County moved to stay or vacate the writ and to grant the County summary judgment. The court ordered that the peremptory writ of mandamus continue in effect and that $448,589.58 be held in escrow until further order of the court. After hearings conducted on July 23, 24, and August 6, 2002, the court entered judgment on December 18, 2002, in favor of the City in the amount of $307,962.53. It further ordered the County to comply with 62 0.S. § 862 in the assessment, collection, apportionment, and disbursement of the ad valorem taxes for Increment District No. 1, City of Guymon. The County appealed asserting ten propositions of error. This Court granted the County's motion to retain.

II. THE LOCAL DEVELOPMENT ACT

13 The City of Guymon established Tax Increment District No. 1 pursuant to the Local Development Act to generate revenue for financial assistance to Seaboard Corporation in its construction of a pork processing facility in the City of Guymon. The additional ad valorem tax generated by the new processing plant is committed to repayment of a $4.5 million bond issue.

T4 The Legislature stated the purpose of the Local Development Act in 62 0.9.2001, § 851. The Act is used to put into practical effect Article 10 § 6C of the Constitution of the State of Oklahoma. The Act provides for tax increment financing, a method through which portions of ad valorem taxes over a base assessed value may be dedicated to finance costs of approved project plans. Oklahoma City Urban Renewal Authority v. Medical Technology & Research Authority of Oklahoma, 2000 OK 283, ¶ 8, 4 P.3d 677, 682. 62 0.8.2001, $ 853(9).

T5 How tax increment financing is used by a city is described in the Oklahoma City Urban Renewal Authority case:

"Tax increment financing utilizing ad valo-rem taxes assumes that the assessed property value of the area will increase because of the development project and that, absent the project, property values would not rise. The financing plan is intended to create economically productive property where none presently exists by providing inducements for private commercial development. It allows the capture of local taxes generated by a new development instead of allocating the tax increments to the taxing entities."

Oklahoma City Urban Renewal Authority, 2000 OK 28, ¶ 9, 4 P.3d at 682, (footnotes omitted).

III. FACTS AND CONCLUSIONS OF THE DISTRICT COURT

T6 The district court made the following conclusions based on its findings of fact. The Guymon-Seaboard Economic Development Project and Increment District No. 1, City of Guymon, were adopted by the City to reverse the serious conditions of economic stagnation and decline existing in the City of Guymon and Texas County in the early 1990's. The project area was within a state-designated enterprise zone, which established its need for development and investment and eligibility for assistance using the tools of the Local Development Act.

T7 Undisputed evidence established that the Guymon-Seaboard Economic Development Agreement has benefited the City and the County in direct positive impact by Seaboard's provision of health insurance benefits to all eligible employees, and annual payments of $175,000.00 for the benefit of the Guymon Independent School District for 25 years or until the termination of Increment District No. 1. The indirect positive impact included creation of 5,000 new jobs in Texas County, doubling of the ad valorem tax base of the County, more than doubling the tax base of the school district, more than 1,000 new residential units, county population increase of about 4,000, fifty percent reduction in the unemployment rate, and about fifty percent increase in per capita income.

T8 The district court concluded that the Project Plan and Increment District were adopted and approved in compliance with the Local Development Act and the Constitution of the State of Oklahoma.

T9 Additional facts are discussed relative to pertinent propositions of error.

IV. CONSTITUTIONAL ISSUES

{10 The County has raised three issues concerning whether the City's utilization of the Local Development Act violates Oklahoma's Constitution. This Court held the Local Development Act to be facially constitutional in Oklahoma City Urban Renewal Authority v. Medical Technology & Research Authority of Oklahoma, 2000 OK 23, 4 P.3d 677. The tax increment financing plan in the case at bar provides that the County is to assess and collect the ad valorem taxes for Increment District No. 1, City of Guymon, according to the Project Plan, adopting ordinance as amended, and directions of apportionment from the City of Guymon, pursuant to 62 0.8.2001, § 862.

111 "Generally, the provisions of a Constitution are construed using the usual rules of statutory construction." Cowart v. Piper Aircraft Corp., 1983 OK 66, ¶ 4, 665 P.2d 315, 317. A constitutional provision must be construed as a consistent whole, in harmony with common sense and reason, and every part should be given effect if possible. Poafpybitty v. Skelly Oil Co., 1964 OK 162, ¶ 13, 394 P.2d 515. It is not to be assumed that a constitutional provision contains excess verbiage, having neither foree nor effect. Cowart, 1983 OK 66, ¶ 4, 665 P.2d at 317. The construction of a constitutional provision must not be so strict as to defeat the purpose of its adoption. Lone Star Gas Co. v. Bryan County Excise Board, 1943 OK 228, ¶ 2, 141 P.2d 83, 85.

112 A new constitutional provision that contains some of the same subject matter will suspend inconsistent former provisions whether or not those provisions are specifically mentioned. In re Initiative Petition No. 259, 1957 OK 167, ¶ 23, 316 P.2d 139, 144.

{13 With these rules of construction in mind, we examine three constitutional provisions that the County asserts conflicts with the Local Development Act.

A. Is the Project a Private Rather than a Public Project?

114 The basis of the County's arguments in its propositions I and VII are that the City is attempting to levy and collect taxes to pay for the construction of a private enterprise in violation of Article 10, § 14 of the Constitution, and "62 O.S$.Supp.1992, § 850 et seq." The County asserts that the project costs were not expenditures made upon public works, public buildings or public improvements, that the City is attempting to levy taxes for a private purpose. The district court found that the project qualified as a public project and the expenditures were for a public purpose. The County cites no authority exeept the Constitution and the 1992 enabling legislation of the Local Development Act.

{15 In § 6C of Article 10, subsection A mentions "incentives, exemptions and other forms of relief from taxation for historic preservation, reinvestment, or enterprise areas that are exhibiting economic stagnation or decline." Subsection B authorizes cities, towns or counties to specifically use local taxes and local fees for assistance in developmental financing. Subsection C provides that any city, town or county may by agreement jointly plan, finance or carry out a development plan with any other public or private entity.

116 The Court held in Burkhardt v. City of Enid, 1989 OK 45, ¶ 9, 771 P.2d 608, 610-611 that the term public purpose is Article 10, § 14, should not be construed in a narrow or restricted sense and that public use merely required that the work was essentially public and for the general good of all the inhabitants of the taxing body.

T17 A review of § 6C reveals it allows incentives, exemptions, and tax relief for private entities if the project itself has a public purpose. The Guymon-Seaboard Eeonomic Development Project Plan and Increment District served public purposes by increasing the tax base, bringing new jobs to the City of Guymon and Texas County, elevating the median family income, bringing more children into the school district, and stimulating additional businesses within the Guymon Industrial Park.

18 The record reflects that the Guymon Industrial Authority owned the property in the Increment District, and the trial court so concluded. Since the Authority owned the property at the time the improvements were made and the project costs were incurred, then the property in fact constituted public works and public buildings, because the Authority is a public trust. It subsequently sold the property to Seaboard.

19 Sublett v. City of Tulsa, 1965 OK 78, 405 P.2d 185, discussed public use and public purpose in great detail in connection with the project that culminated in the building of the Port of Catoosa. The City of Tulsa desired to develop an industrial park adjacent to what would become the Port. The plaintiff sought an injunction to prohibit bringing the bond issue to a vote of the people. He contended that the contemplated land acquisition and its development was for a private rather than a public purpose, and that it violated Article 10, §§ 14, 15 and 17 of the Oklahoma Constitution. This Court recognized that some states, including Oklahoma, authorized issuance of revenue bonds by the state, an agency thereof, or a political subdivision, to aid in attracting, acquiring and developing industry within the state. Sublett, 1965 OK 78, ¶ 24, 405 P.2d at 193. The Court cited decisions of other jurisdictions as demonstrating the modern theory of approving publicly financed industrial development programs as constituting a public use or purpose for municipal development that justified special treatment because of obvious public need. Sublett, 1965 OK 78, ¶ 30, 405 P.2d at 194-195.

20 The Court held that the acquisition of land in proximity to the Port of Catoosa was necessary to the successful development of the port and fell within the legal definition and requirements of a public use or purpose. The Court continued that taxes levied under the proposed ordinance would be expended for a public purpose within the meaning and intent of our Constitution, and that such an expenditure was neither a pledge of the state's credit, nor an appropriation of money in aid of private enterprise or for a private purpose. The Court concluded that the acquisition of land and the development for industrial purposes by the port authority with aid of funds derived from the proposed bond issue would not violate Okla. Const. Art. 10, §§ 14, 15 and 17. Sublett, 1965 OK 78, 1 37, 405 P.2d at 196-197.

B. , Has the City Forced the County to Surrender its Power of Taxation or to Bind the County to a Debt in Violation of Okla. Const. Art. 10, §§ 5, 26?

For propositions VI and VIII, the County argues that in violation of §§ 5 and 26 of the Constitution, the City's ordinances in creating the Guymon-Seaboard Economic Development Project Plan and Increment District force the County to accept a smaller amount of taxes and that this results in the County's surrender of its power of taxation and in essence, a debt for the County that cannot be repaid within a year. The County observes that all of this has been accomplished without a vote of the people. Based on the rules of construction set out above, if the City enacted its ordinances in compliance with Article 10, § 6C, then its actions do not violate the Constitution. Seetion 6C is more recent than either §§ 5 or 26, and as a more recent pronouncement of the people, its provisions control.

{22 The issue here is that which Oklo-homa City Urban Renewal did not decide: whether the creation of the tax increment district requires permission of all taxing entities. Oklahoma City Urban Renewal, 2000 OK 23, ¶ 1, 4 P.3d at 679. The answer lies in the wording of § 6C.

4 23 Subsection C provides that any "city, town or county" may "plan, finance and carry out the development or redevelopment of areas determined by the governing body of such city, town, or county to be unproductive, undeveloped, underdeveloped or blighted." In this case, the City of Guymon took this step through its ordinances. Subsection C continues that "The authority of the county shall be limited to the unineorporated areas of such county...." An agreement is necessary for any joint development plan. One commentator observed:

"[Tlhe political subdivision establishing the increment district is the ultimate decision-maker in capturing ad valorem tax revenue resulting from new investment. The other taxing entities do not contract or even resolve to accept deprivation of ad valorem tax revenue. These other entities may comment and may cause an implementing city, town, or county to change its plan, but such change is a result of the public opinion and perception such entities may inspire, and is not due to any decision-making authority set out in the law. These entities do have approval power of any use of any other local taxes or fees."

We agree. Title 62 0.8.2001, § 861(A) provided that the base assessed value of ad valorem taxes from the increment district would be apportioned to each taxing entity. 62 00.98.2001, § S61(A)(1) The increment above the base amount was to be paid to the city, town or county approving the plan. 62 ©.98.2001, § 8S61(A)(2). This wording is consistent with Okla. Const. art. 10, $ 6C. The Local Development Act does not require an annual appropriation by each of the taxing entities, nor does the Oklahoma Constitution.

124 Both the City and the County, the parties to this action, were represented fully by their designated parties on the Review Committee that unanimously approved the Project Plan. Without the project itself, there would be no tax increment, and no new tax revenues generated in the area designated as Tax District No. 1. The trial court properly found that the consent of the affected tax entities is not required for the approval of a project plan or the establishment of an increment district.

V. STATUTORY ISSUES

125 Proposition II argues that the desired investment, development and economic growth would likely have occurred even without the tax increment district. The County cites 62 0.8.Supp.1992, § 852(2), 1992 Okla.Sess.Laws, c. 342, § 3, which provides:

"It is the intent of the Legislature that the provisions of this act be used in accordance with the following guidelines ...
"2. That the tools of this act not be used in areas where investment, development and

economic growth would have occurred anyway and that the governing body take care to exclude areas that do not meet this criteria. ..."

{26 The County argues a factual question that the trial court found against them. The court specifically found that the economic growth and investment experienced by Guy-mon and Texas County since 1998 would not have occurred without the measures taken under the Act. The County fails to show how the trial court abused its discretion. We therefore affirm the trial court's decision.

127 For proposition III, the County asserts that 62 O0.8.8upp.1992, § 855, 1992 Okla Sess.Laws, ch. 342, § 6, requires a member of the Texas County Excise Board, the Texas County Assessor, and the Texas County Treasurer to be on the review committee. The trial court in its Journal Entry of Judgment correctly cited 1992 Okla.Sess. Laws, c. 342, § 4, codified as § 853(17) of title 62 in the original act. That subsection defines "taxing entity" as "a city, town, county, school district, political subdivision or other local entity in which local taxes or fees are levied by or on its behalf." The parties named are not taxing entities even though they work for the county. The county was represented by a county commissioner. This proposition is without merit.

T28 Proposition IV contends that the County was entitled to a written agreement with the City before the tax increment district became effective. We have already addressed this argument above. Consent of the affected tax entities is not required for the approval of a project plan or the establishment of an increment district. If consent is not required, clearly no written agreement is required.

29 Proposition V maintains that the City failed to heed the advice of the Oklahoma State Bond Advisor. Title 62 0.8.2001, § 863(J) provides: "All bonds issued pursuant to the provisions of this section shall be reviewed by the Oklahoma State Bond Advis- or who will give a recommendation on such bonds to the issuing entity." The County quotes from a letter from the State Bond Advisor stating his opinion that the statutory requirements had been satisfied, but that the constitutionality of the particular issue had not been addressed in the courts. The letter suggested careful consideration of the consequences of the legal issues and that the potential liability be discussed with bond counsel. The County fails to show what, if any, recommendation was not followed, and cites no authority and no argument concerning how any alleged failure prejudices the project. This proposition is meritless.

VIL. MOTION FOR NEW TRIAL

T30 In a two sentence argument, the County claims error for the trial court to deny its motion for a new trial. This Court has found against the County on every proposition of error, therefore the trial court did not err in denying the County's motion.

VIL MOTION FOR STAY

T31 The County contends that the trial court committed reversible error in denying its motion to stay execution of its writ of mandamus. We disagree. The record before us establishes that the City showed irreparable harm would have resulted if the trial court stayed the execution of the writ.

CONCLUSION

T32 Based on the record before us, we determine that each of the County's contentions lacks merit. We hold that the City's creation of the Guymon-Seaboard Economic Development Project Plan and Increment District complied with provisions of the Constitution of Oklahoma and The Local Development Act. The trial court did not err in denying the County's motions for new trial, and stay. - Neither did the court err in granting the City a writ of mandamus against the County.

T33 Finally, all motions for leave of court to appear amicus curiae are denied. The County's motion for oral argument is denied. The City's motion to strike the County's reply brief because the County injected a new issue not raised in its motion for new trial or petition in error, is granted in part. The Article 10, § 6B argument (section III of the reply) and supporting attachments have not been considered as they are violations of Okla Sup.Ct.R. 1.11). They are hereby stricken.

THE JUDGMENT OF THE TRIAL COURT IS AFFIRMED.

Coneur: WATT, C.J., HODGES, LAVENDER, HARGRAVE, KAUGER, BOUDREAU, EDMONDSON, JJ.

Coneurs in part; Dissents in part: OPALA, V.C.J.

      . The appellants are: Charles Butler, Chairman, Art Twombly, Member, and Joe Mayer, Former Member, Texas County Excise Board, Thyra Grounds, Texas County Treasurer, and Board of County Commissioners, Texas County, Oklahoma.

      . The Local Development Act has been amended multiple times since its enactment. The parties do not argue which version of the Act is applicable under the separate propositions, but cite, in most instances, to only the title and the applicable section. Because this controversy involves tax year 2001, we shall cite to 62 0.S.2001, §§ 850 et seq. unless otherwise noted. Parties to an appeal should cite statutes from the most recent decennial compilation, or to the latest supplement if the statute has been amended, unless another date applies to the controversy.

      . Article 10 § 6C provides:
      "A. The Legislature, by law, may grant incorporated cities, towns, or counties the ability to provide incentives, exemptions and other forms of relief from taxation for historic preservation, reinvestment, or enterprise areas that are exhibiting economic stagnation or decline. Relief from taxes imposed by other local taxing jurisdictions shall only be allowed by contractual arrangement with the municipal or county governing body. The law shall require public hearings before such relief may be granted and shall provide for the local initiative power and referendum of the people. The Legislature may set limitations on the cumulative incentives and relief provided pursuant to the provisions of this section, the time period for the exemptions, the geographical area of the jurisdiction covered, the percentage of the tax base of the jurisdiction eligible for the relief programs, and threshold limits of investment credit and jobs created.
      "B. The Legislature, by law, may authorize that the cities, towns, or counties may specifically use local taxes and local fees, in whole or in part, for specific public investments, assistance in development financing, or as a specific revenue source for other public entities in the area in which the improvements take place and may direct the apportionment of the taxes and fees specified in this subsection for the purposes specified in this section. The Legislature may establish for this subsection, the same procedures and limitations authorized in subsection A of this section.
      "C. The Legislature, by law, may authorize any city, town, or county to plan, finance and carry out the development or redevelopment of areas determined by the governing body of such city, town, or county to be unproductive, undeveloped, underdeveloped or blighted. The authority of the county shall be limited to the unincorporated areas of such county but any city, town or county may by agreement jointly plan, finance or carry out a development plan with any other public or private entity for one or more development projects within their respective boundaries.
      "D. Any city, town, or county may exercise the provisions of this section separately or in combination with powers granted by any other laws of this state." >
      Added by State Question No. 641, Legis. Ref. No. 287, adopted at election held November 6, 1990.

      . Okla, Const. art. 10, § 14 provides: " § 14. Levy and collection by general laws and for public purposes-Assumption of debts.
      "Taxes shall be levied and collected by general laws, and for public purposes only, except that taxes may be levied when necessary to carry into effect Section thirty-one of the Bill of Rights. Except as required by the Enabling Act, the State shall not assume the debt of any county, municipal corporation, or political subdivision of the State, unless such debt shall have been contracted to defend itself in time of war, to repel invasion, or to suppress insurrection."

      . Vincent, Brenda, Tax Increment Financing And Similar Incentives Stimulate Oklahoma's Economy, Journal of Multistate Taxation, (June 2001), 2001 WL 670173 (Westlaw 2004).

      . 62 0.$.2001, § 861 has been amended by 2003 Okla.Sess.Laws, ch. 255, § 7.

      . 2000 Okla.Sess.Laws, ch. 351, § 4(A)(1) provided:
      "A. A project plan may contain a provision that the increments from certain local taxes or fees may be used to finance project costs in areas qualified under the Local Development Act. The increment from local taxes or fees levied from and after the effective date of the approval of such plan shall be apportioned in the following manner for a period not to exceed twenty-five (25) years or the period required for payment of project costs, whichever is less:
      "1. That portion of the ad valorem taxes which are produced by the levy at the rate fixed each year by or for each such ad valorem taxing entity upon the base assessed value of the increment district determined pursuant to Section 862 of this title and as to an area later added to the increment district, the effective date of the addition to the increment district, shall be paid to each taxing entity and all or any portion of local sales taxes, other local taxes or local fees collected each year which are not subject to apportionment shall be paid or retained as otherwise provided by law; and ..."

      . 2000 OKka.Sess.Laws, ch. 351, § 4(A)(2) provided:
      "2. All or any portion of:
      "a. ad valorem taxes, in excess of such amount specified in paragraph 1 of this subsection,
      "b. the increment of local sales taxes, other local taxes or local fees, or a combination thereof, paid to or for the benefit of the city, town, or county approving the plan, and
      "c. with its consent, evidenced by agreement in writing, the increment of local sales tax, other local taxes or local fees, or combination thereof, payable to any other local public taxing entity, "shall be apportioned to, and when collected, shall be paid into an apportionment fund established for the project pursuant to the project plan. Such revenues shall be used for the payment of the project costs and for the payment of the principal of, the interest on, and any premiums due in connection with the bonds of, loans, notes, or advances of money to, or indebtedness incurred to finance project costs, whether funded, refunded, assumed, or otherwise, for financing, in whole or in part, eligible project costs. Nothing shall prohibit the increments from being used to directly pay eligible project costs. When all eligible project costs and such bonds, loans, advances of money or indebtedness, if any, including interest thereon and any premiums due in connection with them, have been paid and the governing body adopts an ordinance or resolution dissolving the tax apportionment financing, all ad valorem taxes upon the taxable property within the boundary of such district shall be paid into the funds of the respective taxing entities."

      . Superceded by 2003 Okla.Sess.Laws, c. 255, § 3.


source: Caselaw Access Project

author: HARGRAVE, J.

license: Public Domain

text:
    2004 OK 36
    The ESTATE OF Ilar HICKS, Deceased, by and through its Personal Representative, Rickie Dean SUMMERS, Petitioner, v. URBAN EAST, INC., d/b/a Edwards Redeemer Nursing Center, an Oklahoma corporation, Respondent.
    No. 99,432.
    Supreme Court of Oklahoma.
    May 25, 2004.

      Thomas J. Steeee, Robert T. Kincaid III, Michael L. Velez, Oklahoma Legal Services, P.L.L.C., Oklahoma City, OK, for petitioner.
    Inona Jane Harness, Michael J. Heron, Roe T. Simmons, Haven Tobias, Pierce Couch Hendrickson Baysinger & Green, L.L.P., for respondent.
   HARGRAVE, J.

{1 Petitioner (plaintiff) sued Respondent (defendant) for wrongful death of plaintiff's decedent under several theories of recovery. Plaintiff alleged injuries and damages sustained as a result of the wrongful death of Tlar Hicks that were caused as a result of the acts, conduct and/or omissions of the defendant. The petition alleges that Har Hicks died as a result of sepsis, with a secondary condition of cardiac failure. Plaintiff alleges that the death is a direct result of the negligent acts, conduct and/or omissions to act, including negligent supervision and/or care and/or abuse by the defendant. Plaintiff states that Ilar Hicks was admitted to the nursing center on or about March 22, 1994, and that she left the nursing center on May 28, 1998, as a result of the alleged negligent actions. Ilar Hicks transferred to another nursing facility where she died on May 26, 1998.

2 Plaintiff pled causes of action under the Nursing Home Care Act, 68 0.8. § 1-1900.1 et seq., the Consumer Protection Act, 15 0.8. § 751, et seq., common law negligence and breach of contract. Plaintiff also seeks an award of punitive damages. - Defendant moved to dismiss the claims brought under the Consumer Protection Act and for breach of contract, asserting that the contract claim was derivative of the underlying tort claim authorized by the Nursing Home Care Act and that the regulation of nursing homes does not fall within the scope of Oklahoma's Consumer Protection Act, and specifically falls within an exemption to the Consumer Protection Act. The trial judge dismissed the two claims and certified the matter for immediate interlocutory appeal under 12 0.$.2001 § 952(b)(8). We granted the petition to review the certified interlocutory order. Plaintiff filed a motion for oral argument. The motion for oral argument is denied.

3 The trial judge in this case ruled that:

a) The Act creates a statutory tort for private residents to redress violations of the rights conferred by the Act. As such, an action by residents or individuals entitled to bring private actions to redress the rights conferred by the Act sound in tort, not contract. Therefore, Defendant's Motion to Dismiss Plaintiff's breach of contract claim/cause of action is Sustained.
b) The Oklahoma State Department of Health, through the Oklahoma Nursing Home Care Act regulates the operation and licensing of nursing homes in the State of Oklahoma. As such, the provisions of the Nursing Home Care Act supercede the Oklahoma Consumer Protection Act. Accordingly, plaintiff has no remedy under the provisions of the Oklahoma Consumer Protection Act and Defendant's Motion to Dismiss Plaintiffs Consumer Protection Act claim/cause of action is Sustained.

T 4 The trial judge certified her rulings for interlocutory order to this Court to determine whether the trial court was correct to dismiss plaintiff's claim against a nursing home for breach of contract and whether the trial court was correct to dismiss plaintiff's Consumer Protection Act claim. The case is before us to review the trial court's rulings on a motion to dismiss, not on a motion for summary judgment. Our review is limited to the questions presented as a result of the trial court's ruling on the motion to dismiss: these are the only proper issues to be determined in this Court by our order granting certiorari.

15 A trial court's dismissal of an action for failure to state a claim is reviewed de movo. Lockhart v. Loosen, 1997 OK 108 ¶ 4, 948 P.2d 1074. The function of a motion to dismiss is to test the law of the claims, not the facts supporting them. Zaharias v. Gammill, 1992 OK 149, 844 P.2d 137, 1838. In assessing the sufficiency of a petition, the general rule is that a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle her to relief. Id. The question, on a motion to dismiss, is whether, taking all of plaintiff's allegations as true, she is precluded from recovering as a matter of law. Patel v. OMH Medical Center, Inc., 1999 OK 33 ¶ 43, 987 P.2d 1185, 1202, reh. den., cert. den. 528 U.S. 1188, 120 S.Ct. 1242, 146 L.Ed.2d 100. The appropriate question in testing the sufficiency of the allegations in the complaint which is subject to a motion to dismiss is whether relief is possible under any set of facts that could be established consistent with the allegations. Boren v. Thompson & Associates, 2000 OK 3 ¶ 25, 999 P.2d 438, 447.

CONTRACT CLAIM

T6 The district court determined that the Nursing Home Care Act created a statutory tort and that therefore all claims brought thereunder sound exclusively in tort. For that reason, the trial court determined that plaintiff's breach of contract claim must fail. The question is whether the Nursing Home Care Act is plaintiff's exclusive remedy for the breaches alleged.

T7 The Nursing Home Care Act appears at 63 0.98.2001 § 1-1900.1 et seq. The Act covers, among other things, the licensing and regulation of nursing homes. Section 1-1918 sets out the rights and responsibilities of nursing homes, and provides for remedies and penalties for violations. The section is referred to as the "Nursing Home Patients' Bill of Rights." Subsection (G) of Section 1-1918 provides that an action may be brought against an individual by any resident who is injured by any violation of the section. If damages are alleged and proved the plaintiff is entitled to recover the actual damages sustained by the plaintiff, and punitive damages may be assessed if it is proved that the defendant's conduct was willful or in reckless disregard of the rights provided by the seetion.

T8 In Morgan v. Galilean Health Enterprises, Inc., 1998 OK 130, 977 P.2d 357, this Court interpreted § 1-1918 as creating a statutory tort, with a private right of action for nursing home residents or their guardians to redress a violation of rights conferred by the Act. The issue was whether the vieto-rious plaintiff was entitled to attorney fees allowed to a prevailing party under the Nursing Home Care Act. Galilean argued that the suit was tried as a common law negligence action and not as a claim for breach of duties imposed by the Nursing Home Care Act, and that, accordingly, the attorney fees allowed under the Nursing Home Care Act were not available to the plaintiff. We disagreed, on the ground that regardless of whatever the theory of plaintiff's lawsuit may have been at its inception, the jury verdict rested upon an instruction that incorporated the provisions of the Nursing Home Care Act.

T9 The instruction in question in Galilean charged the jury that in addition to the duty to exercise ordinary care, there were also duties imposed by statutes. We said that in that instruction, the court charged that apart from the common-law duties owed to the resident, Galilean was also bound by certain statutory obligations. The action was submitted to the triers of fact not solely as a common law tort, but also as a breach of duties imposed by the Nursing Home Care Act. Because the parties settled the underlying judgment in that case, we could not, on appeal, look at the evidence to determine whether that instruction was warranted based on plaintiff's evidence.

10 We did not decide, in Galilean, that the statutory tort was a plaintiff's exclusive remedy. The defendant in Galilean had argued that no private right of action in tort was created by the Nursing Home Care Act, but rather that the Act only authorized private actions for injunctive or preventive relief. In rejecting that argument, we looked to subsection (F) of 68 O.S. Supp.1992 § 1-1918 and determined that it created a statutory tort. We said that the so-called Nursing Home Patients' Bill of Rights shapes the standard of care to govern in the nursing home setting and that a nursing home operator's breach of any enumerated duty gives rise to a private right of action under the Act. 977 P.2d at 861.

T11 Galilean dealt with § 1-1918 of the Act. In addition to the remedies provided in section 1-1918, however, the Nursing Home Care Act specifically provides that the plaintiff may seek any recovery permitted by law. Section 1-1989 of the Act provides, in pertinent part:

§ 1-1989. "Liability to residents-Injunctive and declaratory relief-Damages-Waiver of rights-Jury trial-Retaliation against residents-Immunity-Report of abuse or neglect."
A. The owner and licensee are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident....
B. A resident may maintain an action under this act for any other type of relief, including injunctive and declaratory relief, permitted by law.
C. Any damages recoverable under this section, including minimum damages as provided by the section, may be recovered in any action which a court may authorize to be brought as a class action. The remedies provided in this section, are in addition to and cumulative with any other legal remedies available to a resident. Exhaustion of any available administrative remedies shall not be required prior to commencement of suit hereunder. (emphasis added).

112 Section 1-1989 provides that a resident may maintain an action under the act for any other type of relief permitted by law. It also provides that the remedies in the section are in addition to and cumulative with any other legal remedies available to a resident. This section clearly reflects the intent of the legislature that the Nursing Home Care Act was not intended to be a resident's exclusive remedy.

1183 In Rogers v. Meiser, 2003 OK 6, 68 P.3d 967, considering a similar question under the Residential Property Condition Disclosure Act, we held that the Residential Property Condition Disclosure Act (RPCDA) did not abrogate a common law actual fraud claim. In that case the trial court had dismissed the fraud claim, finding that the RPCDA had abrogated any theories of liability not arising under or permitted by the RPCDA. We reversed, finding that the RPCDA neither expressly, nor by necessary implication, abrogated rights previously existing at common law. In the case at bar, the Nursing Home Care Act specifically provides that a resident is entitled to pursue other legal remedies that he or she may have.

T 14 In Finnell v. Jebco Seismic, 2003 OK 35, 67 P.3d 339, 344, this Court held that an action for breach of contract and an action in tort may arise from the same set of facts and that a person injured by the substandard performance of a duty derived from a contractual relationship may rely on a breach of contract or tort theory, or both. Where a contract is the mere inducement creating the state of things that furnishes the occasion for a tort, the tort, not the contract is the basis of the action. This is so, we said, because there is inherent in every contract a common-law duty to perform its obligations with care, skill, reasonable experience and faithfulness. A person injured by the substandard performance of a duty derived from a contractual relationship may rely on a breach of contract or tort theory, or both, but even if the evidence supports both, the claimant can achieve but a single recovery. 67 P.3d at 844.

€ 15 In Finmell we said that the court will craft the available relief that is justified by the facts. We stated that notice pleading requires of the petition only that it give fair notice of the plaintiff's claim and the grounds upon which it rests. This regime abolishes any requirement that a litigant correctly identify a theory of recovery or describe the remedy affordable for vindication of asserted rights. Title 12 0.9.2001 $ 2008(A) directs a party to set forth a short and plain statement of the claim consisting of simple, concise and direct averments showing that the pleader is entitled to relief Section 2008(E)(2) provides that a party may set forth, and at trial rely on, two or more statements of a claim alternately or hypothetically, either in one count or in separate counts. A party may also state as many separate claims as he has, regardless of consistency and whether based on legal or equitable grounds. Title 12 0.8. 2001 § 2009 sets out the requirements for pleading special matters, including capacity, fraud, mistake, condition of the mind, conditions precedent, and special damages, among other things.

116 We do not have the contract before us in the case at bar-it is not included in the record. Defendant states in its brief that no contract was presented to the trial court. It appears from plaintiff's brief that there may not be a contract between plaintiff's decedent and the defendant, but that there was a contract between Medicare/Medicaid and the defendant to which plaintiff claims third-party beneficiary status. Plaintiff argues that when state or federal funds are received, a "global contract" between the nursing home and the government agency providing the funds governs the relationship, in lieu of an individual contract, and that such a contract forms the basis of the Plaintiff's breach of contract claim. Plaintiff states that plaintiff's decedent was receiving federal Medicare/Medicaid funds and was a third-party beneficiary to the contract between the defendant and the federal government. Plaintiff's brief asserts that a contract "either written or oral" provides the basis for the breach of contract and tort claims.

1 17 Accordingly, it remains for determination in the trial court whether there is a contract, what the terms of the contract are, whether plaintiff's decedent was a third-party beneficiary to the contract, and whether plaintiff is able to prove a claim for breach of contract under the facts of this case. At this pleading stage of the proceeding we cannot find that plaintiff has failed as a matter of law to state a claim for breach of contract. As we said in Zaharias v. Gammill, 1992 OK 149, 844 P.2d 187, 141:

"Based upon the allegations made in his petition, it appears that Zaharias could perhaps prove a set of facts which would entitle him to relief under an intentional infliction of emotional distress theory. Therefore, the trial court erred in dismissing Zaharias's intentional infliction of emotional distress cause of action for failure to state a claim upon which relief can be granted."

1 18 We said in Finnell, supra, at p. 344 that a person injured by the substandard performance of a duty derived from a contractual relationship may rely on a breach of contract or tort theory, or both, but can achieve but a single recovery, even if the evidence supports both. We find that the trial court erred in dismissing plaintiff's contract claim at this stage of the proceedings. Whether plaintiff's claim will stand supported by the evidence remains to be determined.

CONSUMER PROTECTION ACT CLAIM

%19 Plaintiffs third cause of action asserts a claim for violation of Oklahoma's Consumer Protection Act. The plaintiff re-alleged the preceding paragraphs of the petition, and further alleged that defendant or its employees solicited plaintiff with "false, fraudulent and misleading representations and/or assurances and/or promises which are contrary to and in violation of Oklahoma's Consumer Protection Act, 15 0.8. § 751 et seq."

1 20 Plaintiff further pled that, as a direct result of the false, fraudulent and misleading solicitation of the defendant or its employees by representing the degree and standard of care and treatment that could and/or would be provided to plaintiff, plaintiff has sustained damages in a sum in excess of ten thousand dollars.

[ 21 Defendant moved to dismiss plaintiff's claim on the grounds that the regulation of nursing homes does not fall within the scope of Oklahoma's Consumer Protection Act, and specifically falls within the exemption from the Consumer Protection Act found at 15 0.8. § 754 for "actions or transactions regulated under laws administered by the Corporation Commission or any other regulatory body or officer acting under statutory authority of this state or the United States ..." The trial judge granted the motion to dismiss, finding that the Oklahoma State Department of Health, through the Oklahoma Nursing Home Care Act regulates the operation and licensing of nursing homes in the State of Oklahoma and that therefore the provisions of the Nursing Home Care Act supercede the Oklahoma Consumer Proteetion Act.

{22 Oklahoma's Consumer Protection Act is codified at 15 0.8.2001 §$ 751 et seq. The Act applies to consumer transactions, which are defined as: the advertising, offering for sale or purchase, sale, purchase, or distribution of any services or any property ... or any other article, commodity, or thing of value wherever located, for purposes that are personal, household or business oriented. 15 O.S. § 752(2).

123 The list of unlawful practices under the Consumer Protection Act is set out at 15 O.S8. § 758. This section provides that a person engages in a practice which is declared to be unlawful under the Oklahoma Consumer Protection Act when, in the course of the person's business, the person, among other practices listed:

5) Makes a false representation, knowing ly or with reason to know, as to the characteristics, ingredients, uses, benefits, alterations, or quantities of the subject of a consumer transaction or a false representation as to the sponsorship, approval, status affiliation or connection of a person therewith.
8) Advertises, knowingly or with reason to know, that the subject of a consumer transaction with intent not to sell it as advertised.
20) Commits an unfair or deceptive trade practice as defined in Section 752 of this title;

124 Section 752 defines an unfair or deceptive trade practice:

11) Deceptive trade practice means a misrepresentation, omission or other practice that has deceived or could reasonably be expected to deceive or mislead a person to the detriment of that person. Such a practice may occur before, during or after a consumer transaction is entered into and may be written or oral;
12) Unfair trade practice means any practice which offends established public policy or if the practice is immoral, unethical, oppressive, unserupulous or substantially injurious to consumers.

125 The Consumer Protection Act exempts transactions regulated under laws administered by any regulatory body acting under statutory authority of the state or United States. The exemptions are set forth in § 754:

§ 754. Exemptions
Nothing in this act shall apply to:
ok
2. Actions or transactions regulated under laws administered by the Corporation Commission or any other regulatory body or officer acting under statutory authority of this state or the United States, or to acts done by retailers or other persons acting in good faith on the basis of information or matter supplied by others and without knowledge of the deceptive character of such information or matter.

126 The listed exemption applies to "actions or transactions" that are regulated under laws administered by any regulatory body acting under statutory authority of this State. Plaintiff has pled that due to the false, fraudulent and misleading solicitations of the defendant representing the degree and standard of care and treatment that would be provided, plaintiff was injured.

127 The Nursing Home Care Act, in seetion 1-1900.1(A), enacted by Laws.2001 c. 428 § 1, provides that the act shall be known and may be cited as the "Long-Term Care Reform and Accountability Act of 2001." Seetion 1-1900.1(B) states that the purpose of the Act is to design, develop and implement policies and procedures that improve the quality of care provided in this state's long-care delivery system for the elderly and disabled. 638 0.98.2001 $ 1-1900.1(B).

4[ 28 The Nursing Home Care Act contains extensive provisions for regulation of the nursing home industry. The Act sets out the procedure for licensing and certification of nursing homes, as well as penalties for violations. Section 1-1906 provides that a license may be denied, suspended or revoked for the reasons listed therein. Section 1-1908 requires compliance with other current licensing requirements and requires that the building be of fire-resistant construction and approved by the Department of Health and the State Fire Marshal. Section 1-1911 provides that every licensed establishment shall be periodically inspected by a representative of the Oklahoma Department of Health, pursuant to rules promulgated by the State Board of Health with the advice and counsel of the Long-Term Care Facility Advisory Board created by section 1-1928 of the Act.

129 Under the Act, notice must be given of a violation, and the right to a hearing is provided. The Department of Health may take remedial action, impose administrative penalties, place a monitor or temporary manager in the facility, issue a conditional license or suspend or revoke a license, upon notice to the licensee. Section 1-1912. Section I-1916 sets out a list of prohibited acts and makes violation of the section a misdemean- or. Section 1-1916.1 establishes penalties for violations of the Act. Section 1-1918 sets out the rights and responsibilities under the Act and provides for penalties and a private right of action.

T 30 Section 1-1921 sets out the provisions to be included in the resident's contract with the nursing home. Section 1-1922 requires each facility to establish a residents' advisory council that communicates to the administrator the opinions and concerns of the residents in addition to reviewing procedures for implementing residents' rights and facilities responsibilities. Section 1-1925 sets out minimum standards for facilities that shall be prescribed by the Oklahoma Department of Health and submitted to the Legislature. These standards regulate the location and construction of the facility, number and qualifications of all personnel, sanitary conditions, diet, equipment and a program of rehabilitation for residents.

31 Section 1-1929 instructs the Oklahoma Department of Health to develop rules and regulations for the transfer of residents initiated by the Department in emergency situations. Section 1-1989 sets out liabilities of the owner and licensee to residents, and provides for injunctive and declaratory relief, as well as damages. Section 1-1950.1 provides for criminal arrest checks on certain persons offered employment by the employer.

1 32 The "action or transaction" in the case at bar involves the services and level of care alleged to have been wrongfully represented to plaintiff's decedent. As such, the action or transaction is regulated under laws administered by the Oklahoma Department of Health, as mandated by the Nursing Home Care Act. This places the action or transaction squarely within the exemption to the Oklahoma Consumer Protection Act found at § 754(2).

133 This Court previously has found, in Galilean, supra, that the purpose of the Act was to provide better quality care for residents of nursing homes. The Nursing Home Care Act is a statutory scheme that sets out the duties of the Department of Health, regulation of the nursing home industry, the services to be provided residents, and it provides remedies and penalties for breaches of the Act. We find that the plaintiffs claim under the Consumer Protection Act must fail because the provision of care and medical services by nursing homes is regulated under laws administered by the Oklahoma Department of Health under the Nursing Home Care Act, and as such falls within the exemption to the Consumer Protection Act described at 15 0.9$.2001 § 754(2). The trial court did not err in dismissing plaintiff's claim asserted under the Oklahoma Consumer Protection Act.

TRIAL COURTS ORDER AFFIRMED IN PART, REVERSED IN PART; CAUSE REMANDED FOR FURTHER PROCEEDINGS.

«[ $4 ALL JUSTICES CONCUR.

      . Plaintiff refers in the petition and briefs to "defendants" in the plural. Defendant points out that there is only one defendant.

      . Portions of the act have been amended. See 63 O0.S. Supp.2003 § 1-1903 et seq. Subsection (G) of § 1-1918, discussed below, now appears as subsection (F).

      . Section 1-1918(G) provides:
      "In addition to the penalties provided in this section, an action may be brought against an individual by any resident who is infured by any violation of this section, or who shall suffer injury from any person whose threats would cause a violation of this section if carried through, may maintain an action to prevent, restrain or enjoin a violation or threatened violation. If a violation or threatened violation of this section shall be established in any action, the court shall enjoin and restrain or otherwise prohibit the violation or threatened violation and assess in favor of the plaintiff and against the defendant the cost of the suit, and reasonable attorney fees incurred by the plaintiff. If damages are alleged and proved in the action, the plaintiff shall be entitled to recover from the defendant the actual damages sustained by the plaintiff. If it is proved in an action that the defendant's conduct was willful or in reckless disregard of the rights provided by this section, punitive damages may be assessed."

      . As a result, we need not address plaintiff's constitutional challenges.

      . The Act was amended by Laws 2002, c. 296 § 3, eff. Nov. 1, 2002; Laws 2003, c. 61 § 2, eff. Nov. 1, 2003.

      . Section 1-1901 provides that the Act shall be known and may be cited as the "Nursing Home Care Act." For consistency, we refer to the act as the Nursing Home Care Act.


author: BOUDREAU, J.

text:
    2004 OK 38
    Caroline MARTIN, Plaintiff/Appellant, v. ARAMARK SERVICES, INC., Defendant/Appellee.
    No. 99,878.
    Supreme Court of Oklahoma.
    May 25, 2004.

      John Mac Hayes, Oklahoma City, OK, for plaintiff/appellant, Caroline Martin.
    Kevin R. Donelson, Fellers, Snider, Blankenship, Bailey & Tippens, P.C., Oklahoma City, OK, for defendant/appellee, Aramark Services, Inc.
   BOUDREAU, J.

T1 Appellant, Caroline Martin (Martin), appeals the district court's order granting Aramark Services, Inc's (Aramark) motion for summary judgment which the Court of Civil Appeals, Division I, affirmed. We reverse the trial court's order granting summary judgment in favor of Aramark.

I. FACTS AND PROCEDURAL HISTORY

T2 Martin filed suit against Aramark for injuries sustained as a result of falling in a tunnel hallway which leads from Saint Anthony Hospital, where she worked, to the employee parking garage. At the time of Martin's fall, an Aramark employee was working in the tunnel stripping and waxing the floor. Martin claimed that she fell because of Ara-mark's failure to adequately warn her of the dangerous condition existing on the tunnel floor.

13 Aramark filed a motion for summary judgment maintaining it took reasonable care in warning invitees, including Martin, of the potentially dangerous condition on the floor. The trial court granted Aramark's motion. Martin appealed and the Court of Civil Appeals, Division I, affirmed the summary judgment finding Aramark satisfied its duty to warn Martin of a potentially dangerous condition on the floor. 'We previously granted certiorari.

II. STANDARD OF REVIEW

T4 Whether summary judgment was properly entered is a question of law which we review de novo. Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455. In a de movo review, we have plenary, independent and non-deferential authority to determine whether the trial court erred in its application of the law and whether there is any genuine issue of material fact. Kluver v. Weatherford Hosp. Auth., 1998 OK 85, ¶ 14, 859 P.2d 1081, 1084. Like the trial court, we examine the pleadings and summary judgment evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1058. We view the facts and all reasonable inferences arising therefrom in the light most favorable to the non-moving party. Id.

III. ANALYSIS

T5 It is undisputed that Martin was an invitee. Aramark, as invitor, had the duty to exercise reasonable care to keep the premises in a reasonably safe condition and to warn Martin of conditions which were in the nature of hidden dangers, traps, snares or pitfalls Rogers v. Hennessee, 1979 OK 138, 602 P.2d 1033, 1034. However, Aramark had no duty to protect against or warn Martin of dangers which were open and obvious, and which she could have discovered in the exercise of ordinary care. See McKinney v. Harrington, 1998 OK 88, ¶ 9, 855 P.2d 602, 604.

T6 The summary judgment record establishes that on the night Martin slipped and fell an Aramark employee was stripping and applying wax to one side of the tunnel floor which connected the hospital and employee parking garage. Since wax on a floor may not be readily observable, the condition presented by the floor was in the nature of a hidden danger and not one that was open and obvious. As a result, Aramark had a duty to warn Martin of the potentially dangerous condition. In that connection, it is undisputed that Aramark placed two parallel paths of rubber strips, leaving floor space between, on the side of the hallway which remained open for public passage. As a warning to the public of the slippery condition on the floor on the side closed for public passage, Ara-mark placed five yellow "wet floor" signs down the middle of the hallway to separate the side of the tunnel hallway open for public passage from the side that was closed. Although disputed by Martin, the employee stated in his deposition that he also closed the door leading to the side of the hallway that was closed for public passage. It is undisputed that immediately prior to Martin's fall, the employee was standing with a mop and yellow bucket on a rubber strip on the side of the hallway open to public passage.

T7 In her response to Aramark's motion for summary judgment, Martin claimed that under the cireumstances Ara-mark failed to adequately warn her of the dangerous condition posed by the tunnel floors. An invitor must give a warning that is adequate to enable an invitee to avoid harm. See Hull v. Oklahoma City Baseball Co., 1945 OK 194, 163 P.2d 982, 984. Furthermore, if an invitor, after giving a warning, realizes or should realize that the warning is not adequate to protect the invitee from harm or that the invitee has not received or understood the warning, the invitor must provide a more adequate warning or desist in doing the act. See Restatement 2nd, Torts, §§ 341A, 344. The adequacy of a warning is normally a question of fact to be determined by the circumstances of each case.

T8 In support of her response, Martin presented excerpts from her deposition in which she testified that she entered the tunnel hallway on the side open for public passage walking on one path of the rubber strips that had been placed on the floor. As she entered, she observed an Aramark employee standing on one of the rubber strips holding a mop. Because the employee was obstruct, ing her passage, Martin stepped off the rubber strip onto the floor between the strips and immediately fell. The employee Martin observed was later identified as Josh Bates. Bates was in training for the company's environmental services department and, on the day of Martin's fall, was being trained in floor care.

1 9 In addition to her deposition testimony, Martin attached video taped photographs taken from a security camera moments before her fall. One of the photographs shows Bates standing on a rubber strip with a mop. In the photograph, Bates appears to be cleaning the floor between the two parallel paths of rubber strips. She also attached excerpts from Bates' deposition in which he testified that three different people fell in the tunnel hallway that evening all within a thirty to forty minute time frame.

110 Viewing the facts and all reasonable inferences arising therefrom in a light most favorable to the party resisting the motion, as we must do when reviewing the grant of a summary judgment, we find a genuine issue of material fact as to the adequacy of the warning provided by Aramark under the cireumstances of this case. The evidentiary materials attached to the motion and response, and inferences drawn therefrom, could lead a rational fact finder to conclude the following. While stripping and waxing one side of the tunnel hallway, Ara-mark closed it for public passage. To assist the public in negotiating the tunnel hallway, Aramark placed two parallel paths of rubber strips, leaving floor space in between, on the side of the hallway that remained open for public passage. As a warning to the public of the slippery condition on the floor on the side closed for public passage, it placed five yellow "wet floor" signs down the middle of the hallway. However, in addition to stripping and waxing the side closed to the public, Aramark's employee either waxed or wet the floor between the parallel paths of rubber strips on the side open for public passage. As Martin proceeded down the tunnel hallway on a rubber strip, Aramark's employee obstructed her passage and forced her to step around him. As she placed her foot on the floor between the rubber strips, she fell.

1 11 In evaluating the evidentiary material attached to the motion and response, reasonable minds could differ as to whether the warnings were adequate to apprise Martin of the potentially dangerous condition on the hallway floor on the side open for public passage. While the warnings may have adequately conveyed the potentially dangerous condition on the hallway floor on the side closed for public passage, there is a material question of fact as to whether they adequately alerted Martin to the danger presented on the side of the haltway open for public passage. In addition, the fact that three people fell within a span of thirty to forty minutes that evening lends support to the notion that either the warnings were confusing or that the condition was so dangerous that the public could not avoid the harm even after receiving a warning.

$12 The purpose of summary adjudications is not to substitute a trial by affidavit for one by jury, but rather to afford a method of summarily terminating a case when only questions of law remain. Bowers v. Wimberly, 1997 OK 24, ¶ 18, 933 P.2d 312, 316; Stuckey v. Young Exploration Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730. "[When uncontroverted proof lends support to conflicting inferences, the choice to be made between the opposite alternatives does not present an issue of law but rather one for the trier of fact." Walters v. J.C.Penmey Co., Inc., 2003 OK 100, ¶ 13, 82 P.3d 578, 584.

Based on the evidentiary materials presented in connection with the summary judgment motion, we find reasonable minds could differ as to whether Aramark's warnings were adequate under the cireumstances to alert Martin as to the potentially dangerous condition on the floor. The summary judgment motion offered by Aramark in this case falls short of showing the absence of a genuine issue of material fact. The adequacy of Aramark's warning is a question of fact to be determined by the jury. Accordingly, the trial court erred when it entered summary judgment in favor of Aramark.

OPINION OF COURT OF CIVIL APPEALS, DIVISION I, VACATED; SUMMARY JUDGMENT REVERSED.

ALL JUSTICES CONCUR.

      . An invitee is one who uses the premises of another for the purpose of a common interest and mutual advantage. Brown v. Nicholson, 1997 OK 32, ¶ 7, 935 P.2d 319, 321.

      . "Q. Were you walking on the strips when you fell? A. No. I was walking in between them, » because he was standing on the strips." Deposition of Caroline Martin, page 111, line 18-21.


author: JACKSON, Judge:

text:
    2004 UT App 149
    J. Rodney DANSIE, Plaintiff and Appellant, v. Hi-Country Estates Homeowners Association, a Utah non-profit corporation, Defendant and Appellee.
    No. 20030088.
    Court of Appeals of Utah.
    May 6, 2004.

      George A. Hunt, Williams & Hunt, Salt Lake City, for Appellant. |
    Dale F. Gardiner, Parry Anderson & Gard-iner, Salt Lake City, for Appellee.
    Before BENCH, Associate P.J., GREENWOOD and JACKSON, JJ.
   OPINION

JACKSON, Judge:

{1 J. Rodney Dansie appeals the district court's findings and conclusions regarding the existence of an easement over subdivision property belonging to Hi-Country Estates Homeowners Association (Hi-Country), a Utah non-profit corporation. We reverse in part, affirm in part, and remand in part.

BACKGROUND

[ 2 Dansie owns two forty-acre parcels adjacent to the Hi-Country subdivision. Dan-sie initially filed suit more than ten years ago. In his complaint, he alleged various theories supporting the existence of an easement over Hi-Country's roadways. Hi-Country denied the existence of an easement. However, during the course of the proceedings, Hi-Country never denied Dansie's right to use the roadways. Instead, it maintained that Dansie's parcels were subject to Hi-Country's covenants and bylaws. It claimed that Dansie owed Hi-Country for past-due fees, but that as a member of Hi-Country, Dansie was entitled to ingress and egress over the subdivision roads as are other asso-clation members. After trial, the district court determined Dansie's parcels were, in fact, subject to Hi-Country covenants and bylaws, and entered judgment for past-due fees. Thus, the district court did not reach a determination of Dansie's claim of an easement, ruling the issue was moot.

138 In Dansie v. Hi-Country Estates Homeowners Assoc., 1999 UT 62, ¶ 26, 987 P.2d 30 (Dansie I ), the Utah Supreme Court reversed the district court's determination that Dansie's parcels are subject to Hi-Country's covenants and bylaws. It remanded the case "for determination of Dansie's claim of an easement across the Association property" because the issue was no longer moot. Id. at 11 29.

T4 On remand, Dansie claimed that Hi-Country had, before Damsie I, stipulated to the existence of an easement. He argued that because Hi-Country had never disputed Dansie's right to use of the Hi-Country roadways, Hi-Country therefore stipulated to an easement, and that became the law of the case. The district court agreed, concluding that Hi-Country stipulated to the existence of an easement. In its memorandum decision dated 27 October 2000, the district court referred to various statements and writings by Hi-Country's counsel to the effect that Hi-Country never disputed, and in fact the parties stipulated to, Dansie's right to access Hi-Country's roadways. The district court ruled that stipulation amounted to an express easement. However, the district court determined that the easement is personal to Dan-sie, and is not appurtenant to his parcels.

T5 The district court then limited the scope of the easement to Dansie's historic use, which amounted essentially to recreational ingress and egress, and some access for grazing. Finally, the district court apportioned to Dansie costs for maintaining the roadways. It determined that Dansie was liable for maintenance costs on a per-lot basis in the amount of $2,906.

ISSUES AND STANDARDS OF REVIEW

T6 Dansie challenges the district court's determination that the easement is in nature personal to Dansic. We review all conclusions of law for correctness, granting the district court no deference. See Orton v. Carter, 970 P.2d 1254, 1256 (Utah 1998).

T7 Dansie further challenges the district court's findings regarding what the parties intended to be the scope of the easement. We review all findings of fact for clear error, granting the district court great deference in its review of the evidence. See Utah R. Civ. P. 52(a) ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."). "A trial court's factual finding is deemed 'clearly erroneous only if it is against the clear weight of the evidence." Doelle v. Bradley, 784 P.2d 1176, 1178 (Utah 1989) (citation omitted).

18 Finally, Dansie challenges the district court's conclusion that Dansie is obligated to pay for maintenance of the easement on a per-lot basis and on equal footing with the Hi-Country subdivision lot owners. This is an issue of law that we review for correctness. See Orton, 970 P.2d at 1256.

ANALYSIS

I. Existence of the Easement

T 9 The district court determined that Hi-Country stipulated to the existence of an easement in favor of Dansie. That stipulation, according to the district court, was contained in a letter from Hi-Country's counsel, and statements in open court. In the letter and statements, Hi-Country declared that it did not dispute Dansie's right of access, so long as Dansie's land was subject to the CC & Rs. Further, the trial court took evidence to determine the parties' intent regarding the nature and scope of the easement. It ultimately determined that the easement is personal in nature, and thus does not run with the land. It also limited the scope of the casement to prior use (ie., ingress and egress for recreation, and limited grazing access).

110 Hi-Country did not appeal the district court's determination of the existence of an easement. It is axiomatic that we will presume the correctness of lower court rulings that neither party challenges on appeal. Accordingly, we proceed as if Hi-Country made an express stipulation to the existence of an easement.

A. Nature of Easement: In Gross or Ap-' purtenant?

§11 The district court determined the easement to be in gross, rather than an easement appurtenant.

An "easement appurtenant," sometimes called an easement proper, ... "is a privilege which the owner of one tenement has the right to enjoy, in respect to that tenement, in or over the tenement of another person." ...
"The existence of an easement [appurtenant] involves the idea of two distinct tenements: a dominant estate, to which the right is accessorial; and a servient estate, upon which it is a burden or charge."
"An easement in gross is a mere personal interest in the real estate of another, and is not assignable or inheritable. It dies with the person, and it is so exclusively personal that the owner by right cannot take another person in company with him."
The principal distinction between the two classes of easements seems to be that in the easement appurtenant there must be a dominant tenement, while no such element exists in an casement in gross.

Ernst v. Allen, 55 Utah 272, 184 P. 827, 829 (1919) (citations omitted); see also Crane v. Crane, 683 P.2d 1062, 1064 (Utah 1984) ("Since the claimed easement is not appurtenant to any particular dominant estate (none of the plaintiffs owns land adjoining defendants), it is an easement in gross."). Because easements in gross are generally disfavored, see 25 Am.Jur.2d Easements and Licenses § 12 (1996); 28A C.J.S. Easements § 12 (1996), "an easement will never be presumed as personal when it may fairly be construed as appurtenant to some other estate." 25 Am.Jur2d Easements and LI+-cences § 12; see also 28A C.J.8. Easements § 12 ("[A] strong presumption exists in favor of an easement being appurtenant, and the courts ... will favor an easement appurtenant over one in gross.").

{12 The easement at issue here is an "easement appurtenant [because] there [is] a dominant tenement." Ernst, 184 P. at 829. The law presumes the easement to be appurtenant and to run with the land. Nothing in the record indicates the parties intended the easement to be personal in nature to Dansie. Thus, the district court erred in determining the easement to be in gross, and we reverse that ruling. We conclude instead that the easement is appurtenant to Dansie's land.

B. Scope of Easement

§13 In its unchallenged determination that Hi-Country stipulated to the existence of an easement, the district court treated the easement as express. Thus, the stipulation acted as a contract between the parties. The district court treated that contract as one whose terms are ambiguous regarding the easement's scope, because there was no express delineation of what the parties intended the seope to be.

114 If a term to a "contract is ambiguous such that the intentions of the parties cannot be determined by the plain language of the agreement, 'extrinsic evidence must be looked to in order to determine the intentions of the parties' " WebBank v. American Gen. Annuity Serv. Corp., 2002 UT 88, ¶ 19, 54 P.3d 1139 (citation omitted). Further, "lilf a contract is ambiguous, the court may consider the parties' actions and performance as evidence of the parties' true intention." Id. The district court looked to the only evidence available that would indicate what the parties intended. Specifically, the court looked to Dansie's prior use of the easement to determine the seope to which Hi-Country acquiesced. Dansie, on the other hand, offered no evidence that the parties intended anything other than the status quo.

115 Dansie argues that the district court erred by limiting the easement to its historic use. He claims that there was in fact no evidence that the parties intended to limit the easement's scope as the district court did. Instead, he argues that his claim for an unlimited easement, as well as Hi-Country's statements that Dansie should have unlimited access on par with the other members of the homeowners association, stands as clear evidence of the parties' intent for Dansie to have unlimited access to the easement. These pieces of "evidence," however, are unavailing. Dansie's claim for an unlimited easement is entirely self-serving and is not evidence of the parties' intent at the time of the stipulation, and Hi-Country's statements are taken completely out of context. Thus, the record is devoid of any evi-denee that would support Dansie's position.

116 Regardless of the evidentia-ry or logical arguments for a broader or narrower scope, however, Dansie has not properly challenged the trial court's findings regarding the parties' intent. "When ambiguity exists [in a contract], the intent of the parties becomes a question of fact." Id. at 1 22 (quotations and citation omitted).

When an appellant asserts that the evidence is insufficient to support the lower court's findings of fact, "we do not weigh the evidence de novo." Rather, we accord great deference to the lower court's findings.... Moreover, " 'to mount a successful challenge to the correctness of a trial court's findings of fact, an appellant must first marshal all the evidence supporting the finding and then demonstrate that the evidence is legally insufficient to support the findings even viewing it in the light most favorable to the court below." "

Hogle v. Zinetics Med., Inc., 2002 UT 121, ¶ 16, 63 P.3d 80 (citations omitted).

T17 Dansie has not demonstrated "that the evidence is legally insufficient to support the findings," id. (quotations and citation omitted), for at least two reasons. First, he has not marshaled the evidence that supports the finding. Second, the only evidence in the record regarding the intended scope of the easement is Dansie's prior use. This is sufficient evidence to support the district court's finding, and we thus do not disturb it on appeal. Thus, we affirm the district court's rulings regarding the seope of the easement.

IIL. Costs of Road Maintenance

T18 "Absent any agreement on the question of maintenance of a private way, the burden of upkeep should be distributed between dominant and servient tenements in proportion to their relative use of the road, as nearly as such may be ascertained." Aspen Acres Ass'n v. Seven Assocs., Inc., 29 Utah 2d 303, 508 P.2d 1179, 1188 (1978) (internal quotes and citation omitted).

119 In its memorandum decision determining that Dansie is obligated to pay a portion of the maintenance of the roadways, the district court acknowledged the rule in Aspen Acres Ass'n that costs should be divided proportionately. However, in its memorandum decision that actually determined the amount Dansie owed for maintenance, the district court did not base its ruling on Dan-sie's proportionate use. Instead, it determined that Dansie should pay for use of the easement on a per-lot basis, to be calculated in the same way lot owners in the Hi-Country homeowners association are assessed. Dansie does not challenge the district court's determination that he is obligated to pay some portion of the maintenance of the roadways covered by the easement. Instead, he challenges the district court's determination that he may be assessed on a per-lot basis.

120 A per-lot assessment may be a fair method of apportioning the costs of maintaining rights of way between several lot owners, given the parties' uncertain and changing uses of the roadways from day to day and year to year. However, that method is ordinarily agreed upon by the affected lot owners in a homeowners association's bylaws, CC & Rs, or other multilateral agreement. Dansie's ownership of his property is not subject to any such multilateral agreement with Hi-Country or its composite members. Further, per-lot assessments are not the default rule for determining costs. Rather, pursuant to Aspen Acres Assoc., the district court must apportion the maintenance costs according to the parties' "relative use of the road, as nearly as such may be ascertained." Id.

121 A per-lot assessment, such as the district court applied here, does not apportion costs with reference to Dansie's "relative use of the road." Id. In fact, it appears from the record that the district court made no inquiry regarding Dansie's ongoing use of the road. Thus, we remand this issue for the trial court to consider evidence of Dansie's proportionate use of the roadways, and to determine the proportionate maintenance costs pursuant to that use.

CONCLUSION

1 22 The district court erred by concluding the easement is personal in nature. Instead, the easement is appurtenant to Dansie's land, and the ruling of the district court is reversed in this respect. The district court did not clearly err, however, in determining that the parties intended the easement's historic use to constitute its scope. Finally, the district court erred in applying a per-lot assessment of maintenance costs to Dansgie. Instead, it should have determined Dansie's use in proportion to the total use of Hi-Country's members' use, and apportioned Dansie's maintenance costs accordingly. Thus, the district court's ruling in this respect is reversed and remanded for a proper determination.

23 WE CONCUR: RUSSELL W. BENCH, Associate Presiding Judge, and PAMELA T. GREENWOOD, Judge.

      . The district court did not, however, use the term "easement in gross."

      . We are not persuaded by Dansie's argument that the district court considered the easement to be one of necessity. The district court's memorandum decision regarding the easement's scope stated "the parties had stipulated to grant [Dan-sie] an easement." (Emphasis added.) By definition, easements by necessity are not granted; only express easements are.

      . As further support for the district court's finding, we note that Dansie himself insists that the basis of the existence of the easement is Hi-Country's acquiescence, through stipulation, to the easement. If it is true that Hi-Country acquiesced to the easement, and the parties expressed no contrary intention, then it seems only proper that the easement's scope would remain what it had been in the past. In other words, the easement came into existence only because Hi-Country acquiesced to the way Dansie had been using the easement in the past. Dansie cannot now have it both ways, claiming the existence of an easement by stipulation, but claiming further that the easement's scope exceeds the use to which Hi-Country stipulated.