author: OPALA, V.C.J.

text:
    2004 OK 4
    Debbie DeShazo AMOS, Petitioner, v. SPIRO PUBLIC SCHOOLS and The Workers’ Compensation Court, Respondents.
    No. 98,464.
    Supreme Court of Oklahoma.
    Feb. 3, 2004.

      Michael E. Grant, Oklahoma City, OK, for petitioner.
    James B. Cassody, McGivern, Gilliard & Curthoys, Tulsa, OK, for respondents.

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

   OPALA, V.C.J.

¶ 1 The issue on certiorari is whether the Workers’ Compensation Court erred when it dismissed petitioner’s claim for compensation. We answer in the affirmative.

I.

ANATOMY OF THE LITIGATION

¶ 2 On 7 August 1997 Debbie DeShazo Amos (Amos, employee or claimant), a teacher in the Spiro school system (employer or respondent), alleged a job-related injury occurred when she was walking through a school hallway and a child stepped into her pathway. She claimed injury to her right leg and ankle and filed her claim for compensation on 15 June 1998. On 14 August 1997 (one week following her alleged initial job-related injury) Amos pressed a second on-the-job accident by an amended claim brought on 8 June 1999.

¶ 3 On 5 April 2002 Amos moved for a hearing on medical treatment for the period beginning from 7 August 1999. Employer’s amended answer denies Amos sustained a compensable injury and raises the “statute of limitations” as its defense. ' Respondent urges that claimant failed to file (in the trial tribunal) her request for a hearing within the three-year period allowed by the provisions of “85 O.S. § 43(B).”

¶ 4 The trial judge proceeded to hear the evidence and, after taking the matter under advisement, issued an order dismissing the claim as untimely pressed for a hearing. The order concludes that Amos failed timely to request a hearing (within three years of the initial claim’s filing) and that her amended claim “did not serve to toll, arrest, suspend, or waive her duty to pursue her claim” on or before the three-year anniversary of her initial claim’s filing date. The Court of Civil Appeals (COCA), Div. Ill, affirmed the Workers’ Compensation Court (WCC) order.

II.

STANDARD OF REVIEW

¶ 5 The resolution of today’s controversy calls for identification of that § 43(B) version which applies here. A compensation tribunal’s legal rulings, like those by a district court judge, stand on review subject to an appellate court’s plenary, independent and nondeferential reexamination. We hence review de novo the text of the statute that is to be applied here.

III.

A CLAIM FOR COMPENSATION IS GOVERNED BY THE STATUTE IN FORCE AT THE TIME THE ACCIDENT OCCURRED

¶ 6 Claimant contends first that her request for a hearing — filed within three years of the amended claim’s filing, alleging a “new, additional and different accident date,” — satisfies the § 43(B) requirements. Amos’ second argument is that her act of filing the amended claim operates to “toll, arrest, suspend, or waive” the § 43(B) requirements. Amos alternatively urges the COCA opinion, at minimum, should be vacated and the claim returned to the WCC for a hearing on the second alleged injury. Respondent argues simply that claimant has done nothing to arrest the § 43(B) time-lapse provision and the claim is hence unenforceable.

¶ 7 Ordinarily, claims for workers’ compensation awards must either be granted or denied. They stand subject to involuntary dismissal solely for want of an employee’s timely-pressed request for a claim’s hearing. A worker’s quest to receive compensation for an on-the-job injury is a statutory public-law proceeding rather than a private dispute. When resolving a public-law issue, if the aggrieved party’s brief advances the wrong reason for a decision’s vacation the reviewing court is free to grant corrective relief from the urged error on an applicable theory chosen sua sponte — i.e., a theory that supports the assigned error but was neither advanced below nor on appeal but is disposi-tive of the issue raised by the aggrieved party. It is hence not necessary that we address ourselves here to the litigant’s arguments and authorities. The propositions— advanced by both parties and pressed here— are based on a statutory text that was not in force when the accident occurred.

¶ 8 Because neither party here identifies the correct statute that governs the claim under consideration, it is our duty sua sponte to supply the correct statutory norm of law. That governing norm here is the enactment in force at the time of injury— § 43(B) in its 1994 version. In Cole v. Silverado an employer attempted to bind claimant’s rights by a statute that became effective after the claim’s filing. We held that statute uninvocable and the claimant’s rights to be governed by the law in force at the time of the claim’s filing. This was so because the amendment was enacted after the “proceeding was begun” and because it altered the claimant’s substantive rights. Here the very same change that occurred after the claim arose but before the claim’s filing would be binding in this case. We hold that the same result as in Cole must follow here. If we did not pronounce the amended statute uninvocable, the claim would stand subject to substantive law changes enacted after the injury. The right to compensation clearly vests at the time a worker is injured.

¶ 9 Amos’ first alleged job-related accident occurred on 7 August 1997. The statute in force at that time was 85 O.S. Supp.1994 § 43(B). This 1994 enactment gives a claimant five (5) years from the date of a claim’s filing to request a hearing. Amos clearly had five — not three — years from the date of her initial claim’s filing to request a hearing. Because she filed her original claim on 15 June 1998, Amos had until 15 June 2003 to request a hearing. Her motion, filed on 5 April 2002, was well within the temporal limit prescribed by the provisions of 85 O.S. Supp.1994 § 43(B).

IV.

SUMMARY

¶ 10 A compensation claim is controlled by the statute in effect at the time of the alleged job-related accident. Neither party here correctly identified the version of § 43(B) that controls today’s controversy. When resolving a question of public law it is our duty to invoke sua sponte the correct statutory norm dispositive of the issue pressed on review. We conclude that today’s controversy stands governed by the provisions of 85 O.S. Supp.1994 § 43(B).

¶ 11 On certiorari previously granted, the Court of Civil Appeals’ opinion and the Workers’ Compensation Court’s order are vacated. The cause is remanded for further proceedings to be consistent with today’s pronouncement.

¶ 12 ALL JUSTICES CONCUR.

      . Claimant's original paperwork is filed under the name Debbie DeShazo. She has since remarried and uses her new surname.

      . Neither the child nor claimant fell as a result of the incident. Amos neither informed school officials of nor sought immediate medical assistance for her injury but continued her regular teaching responsibilities. Amos testified she called to schedule an immediate appointment with a surgeon, but the earliest available time was approximately two weeks later. (Transcript p. 23) Amos contacted her surgeon because the alleged injury was to her right leg and ankle — the same extremity that three months earlier required surgery for a recreational equestrian accident. At that time a metal plate was surgically inserted into her right ankle.

      .Amos' claim form provides that a “second grade student stepped in front of me snapping my leg.” The form further indicates, "broke leg, broken metal plate.”

      . Amos was conducting school bus evacuation drills when she stepped off a bus and complained of a sharp pain in her right ankle and leg. The principal assisted her to the school nurse's office. Amos testified that her father was notified and took her for examination to the hospital emergency room. (Transcript p. 25) The record does not include the emergency-room report. Subsequent physicians’ reports, offered by claimant, show the metal plate to be refractured. For information concerning origin of the metal plate, see supra note 3.

      . Employee's amended claim was filed by new counsel, identified here by the certiorari paperwork. (See Application and Order for Leave to Withdraw, Record, p. 10 and Entry of Appearance, Record, p. 11.)

      . Employer asserts that claimant's medical problems are the result of a pre-existing injury. We deal here solely with the so-called "limitations issue.”
      Although otherwise properly identified as a motion for hearing, respondent's answer and pre-trial stipulation refer to a “statute of limitations” defense. We take this opportunity again to emphasize that the § 43(B) temporal restriction is not a statute of limitations. The latter operates exclusively on the time to bring an action. The time-anchored restriction we deal with today operates on the period in which a claimant must request a hearing for a timely-filed claim. For an in-depth analysis of the distinction among various time-based restrictions, see Cole v. Silverado. 2003 OK 81, 78 P.3d 542.

      . The record reveals that although neither claimant nor respondent refers to a particular version of what is now 85 O.S.2001 § 43(B), both rest their respective arguments on a three-year period during which a request for a hearing may be considered timely. That period was first introduced to § 43(B) by an amendment effective 1 November 1997. The amendment changed from five to three years the period during which a claimant must request a hearing.

      . The Workers' Compensation Court order refers simply to "85 O.S. § 43(B).” (Record, p. 31)

      . (Record, p. 31)

      . COCA's opinion cites to "85 O.S.2003 § 43(B)" and provides:
      "B. When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within three (3) years from the date of filing thereof or within three (3) years from the date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under the Workers' Compensation Act and shall be dismissed by the Court for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder. * * * " (COCA opinion, p. 4)

      . Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120, 1122-23; Neil Acquisition L.L.C. v. Wingrod Investment Corp., 1996 OK 125, ¶ 5, 932 P.2d 1100, 1103.

      . Workers' Compensation Court order, p. 2. (Record p. 32)

      . COCA identifies claimant's first two arguments as synonymous. (COCA opinion, p. 4.)

      . Amos' request for a hearing was timely filed with respect to the second alleged injury.

      . Royal Min. Co. v. Murray, 1933 OK 653, 30 P.2d 185, 187, 167 Okl. 460 (1933).

      . Beatty v. Scott, 1961 OK 140, ¶ 6, 362 P.2d 699, 701.

      . Special Indemnity Fund v. Reynolds, 1948 OK 14, ¶ 5, 188 P.2d 841, 842; National Gypsum Co. v. Brewster, 1969 OK 185, ¶ 22, 461 P.2d 593, 596; (Reynolds v. Special Indemn. Fund, 1986 OK 64, ¶ 14, 725 P.2d 1265, 1270).

      . Davis v. B.F. Goodrich, 1992 OK 14, ¶ 3, 826 P.2d 587, 592-93 (Opala, J., concurring)(citing Special Indemnity Fund, supra note 18, at ¶ 5, at 842); Reynolds, supra note 18 at ¶ 14, at 1270; Burdick v. Independent School Dist. No. 52 of Oklahoma City, 1985 OK 49, ¶ 8, 702 P.2d 48, 54; McCracken v. City of Lawton, 1982 OK 63, ¶ 9, 648 P.2d 18, 21; Application of Goodwin, 1979 OK 106, ¶ 2, 597 P.2d 762, 764.

      . Reynolds, supra note 18, at ¶ 14 at 1270. Burdick, supra note 19, at ¶ 8 at 54.

      . Cole, supra note 7.

      . Cole, supra note 7, at ¶ 7, at 546; Magnolia Petroleum Co. v. Watkins, 1936 OK 372, ¶ 14, 57 P.2d 622, 623-26. Today’s decision is not to be confused with the rule of law applied in Cole. Cole held that a worker’s timely-filed claim is not subject to retroactive application of after-enacted legislation changing the permissible time for requesting a hearing when the subsequent amendment either changes the substantive rights and obligations of the litigants or impacts "proceedings begun” as regulated by Art. 5 § 54, Okl. Const. A distinction is to be drawn between an employee's statutory right to compensation and the impact of after-enacted legislation on previously-filed claims. The former is governed by the statute in effect on the date of injury. The latter, depending on the grounds given for its inapplicability, may be governed either by the law in force when the claim was filed or the law in effect when the claim arose. Our teaching in Cole is based on both the prohibition against changes after the proceeding was begun and interdiction of changes in the substantive law for claims arisen before the enactment. Here our conclusion is rested solely on the latter proscription.

      .The pertinent terms of 85 O.S. Supp.1994 § 43(B) provide:
      "B. When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within five (5) years from the date of filing thereof or within five (5) years from the date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under the Workers’ Compensation Act and shall be dismissed by the Court for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder. * * * ”
      The relevant terms of § 43(B) were amended effective 1 November 1997, approximately two (2) months after claimant alleges her accidents occurred. The pertinent terms of 85 O.S. Supp. 1997 § 43(B) provide:
      "B. When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within three (3) years from the date of filing thereof or within three (3) years from the date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under the Workers' Compensation Act and shall be dismissed by the Court for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder. * * * "

      . For the terms of 85 O.S. Supp.1994 § 43(B) see supra note 23.

      . For the terms of 85 O.S. Supp.1994 § 43(B) see supra note 23.


source: Caselaw Access Project

author: EDMONDSON, J.

license: Public Domain

text:
    2004 OK 5
    Jennifer K. TEETER, Plaintiff/Appellant, v. CITY OF EDMOND, Oklahoma and the State of Oklahoma ex rel. University of Central Oklahoma Board of Regents, Defendants/Appellees.
    No. 99,158.
    Supreme Court of Oklahoma.
    Feb. 3, 2004.

      Randy P. Conner, Oklahoma City, OK, for PlaintifflAppellant.
    Stephen T. Murdock, Edmond Oklahoma, for Defendant/Appellee City of Edmond.
    Susan K. Noland, Asst. Atty. Gen., Oklahoma City, OK, for Defendant/Appellee State of Oklahoma ex rel. University of Central Oklahoma Board of Regents.

      . The record before the Court shows one other appearance by staff from the Office of the Oklahoma Attorney General, Linda L. Samuel-Jaha, on behalf of the University of Central Oklahoma Board of Regents.

   EDMONDSON, J.

¶ 1 This controversy presents two primary issues. The first is whether summary judgment was properly granted to the City of Edmond on Plaintiffs claim that she was injured because of an improperly maintained crosswalk. The second is whether the University of Central Oklahoma owed Plaintiff a duty to install additional traffic signs to create a different and safer crosswalk on a public street not maintained by the University. We answer the first in the negative. Summary judgment should not have been granted on her claim against the City. We answer the second question also in the negative, and thus affirm summary judgment granted to the University.

¶ 2 Plaintiff (Teeter), a student at the University of Central Oklahoma (UCO), walked across University Boulevard and was struck by a motor vehicle and seriously injured. University Boulevard is a four-lane street maintained by the City of Edmond and which borders UCO.

¶ 3 Both the City of Edmond and UCO moved for summary judgment, contending that each was immune pursuant to the Governmental Tort Claims Act, (GTCA), 51 O.S. 1991 § 151, et seq., as amended. Summary judgment was granted to both Defendants by separate orders filed the same day. Teeter filed two motions for new trial and the District Court denied the motions.

¶ 4 The City of Edmond argued that any alleged failure on its part to install additional lights or traffic markings involved a discretionary decision, and that the City is immune when making such decisions. The City also argued that the cause of Teeter’s injuries was the driver of the motor vehicle that hit her, and not the City. However, the City cited no authority on the causation issue, or made further legal argument.

¶ 5 UCO stated that it had never placed any street signs or traffic control lights on the street, it did not maintain University Boulevard, and that at no time had access pedestrian cross-walks on University Street been blocked or inhibited by construction on UCO campus. UCO then contended that even if there had been construction trucks or any other vehicle illegally parked on the city crosswalk, it would not be responsible, relying upon 51 O.S.Supp.1994 § 155(15) & (18).

¶ 6 Teeter responded to the two motions for summary judgment. She alleged that both the City of Edmond and the University knew that University Boulevard was dangerous to pedestrians. UCO was concerned for the safety of its students, and had requested that the City of Edmond install a four-way stop or signal light on University Boulevard. UCO obtained permission from the City of Edmond to install flashing pedestrian warning signs which the University purchased.

¶ 7 Pedestrian crosswalks had been painted across .University Boulevard. Teeter alleged that the crosswalks needed repainting at the time her injuries occurred. Subsequent to her injuries the crosswalks were repainted, and a four-way stop was installed on University Boulevard. She also alleged that construction being performed by contractors on the University prevented her from using the pedestrian crosswalks. In her deposition she stated that no construction activity was in the crosswalk; but a truck was parked, blocking the crosswalk, and caused her to walk around it in order to cross the street.

¶ 8 Teeter filed motions for new trial, and argued that the question of liability for 'both UCO and the City of Edmond was based upon whether UCO and the City undertook the task of protecting the safety of students by installing and then failing to adequately maintain the crosswalk.

I. The Claim Against the City of Edmond

¶ 9 Governmental immunity of a subdivision of the State is waived only to the extent and in the manner provided in the GTCA. Moran v. City of Del City, 2003 OK 57, ¶ 6, 77 P.3d 588, 590. However, the GTCA also provides certain exemptions from this liability. 51 O.S.Supp.1994 § 155 is one of these. The City of Edmond argued that it was immune because of 51 O.S.Supp.1994 § 155(5) & (15). These' provisions state:

The state or a political subdivision shall not be liable if a loss or claim results from:
5. Performance of or the failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees; ...
15. Absence, condition, location or malfunction of any traffic or road sign, signal or warning device unless the absence, condition, location or malfunction is not corrected by the state or political subdivision responsible within a reasonable time after actual or constructive notice or the removal or destruction of such signs, signals or warning devices by third parties, action of weather elements or as a result of traffic collision except on failure of the state or political subdivision to correct the same within a reasonable time after actual or constructive notice. Nothing herein shall give rise to liability arising from the failure of the state or any political subdivision to initially place any of the above signs, signals or warning devices. The signs, signals and warning devices referred to herein are those used in connection with hazards normally connected with the use of roadways or public ways and do not apply to the duty to warn of special defects such as excavations or roadway obstructions; ...

51 O.S.Supp.1994 § 155(5) & (15).

¶ 10 We discussed § 155(5) in Robinson v. City of Bartlesville Board of Education, 1985 OK 39, 700 P.2d 1013. We first explained that no liability attaches to a discretionary act.

We have previously held that allegations of failure to install and maintain traffic control devices, failure to provide patrol service, and failure to light the streets are allegations of failure to perform discretionary functions. It is clear that if the installation and maintenance of the sunken drain in the school parking lot was a discretionary function of the School' Board, then there can be no liability, and the demurrer was correctly sustained.

Id. 700 P.2d at 1015.

We then quoted from Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d 94 (1970) and explained that liability could flow from ministerial or operational acts.

But there is a distinction to be drawn between acts of a municipal body that are discretionary and acts that are ministerial or operational. In Harrigan v. City of Reno the plaintiff was injured when she was blown by a gust of wind from a city parking lot with a drop-off of several feet with no guardrail. The City, with a comparable tort-claims act, argued that failure to install a guardrail was a matter of discretion, for which the City had immunity. The Court, however, held:
“In determining whether this is a proper case for departure from governmental immunity we must first ask what the act of the city was. The answer is, that it built a parking lot. The city need not have constructed the parking lot because that was an exercise of discretion based upon policy, that is, whether or not the municipality would provide a public parking facility adjacent to its city hall for the convenience of the people. Its decision to do so was a policy, or discretionary, decision. Once having decided to construct a parking lot the city was obligated to use due care to make certain that the parking lot met the standard of reasonable safety for those who would use it. Such was the operational stage for which the statute does not exempt the city from liability if due care has not been used and an injury is caused.”

Robinson v. City of Bartlesville Bd. of Education, 700 P.2d at 1015-1016.

In Walker v. City of Moore, 1992 OK 73, 837 P.2d 876, we said:

Maintaining the existing pavement markings, the purpose of which is to warn that two lanes are merging into one lane, is operational and a ministerial function. Negligence in the performance of that ministerial function subjects the City to liability. That is, the maintenance of the existing pavement markings is not within the discretionary exemption of the Governmental Tort Claims Act.

Walker, 837 P.2d at 879.

¶ 11 Teeter claimed that the City of Edmond failed to adequately maintain the crosswalk. A crosswalk may be created by painted lines on a road surface. Teeter stated that the painted lines on the road surface were worn and insufficient for slowing traffic. This is a claim against the City for not maintaining what it has installed, a failure of performance which is not discretionary but operational. Such a claim is not barred by § 155(5). Robinson v. City of Bartlesville Bd. of Education, supra, Walker v. City of Moore, supra.

¶ 12 Teeter also claimed that the crosswalk was inadequately maintained in that additional traffic signs were necessary for this crosswalk. Teeter does not allege that additional traffic signs are necessary for all crosswalks, but that this particular location, with its volume of traffic and number of pedestrians, needed additional signs to make a crosswalk safe for pedestrians. A claim based upon these allegations is barred by another provision of the GTCA invoked by the City, § 155(15), which states: “Nothing herein shall give rise to liability arising from the failure of the state or any political subdivision to initially place any of the above signs, signals or warning devices.” Teeter does not argue for the exception in § 155(15) relating to signs for “special defects,” so her claim against the City based upon a failure to initially place additional signs must fail.

¶ 13 Teeter also makes an allegation that the City of Edmond failed to warn pedestrians of unsafe conditions created by the City’s alleged negligence. The language in § 155(15) relating to a failure to initially install traffic signs includes “warning devices,” so Teeters’ claim of a failure to provide a warning by not installing either signs or devices would also be barred by § 155(15).

¶ 14 In summary, Teeter’s allegations relating to the City’s failure to initially place additional traffic signs or warning devices related to the crosswalk are insufficient to reverse the trial court’s summary judgment granted to the City. However, the City’s reliance upon the GTCA is not sufficient for summary judgment against Teeter on her allegations that the City failed to maintain the pavement markings and thereby created an unsafe crosswalk that caused her injuries. The summary judgment granted to the City on this claim must be reversed.

II. The Claim Against UCO

¶ 15 Teeter argues on certiorari that UCO knew traffic on University Boulevard was dangerous to the pedestrians, voluntarily assumed the obligation of providing safe access across University Blvd., and failed to meet this obligation. UCO’s motion for summary judgment asserts that it does not maintain the street or the crosswalk. Teeter’s materials in responding to summary judgment note a request from UCO to the City of Edmond for a traffic plan to benefit the pedestrian traffic on University Boulevard, and refer to UCO’s purchase of pedestrian warning lights that the City authorized for University Boulevard. No allegation is made that these warning lights were functioning improperly or were inadequately maintained.

¶ 16 Teeters’ certiorari petition argues that UCO “undertook the task of making it safe to cross University Street by installing flashing lights, ...” A similar allegation was made in response to UCO’s motion for summary judgment. Teeter’s conclusion is that UCO is liable because it assumed the duties, with the consent of the City, of providing a crosswalk and regulating the traffic on University Boulevard.

¶ 17 Part of the police power of the state may, by the Legislature, be delegated to municipalities, boards, commissions, and subordinate state agencies. Gibbons v. Missouri, K. & T.R. Co., 1930 OK 108, 285 P. 1040, 1042. A municipality’s power to regulate traffic on a public street is an exercise of police power delegated from the state. White v. City of Lawton, 1961 OK 287, 373 P.2d 25, 27; Ex parte Shaw, 1916 OK 179, 157 P. 900. Generally, a delegated police power may not be redelegated. State ex rel. Oklahoma Bar Association v. Livshee, 1994 OK 12, n. 13, 870 P.2d 770, 773. For example, the Supreme Court of Vermont said:

In other words, “when authority to exercise the police power within a defined sphere is delegated by the state to a municipal or other public corporation, the authority is inalienable in the corporation, and it cannot in any manner be contracted away or otherwise granted, delegated, diminished, divided, or limited by the corporation.”

Vermont Dept. of Public Service v. Massachusetts Mun. Wholesale Elec. Co., 151 Vt. 73, 558 A.2d 215, 220 (1989), quoting, 6A E. McQuillin, Municipal Corporations § 24.41, at 116-17 (3d ed. rev.1988).

¶ 18 This principle is consistent with our recent opinion in Oklahoma Public Employees Association v. Oklahoma Dept. of Central Services, 2002 OK 71, ¶ 29, 55 P.3d 1072, 1084, where we explained that the statutory responsibility delegated by the Legislature to the Department of Human Services for operating a state institution could not be delegated by that Department to a different entity. See also Bidlingmeyer v. City of Deer Lodge, 128 Mont. 292, 274 P.2d 821, 823 (1954), (police power over roads and streets delegated to a municipal corporation by the state cannot be surrendered, delegated, or divested by contract by that municipal corporation); Victory Cab Co. v. Shaw, 232 N.C. 138, 59 S.E.2d 573, 577 (1950), (a “fundamental rule” is that “a municipal corporation cannot surrender in any part or in any respect the police power delegated to it by the State”).

¶ 19 UCO asked the City to address the problem of pedestrian access across University Boulevard, and not for a delegation of authority to UCO. The warning lights were pm-chased by UCO based upon a letter from the City to UCO that the warning lights could be used. The letter from the City contained no language stating that UCO would thereafter be responsible for regulating traffic on University Boulevard. Further, we note that the City’s immunity argument on summary judgment is based upon the City’s view that it, and not UCO, possesses and exercises police power in the nature of traffic regulation over University Boulevard. Teeter cites no provision of law in support of UCO possessing legal authority to control traffic on University Boulevard.

¶ 20 Teeter also contends that UCO assumed a duty to provide a safe crosswalk independent of the City’s police power. Elements to a claim based upon negligence include (1) a duty to the plaintiff, (2) a violation of that duty, and (3) and injury resulting from that violation. Hesser v. Central National Bank & Trust Company of Enid, 1998 OK 15, ¶ 12, 956 P.2d 864, 867. This Court has previously noted the Restatement (Second) of Torts § 323 (1965), and its standards for attaching liability based upon one who voluntarily assumes a duty. Jackson v. Mercy Health Center, Inc., 1993 OK 155, n. 9, 864 P.2d 839, 842-843. See also, Seavey, Reliance on Gratuitous Promises or Other Conduct, 64 Harv.L.Rev. 913, 928 (1951), (“Where a person represents by word or act that he has done or will do something upon the performance of which he should realize that others will rely, he is liable for expecta-ble harm caused by the reliance of others and his failure of performance, if his representation was negligently or intentionally false, or if without excuse he fails to perform.”).

¶21 Even if we assume that (1) UCO could, as a matter of law, undertake a duty to provide a crosswalk, (2) UCO did in fact assume this duty and (3) UCO failed to perform this duty, Teeter’s allegations relating to how this duty was breached amount to a claim of negligence, subject to the statutory immunity provided by the Governmental Tort Claims Act. Jackson v. Mercy Health Center, Inc., 864 P.2d at 842-844, (we explained that a statutory immunity was a complete defense to a claim for negligence in rendering emergency care in the nature of an assumed duty); Nail v. City of Henryetta, 1996 OK 12, 911 P.2d 914, 917, (the Governmental Tort Claims Act is the exclusive remedy for an injured plaintiff to recover against a governmental entity in tort).

¶ 22 The University of Central Oklahoma is one of the institutions of the State of Oklahoma’s System of Higher Education, and is supervised, managed and controlled by the Board of Regents of Oklahoma Colleges exercising power pursuant to statutes of the State of Oklahoma and Art. 13-B of the Oklahoma Constitution. 70 O.S.Supp.1994 § 3201; 70 O.S.1991 §§ 3501.1, 3510; Okla. Const. Art 13-B. For the purposes of the GTCA, “ ‘State’ means the State of Oklahoma or any office, department, agency, authority, commission, board, institution, hospital, college, university, ... or other instrumentality thereof ...” 51 O.S.Supp.1994 §152(10). UCO is thus an included entity and may invoke application of § 155(15) of the GTCA.

¶ 23 Because § 155(15) provides that no negligence-based liability rises from the failure to initially place road signs or warning devices, Teeter’s claim that the University breached its alleged duty to create a safe crosswalk by failing to place additional signs, lights, or warning devices is barred by § 155(15) of the Governmental Tort Claims Act.

¶ 24 Finally, Teeter alleges that trucks were parked in the crosswalk, that these trucks were those used by contractors working at UCO, and that her injuries were caused by these allegedly wrongful circumstances. UCO defends upon § 155(18) of the GTCA:

The state or a political subdivision shall not be liable if a loss or claim results from:
18. An act or omission of an independent contractor or consultant or his employees, agents, subcontractors or suppliers or of a person other than an employee of the state or political subdivision at the time the act or omission occurred;

Section 155(18) facially protects UCO from liability flowing from the acts of its independent contractors; Teeter has not pointed any authority that would restrict the application of it; and in the circumstances presented by this case it is sufficient to support the summary judgment granted to UCO. We thus conclude that summary judgment was properly granted to UCO.

III. Conclusion

¶25 Summary judgment based upon 51 O.S.Supp.1994 § 155 was improperly granted to the City of Edmond on Teeter’s claim that the City failed to maintain the crosswalk pavement markings and that such failure caused her injuries. This error involves a pure question of law, and is subject to reversal on appeal. Barringer v. Baptist Healthcare of Oklahoma, 2001 OK 29, ¶¶ 5-6, 22 P.3d 695; Barker v. State Ins. Fund, 2001 OK 94, ¶ 7, 40 P.3d 463. Summary judgment was properly granted to UCO based upon § 155(15) & (18). The opinion of the Court of Civil Appeals is vacated, and the summary judgments of the District Court are affirmed in part, reversed in part, and the cause remanded to the District Court for further proceedings consistent with this opinion.

¶ 26 WATT, C.J., OPALA, V.C.J., HODGES, LAVENDER, KAUGER, BOUDREAU, JJ. — Concur.

¶ 27 HARGRAVE, WINCHESTER, JJ.— Concur in part, dissent in part.

      . The Court has said that provisions of the G.T.C.A. applicable in a particular controversy are those in effect when the alleged injuries occurred. Moran v. City of Del City, 2003 OK 57, n. 2, 77 P.3d 588, 590. The alleged injuries occurred in April 1995.

      . 47 O.S.1991 § 1-111:
      § 1-111. Crosswalk
      (a) That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the traversable roadway;
      (b) Any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface.

      . Restatement (Second) of Torts § 323 (1965):
      § 323. Negligent Performance Of Undertaking To Render Services
      One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
      (a) his failure to exercise such care increases the risk of such harm, or
      (b) the harm is suffered because of the other’s reliance upon the undertaking.


author: WINCHESTER, J.: OPALA, V.C.J., HODGES, J., BOUDREAU, J.,

text:
    2004 OK 6
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Robert S. FLANIKEN, Respondent.
    No. SCBD 4722.
    Supreme Court of Oklahoma.
    Feb. 3, 2004.

      Allen J. Welch, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    Michael H. Brady, Ronald A. Schaulat, Brady, Schaulat & Falsetti, Oklahoma City, OK, for the Respondent.
   WINCHESTER, J.:

¶ 1 The Complainant alleges that the Respondent, Robert S. Flaniken charged an unreasonable fee to a client, Peggy Hepler. A hearing was held before the Trial Panel of the Professional Responsibility Tribunal (PRT) on April 24, 2003. In their report of May 21, 2003, the PRT concluded the OBA failed to meet its burden of proof in the matter. We agree.

Background Information

¶ 2 Peggy Hepler was named personal representative and sole beneficiary in the Last Will and Testament of Dewey Lawrence Hughes. When the will was executed, Hughes was blind and infirm and living in a nursing home. Several times in the years preceding his death, he was a client of the Adult Protective Services Division of the Department of Human Services under complaints of exploitation. Hughes died unmarried, without any surviving children or grandchildren. His heirs at law were nieces and nephews residing in other states. Following his death, one nephew and the nephew’s mother expressed concern about the propriety of the will, Hughes’ competence and Hepler’s inheritance. Hepler was not a relative of Hughes. She met him at the bank where she was employed and he was a customer.

¶ 3 The attorney who drafted Hughes’ will was convinced through his observations that Hughes was competent. Hepler met with the Respondent concerning legal representation in the probate. Hepler rejected Respondent’s proposal- of an hourly rate fee with a retainer. The circumstances of Hughes’ will and Hepler’s inheritance were unique and peculiar and Respondent reasonably believed a will contest was inevitable and imminent. Shortly following the initial discussions and the rejection by Hepler of Respondent’s proffered retainer and hourly fee, Respondent and Hepler entered into a contingency fee agreement. The parties stipulate that the Respondent’s representations in entering into the fee agreement did not involve any fraud, misrepresentation or concealment.

¶4 After Hepler agreed to the fee, Respondent filed the will probate case, handled the necessary matters including negotiations with creditors and concluded the estate administration and distribution. The will was not contested. With the final estate accounting and distribution order, Respondent and Hepler sought and received court approval for separate fees for Respondent’s services to the Personal Representative.

¶ 5 After the order was entered to distribute the remaining liquid assets to Hepler, Respondent received the amount of his one-third contingency fee agreement. After subtracting the court-awarded fee from estate assets, Hepler paid the Respondent $108,199.85. The total value of the real and personal property she inherited was $451,413.54. The Respondent maintains an attorney lien claim against the unliquidated real property.

¶ 6 The trial panel concluded that the Respondent’s conduct did not merit discipline, and made such a recommendation to this Court. The trial panel’s recommendations are entitled to great weight, but are merely advisory in nature. In attorney disciplinary matters, this Court does not sit in review of the panel’s recommendations, but instead exercises original jurisdiction. Matter of Page, 1993 OK 165, ¶ 3, 866 P.2d 1207, 1209.

Tests for Reasonableness of Fees

¶ 7 In their Joint Stipulated Case Presentation, the parties agree to two tests for judging the reasonableness of fees. The first test involves the fee setting stage when the attorney and client initially agree to a fee arrangement. If during this fee setting stage, the contingency fee agreement was based on fraud, mistake, undue influence, or suppression of facts, or is contrary to public policy, then the attorney has secured an unwarranted premium for a risk that did not realistically exist. This test is apparently taken from a footnote in Oklahoma Turnpike Authority v. New Life Pentecostal Church of Jenks, 1994 OK 9, ¶ 13, n. 17, 870 P.2d 762, 766, n. 17. The second test is based on outcome analysis. This test is codified in 5 O.S.2001, § 7, and limits an attorney in a contract for a percentage of a client’s cause of action or claim to no more than 50 percent of the client’s net recovery, whether by judgment or compromise.

¶ 8 Although the Bar agrees that the contingency fee passes these two tests, it nevertheless asserts the fee was both excessive and unreasonable, and therefore a violation of Rule 1.5(a), ORPC. The OBA submits that “reasonableness” is a legal concept always subject to judicial scrutiny and evaluated on a case-by-case basis. The Bar offers that fee reasonableness can be determined by a third test: upon reflection. This means that a fee should also be judged in hindsight as to whether it is reasonable in accordance with the eight factors listed in Rule 1.5(a). The OBA interprets the factors set out in Rule 1.5(a) in light of the outcome and conclusion that no formal will contest materialized. The Bar concludes that the Respondent cannot justify his fee in accordance with the reasonable standards set out above, regardless of the level of risk he undertook at the time of contracting. But the Respondent argues that this position misinterprets the application of Rule 1.5(a) by creating an additional test not found or articulated in Oklahoma law. He notes that factor 8 in Rule 1.5(a) addresses whether the fee is fixed or contingent — a clear indication that contingency fees cannot be weighed upon factors of time, novelty or expertise.

Attorney Discipline for an Unreasonable Fee

¶ 9 We must observe that we are not deciding a fee dispute. We express no opinion concerning how a district court should resolve a dispute between a client and attorney over the fee contract. Before us is an attorney discipline matter. The Rules Governing Disciplinary Proceedings require that charges be established by clear and convincing evidence. 5 O.S.2001, ch. 1, app. 1-A, Rule 6.12(c), State ex rel. Oklahoma Bar Ass’n v. Eakin, 1995 OK 106, ¶ 16, 914 P.2d 644, 650. The burden of proof in a contract dispute is preponderance of the evidence. Tibbets & Pleasant v. Martin, 1925 OK 142, ¶ 5, 233 P. 698, 699.

¶ 10 Contingent fee contracts have a long history of acceptance in this country. Such contracts may be the only way some litigants can secure legal services. But the right to contract for a contingent fee has never been thought to be unrestrained. Abel v. Tisdale, 1980 OK 161, ¶ 16, 619 P.2d 608, 611. For example, this Court has held that the trial court may consider factors other than the provisions of a contingent fee contract when it is executed by a parent on behalf of a minor. Sneed v. Sneed, 1984 OK 22, 681 P.2d 754.

¶ 11 The eight factors listed in Rule 1.5(a), are analogous to the factors listed in State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659, where courts were instructed on the method for awarding attorney fees at the conclusion of a case and against an opponent. That case involved setting criteria for a reasonable attorney’s fee in the absence of a contract or statute fixing the amount. Oliver’s Sports Center, Inc. v. National Standard Ins. Co., 1980 OK 120, ¶ 7, 615 P.2d 291, 294. The Oliver’s Sports Center case also involved setting a fee against an opponent. Those cases are not particularly helpful in deciding the reasonableness of a fee contract voluntarily entered into between an attorney and client.

¶ 12 In considering the facts before this Court in this bar matter, we hold that the Complainant has failed to meet its burden of proving by clear and convincing evidence that the Respondent has charged an unreasonable fee pursuant to Rule 1.5(a). The Respondent gave the client a choice between an hourly fee and a contingent fee. No evidence has been presented that shows impropriety involved in the execution of the contract between the Respondent and He-pler. The evidence shows that when the probate took less time and did not involve the anticipated will contest, the client became dissatisfied with the bargain she had made. Whether she has legal grounds to amend the contract in a civil action is not before this Court. We reject the proposed “hindsight” test of the Bar Association where a lawyer has lawfully contracted for a percentage of a client’s recovery, and reject the Complainant’s recommendation of discipline for the Respondent.

COMPLAINT DISMISSED ON THE MERITS.

CONCUR: WATT, C.J., OPALA, V.C.J., LAVENDER, HARGRAVE, WINCHESTER, EDMONDSON, JJ.

CONCURS IN PART; DISSENTS IN PART: HODGES, J.

DISSENT: KAUGER (joins BOUDREAU, J.), BOUDREAU, JJ.

OPALA, V.C.J.,

concurring.

¶ 1 I concur in the court’s pronouncement but write separately to emphasize a line of demarcation between those lawyer-fee disputes that may constitute a breach of professional discipline and those that present no more than a civil contest. Although the Oklahoma Rules of Professional Conduct are designed to generate fairness in lawyer/client relations, a fee dispute is not a ground for imposition of professional discipline absent some proof of at least one element of culpability associated with the fee’s exaction. Recognized elements of disciplinary taint include: a facially egregious or unreasonable amount, the fee’s extortionate origin, deceit, illegality, concealment, uncon-seionability and fraud. The provisions of Rule 1.5(a)(l — 8), Rules of Professional Conduct, create an elastic standard (with a non-exhaustive list of factors) for assessing the reasonableness of a fee amount.

¶ 2 The contingency fee agreement here in contest, which was entered into upon Mrs. Hepler’s informed acquiescence, does not without more present a ground for the Bar’s assertion of disciplinary cognizance. At the moment of its formation the agreement was neither invalid nor facially tainted by some element of ethical infirmity. Moreover, the Bar’s evidence is utterly devoid of proof showing illegality, deceit, concealment, extortion or fraud practiced to induce the client’s entry into an unconscionable obligation. In short, the client’s sole avenue of legal relief is afforded her by the civil litigation process.

HODGES, J.,

concurring in part; dissenting in part.

¶ 1 I concur in the refusal to impose discipline on this lawyer. I must dissent, however, to this Court’s failure to articulate a coherent rule to guide lawyers concerning contingent fees in probate matters. As both the majority and the dissenting opinions make some excellent points which are not mutually exclusive, I believe that there is middle ground on which to rest the disposition of this matter.

¶ 2 The problem with a contingency fee in this probate proceeding is that there are two things going on. First, the lawyer is to perform tasks for the personal representative. Second, the lawyer may have to defend the will on behalf of the personal representative. The contingency contract in this matter treated both things as one. The rule should be, as the dissent advocates, that the contingency fee agreement may apply only to the contingency of a will contest, not to the probate itself.

¶ 3 I would, however, give this lawyer the benefit of the doubt as to this contract. Southard v. MacDonald, 360 P.2d 940, 944 (Okla.1961), unequivocally rejected the notion that a contingent fee contract was void because it involved a probate proceeding. That action, however, involved the representation of an heir who challenged a will in probate. Thus, I would apply the rule articulated in the dissent prospectively to future Bar disciplinary proceedings in which a lawyer attempts to collect a contingency fee for efforts in merely performing tasks for the personal representative.

BOUDREAU, J.,

with whom KAUGER, J., joins, dissenting.

¶ 1 Respondent structured the contingency fee agreement with his client in a manner that allowed respondent to recover a large fee in connection with an inheritance which passed by law and without a will contest. In my view, the agreement, which allowed respondent to recover a contingency fee in a probate proceeding absent an actual challenge to the will, violated Rule 1.5(a) of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, Ch. 1, App. 3-A, which mandates that a lawyer’s fee be reasonable. The fee agreement was unreasonable on its face because it allowed respondent to collect a large fee for efforts not related to the defense of his client’s testate share of the estate’s assets but rather for routine probate services.

¶ 2 Peggy Hepler employed respondent to represent her as both the personal representative of the estate of Dewey Lawrence Hughes and as the beneficiary of that estate. Respondent and Hepler initially believed a will contest was probable. Respondent and Hepler entered into a contingency fee agreement in which Hepler agreed to pay respondent one third of the gross estate “upon the finalization of the probate of the will”. The agreement also provided that Hepler would pay respondent forty percent of the gross estate in the event of a challenge to her testate share of the estate’s assets. No challenge materialized and Hepler received her inheritance, without incident, under the will. Hepler paid Respondent $108,199.85, a third of the value of the liquid assets she inherited and respondent currently maintains an attorney lien claim against the unliquidated real property inherited by Hepler. If respondent is successful in maintaining his attorney lien claim to the real property, he will receive approximately $150,000 for his services to Hepler.

¶ 3 It is clear that contingency fee contracts may be utilized in probate proceedings. See Southard v. MacDonald, 1961 OK 72, 360 P.2d 940, 944 (while the statute appears to limit contingency fees to two types of cases, those arising ex contractu and ex delicto, the court refused to find such a contract void because it involved a probate proceeding). Nevertheless, contracts for contingent fees, generally having a greater potential for overreaching of clients than hourly fees, must be closely scrutinized by the court in furtherance of its duty to safeguard the interests of the public and maintain the integrity of the legal profession. See Committee on Legal Ethics v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107, 114 (1986). Our duty to scrutinize contingency fee contracts applies to their use in probate cases.

¶ 4 An analysis of a contingency fee agreement between an attorney and his client must begin with the general rule that an attorney’s fee be reasonable. Rule 1.5(a), ORPC. It has been long established that contingency fee agreements are subject to this reasonableness standard. Amotmt of Fee, ABA/BNA Lawyers’ Manual on Professional Conduct, 41:901 (1994 Supp.).

¶ 5 A contingent fee is to be collected only if an attorney successfully champions the legal rights and claims of his client, with the result that the client is compensated through a settlement with, or judgment against, those who denied his claims. In re Gerard, 132 Ill.2d 507, 139 Ill.Dec. 495, 548 N.E.2d 1051, 1056 (1989). See also Pocius v. Halvorsen, 30 Ill.2d 73, 195 N.E.2d 137, 139 (1963)(an attorney’s collection of a contingent fee depends upon the success or failure to enforce a supposed right). In this case, respondent did not successfully champion or enforce the legal rights of his client. It is undisputed that Hepler, as the beneficiary under the will, was entitled to the inheritance by operation of law. Respondent contributed nothing to establish or augment Hepler’s recovery. His efforts, if any, were unrelated to the decision of the relatives not to contest the will. He sat back, waited and “stressed over an expected claim”, hoping that the will contest would never arise.

¶ 6 This contingency fee agreement which allowed respondent to recover in excess of a $150,000 for routine probate services, which the court valued at $13,000, is not a reasonable one. It is not unreasonable simply because it allowed respondent to receive a lot of money for a little work. The mere fact that a case involved less difficulty in work than was believed necessary at the outset will not render the fee unreasonable or unfair. See Fletcher v. Fletcher, 227 Ill.App.3d 194, 169 Ill.Dec. 211, 591 N.E.2d 91, 95 (1992). It is unreasonable because respondent’s one third percentage was not conditioned upon an actual challenge to the will and accordingly allowed respondent to collect a large fee for efforts not related to the defense of his client’s testate share of the estate’s assets but rather for routine probate services.

¶ 7 In my view, respondent certainly could have structured the contingency fee agreement to comply with Rule 1.5(a)’s requirement of reasonableness. The agreement simply needed to provide that his client was obligated to pay him the percentage fee in the event he successfully defended an actual challenge to the will pressed by one of the hems at law. The agreement should have stated that if the client was merely provided with her already vested testate share of the assets without a challenge, the client should have been obligated to pay an hourly rate. By setting an actual challenge to the will as a condition precedent to the effectiveness of the contingency fee agreement, respondent would have eliminated the possibility that he would recover a substantial fee without doing anything to establish or augment his client’s recovery.

¶ 8 In summary, when a client retains an attorney to both represent the client as personal representative and to protect the client’s testate or intestate share of the estate’s assets, a contingency fee agreement should be allowed only when there is an actual challenge to the client’s share of the estate’s assets. Without a challenge, the attorney’s services amount to nothing more than representing the client in the administration of the estate. In my view, a contingency fee agreement, such as this one, which allows an attorney to recover a substantial share of the estate’s assets without an actual challenge violates Rule 1.5(a) on its face. By sanctioning such an agreement, this Court invites attorneys to enter into contingency fee agreements which allow them the possibility of recovering a significant portion of their client’s estate assets without providing the client with services that establish or augment their recovery.

¶ 9 I am also of the view that it could have been determined that the contingency fee agreement was unreasonable based on the circumstances of the case at the time the contract was made. Accordingly, I would a) administer a public reprimand to respondent, b) order that he pay the costs of this proceeding not later than 30 days after this Court’s opinion becomes final, c) order respondent to make restitution to Peggy He-pler of all amounts he received beyond the probate court ordered attorney fees within 30 days of this Court’s opinion becoming final, and d) order respondent to release his attorney’s lien on Peggy Hepler’s real property within 30 days of this Court’s opinion becoming final.

      . "(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
      “(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
      "(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
      "(3) the fee customarily charged in the locality for similar legal services;
      "(4) the amount involved and the results obtained;
      "(5) the time limitations imposed by the client or by the circumstances;
      “(6) the nature and length of the professional relationship with the client;
      "(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
      "(8) whether the fee is fixed or contingent.”

      . The burden of proving a proposition by clear and convincing evidence is expressed in the Oklahoma Uniform Jury Instructions, Instruction No. 3.2, as "highly probable and free from serious doubt."

      . Preponderance of the evidence is expressed in the Oklahoma Uniform Jury Instructions, Instruction No. 3.1, as "greater weight of the evidence.” Henderson v. State, 1977 OK CR 238, ¶ 4, 568 P.2d 297, 298.

      . Rules of Prof'l Conduct, Rule 1 et seq., 5 O.S. 2001, Ch. 1, App. 3-A.

      . The Florida Bar v. Moriber, 314 So.2d 145, 148 (Fla.1975); In matter of Greer, 61 Wash.2d 741, 380 P.2d 482, 486 (1963); See also Restatement (Third) of the Law Governing Lawyers § 34 cmt. f, p. 252 (2000) (the principle is often phrased as "overreach[ing] by deceiving the client”).

      . 5 O.S.2001, Ch. 1, App. 3-A.

      . Restatement (Third) of the Law Governing Lawyers § 34 cmt. c, p. 249 (2000) (other factors include the client's sophistication, the disclosures made to the client, the client’s ability to pay etc.); See also Gabriel J. Chin & Scott C. Wells, Can a Reasonable Doubt Have an Unreasonable Pnce? Limitations on Attorneys' Fees in Criminal Cases, 41 B.C. L.Rev. 1, 4-5 (1999).

      .A contingency fee agreement for services in a probate case is facially valid. See Southard v. MacDonald, 360 P.2d 940, 944 (Okla.1961).

      . In his brief respondent stated that his services to Hepler consisted of accumulating evidence, researching legal issues, preparing a plan, and thinking and stressing over expected claims. He makes no assertion that there was a causal connection between these efforts and the decision of the relatives not to contest the will.

      . While respondent offered to handle both the administration of the estate and a potential challenge to her testate share of the estate on an hourly basis, Hepler declined. In my view, respondent's fiduciary duty obligated him to offer his client the option of an hourly contract if there was no actual challenge to the probate of the will and a contingency fee contract if a challenge materialized. I am also convinced that he was obligated to inform her that this fee arrangement was in her financial interest. The attorney-client relationship is one of highest trust and confidence and requires that the attorney's dealings with the client be characterized by the utmost candor and fairness. State ex rel. Oklahoma Bar Association v. Hatcher, 1969 OK 42, 452 P.2d 150, 153.

      . The parties have stipulated that you could not tell the contingency fee contract was unreasonable at the time of contracting. However, "[w]henever this Court is called upon to function in its constitutional capacity as the stale's exclusive licensing authority for legal practitioners, its decisions are made de novo. All facts responsive to the issues formed before the panel must be independently redetermined.” State ex rel. Oklahoma Bar Association v. Cantrell, 1987 OK 17, 734 P.2d 1292, 1292 (Okla.1987). See also State ex rel. Oklahoma Bar Association v. Miskovsky, 1997 OK 55, 938 P.2d 744, 747.


author: WINCHESTER, J.

text:
    2004 OK 10
    Max SMITH, d/b/a Smith Oil, Appellant, v. MARSHALL OIL CORPORATION, Appellee.
    No. 96,987.
    Supreme Court of Oklahoma.
    Feb. 10, 2004.

      Jack Mattingly, Sr., Jack Mattingly, Jr., Gary P. Snow, Mattingly, Snow & Mattingly, P.C., Seminole, OK, for Appellant.
    James W. George, L. Mark Walker, Crowe & Dunlevy, A Professional Corporation, Oklahoma City, OK, for Appellee.

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

   WINCHESTER, J.

¶ 1 The dispositive issues on certiorari are whether the subject leases terminated under the terms of their habendum clauses, and whether ownership of certain equipment left on the leased premises by appellant, Max Smith, d/b/a Smith Oil, vested in the surface owner. We answer these questions in the affirmative.

FACTS AND PROCEDURAL HISTORY

¶ 2 The operator, Max Smith d/b/a Smith Oil, acquired oil and gas leases for properties located in Seminole County, Oklahoma. The relevant leases provide for a one-year primary term. It is undisputed that Smith obtained production from the Stacy and Paige wells during the primary term and that the leases were held by production into their secondary terms. The leases contain habendum clauses that provide for secondary terms “as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.” An addendum to the lease dated November 30, 1987, to-wit: Paragraph 7 of Exhibit “A” to said lease between J.W. Scott and Alyce Scott, lessors, and Max Smith d/b/a Smith Oil, lessee, provides the following:

“7. In the event of cessation of production on said loud [land], Lessee agrees to remove all salvageable structures he then owns within six (6) months of cessation date, weather permitting. Failure of Lessee to do so shall vest ownership of said equipment to the surface owner.”

¶ 3 The trial court rendered judgment against Smith in a quiet title action brought against Marshall Oil Corporation, appellee herein and a successor in interest to Smith. The trial court held that the oil and gas leases expired under the terms of their ha-bendum clauses, and thus were no longer in force. The trial court also held that ownership of the structures and equipment Smith placed on the leased premises vested in the surface owner under ¶ 7 of the Exhibit “A” addendum quoted hereinabove. The Court of Civil Appeals, Division I, in an opinion released for publication, affirmed the judgment of the trial court. We granted certiora-ri.

¶4 Appellant Smith acquired a working interest in the oil and gas leasehold estate known as the Stacy-Paige lease pursuant to the above-mentioned leases covering the south half of the northeast quarter of section 22, township 10 north, range 7 east, in Seminole County, Oklahoma. Smith acquired the prior leasehold estate by sheriffs deed dated November 17, 1988, and filed December 9, 1993. It is undisputed that Smith obtained production on Stacy-Paige lease during the primary term. It also is undisputed that this production continued in commercial quantities for several years into the secondary term. However, the parties disagree as to whether or not the subject wells were at all times capable of producing' in paying quantities during the secondary term. Indeed, this was a factual issue before the trial court.

¶ 5 Marshall Oil’s predecessors, West Consulting Company, Inc. and Energy Lease Brokers, Inc., purchased new oil and gas leases that covered the same properties as Smith’s old leases on October 26, 1998, January 21, 1999, and April 8, 1999. They entered the premises and took possession of the Stacy and Paige wells. In February 2000, they top-leased the properties to Marshall Oil. Marshall Oil is successor in title to the rights in the top leases, pursuant to an Assignment dated February 10, 2000, but with the effective date of November 1, 1999. No party argues that the top leases grant a reversionary interest independent of the adjudication of the base leases.

¶ 6 It is undisputed that the mineral owner lessor never made a verbal or written demand on Smith to comply with the implied covenant to market oil or gas from the wells, and did not give Smith reasonable time to comply with any such demand. It also is undisputed that the mineral owner lessor never brought an action to declare a forfeiture of the lease. Smith contends that the instant action arises from a claim of breach of the implied duty to market oil and gas. As such, he reasons that a demand must be made, and time granted with which to comply, prior to commencement of an action against him. Marshall Oil argues that the quiet title action before us is premised upon the theory that the Stacy-Paige lease expired under the terms contained in the ha-bendum clause, and as such, no demand or time with which to comply, was necessary to prevent a forfeiture of Smith’s estate in the leasehold.

¶ 7 This action to quiet title was tried on August 2, 2001. Marshall Oil moved for a directed verdict that the trial court granted, finding Smith’s oil and gas leases expired by their own terms. The trial court denied Smith’s Motion for New Trial and he appealed. The Court of Civil Appeals, Division I, affirmed the decision of the trial court in an opinion released for publication. On certio-rari granted upon Smith’s petition, we now vacate the Court of Civil Appeals’ opinion, and sustain the judgment of the trial court, for the reasons set forth hereinbelow.

STANDARD OF REVIEW

¶ 8 The instant matter is an action to cancel an oil and gas lease. As such, it is one of equitable cognizance. Hininger v. Kaiser, 1987 OK 26, 738 P.2d 137. The trial court’s decision will not be reversed unless we find that it is clearly against the weight of the evidence. Hamilton v. Amwar Petroleum Co., 1989 OK 15, 769 P.2d 146.

IMPACT OF LANGUAGE IN HABENDUM CLAUSE

¶ 9 In the state of Oklahoma, when the term “produced” is used in a “thereafter” provision of an habendum clause, its meaning is that of “production in paying quantities.” Stewart v. Amerada Hess Corp., 1979 OK 145, ¶ 5, 604 P.2d 854, 857; Barby v. Singer, 1982 OK 49, ¶ 4, 648 P.2d 14, 16; Pack v. Santa Fe Minerals, 1994 OK 23, ¶ 8, 869 P.2d 323, 326. “Production in paying quantities” is a term defined by Oklahoma case law to mean “production of quantities of oil and gas sufficient to yield a profit to the lessee over operating expenses, even though the drilling costs or equipping costs are never recovered, and even if the undertaking as a whole may result in a loss to the lessee.” Hininger v. Kaiser, 1987 OK 26, ¶ 6, 738 P.2d 137, 140. The phrase denotes a return in excess of “lifting expenses,” costs associated with lifting the oil from the ground after the well has been drilled. Stewart v. Amerada Hess Corp., 1979 OK 145, ¶ 6, 604 P.2d 854, 857. The record in this case establishes that during the secondary term of the Stacy-Paige lease, the subject wells ceased production at some times, while at other times, they produced, but not in paying quantities.

¶ 10 Smith, in his reply brief, contends that Danne v. Texaco Exploration and Production, Inc., 1994 OK CIV APP 138, 883 P.2d 210, (holding Texaco forfeited its lease for breach of the implied covenant to market, during its secondary term,) controls the instant matter and should result in an opinion in his favor. We disagree. Danne is distinguishable on its facts as well as one of its legal theories — a claim that the lessee breached the implied covenant to market the product with due diligence. The instant matter is not a claim for breach of the implied covenant to market the product. It is a claim to quiet title under the theory that Smith’s leases expired under their own terms, contained in the habendum clause. If the evidence herein demonstrates that the subject wells were not producing in paying quantities and that Smith failed to present compelling equitable considerations to justify this failure to produce in paying quantities, then a decree of lease cancellation may be rendered. See, e.g., Pack v. Santa Fe Minerals, 1994 OK 23, ¶ 9, 869 P.2d 323, 326-327, quoting Stewart v. Amerada Hess Corp., 1979 OK 145, ¶ 12, 604 P.2d 854, 858.

EQUITABLE CONSIDERATIONS

¶ 11 We first conclude that the period employed by the trial court in the instant case, to measure the Stacy and Paige wells’ profitability, was sufficient under all the facts and circumstances for a fair and reasonable determination. Since the Stacy and Paige wells commenced in the primary terms of the subject leases, the question then becomes whether the period of cessation of production and of failure to produce in paying quantities is reasonable, as well as the question of Smith’s diligence, as operator. Voluntariness of the cessation is another factor to consider. Hunter v. Clarkson, 1967 OK 114, ¶ 9, 428 P.2d 210, 212; Kerr v. Hillenberg, 1962 OK 160, ¶ 14, 373 P.2d 66, 69. The cessation of production herein was not due to mechanical difficulties, nor was it involuntary. By Smith’s own testimony, he turned the wells on when he wanted to, and turned them off when he wanted to.

¶ 12 In determining whether a failure to produce in paying quantities suffices to terminate a lease, we examine the facts and circumstances of the cessation on a case-by-case basis. Barby v. Singer, 1982 OK 49, ¶ 6, 648 P.2d 14, 16-17; Stewart v. Amerada Hess Corp., 1979 OK 145, ¶ 10, 604 P.2d 854, 858. Indeed, we have held that “compelling equitable considerations” may save a lease from termination even with unprofitable well operations. Barby, ¶ 7, 648 P.2d at 17 (prospect of impending federal legislation, The Natural Gas Policy Act, that might result in an increase in the price of natural gas was equitable consideration); State ex rel. Commissioners of the Land Office v. Carter Oil Co. of West Virginia, 1958 OK 289, ¶¶ 43-44, 54, 336 P.2d 1086, 1095-96 (an implied covenant case in which the fact that lessees were unable to market product due to absence of pipeline in which to transport product was equitable consideration); Cotner v. Warren, 1958 OK 208, ¶¶ 8-9, 330 P.2d 217 (an implied covenant ease wherein we held that five to six months of voluntary cessation of marketing where operator was attempting to resolve partnership differences during the time period was equitable consideration); Hunter v. Clarkson, 1967 OK 114, ¶ 10, 428 P.2d 210, 213 (an implied covenant case in which we held that a five month cessation of production and marketing without any circumstances to justify cessation was not equitable consideration and resulted in lease cancellation).

¶ 13 Smith relies heavily on our decision in Pack v. Santa Fe Minerals, 1994 OK 23, 869 P.2d 323. However, in the Pack case, the parties stipulated that the subject wells were at all times capable of producing in paying quantities. In the case at bar, Marshall Oil contends that the Stacy and Paige wells were not capable of producing in paying quantities in the condition they were in at the time immediately prior to the time Marshall Oil took possession and re-worked the wells. In the absence of compelling equitable considerations to justify Smith’s failure to produce in paying quantities, the leases will terminate under the terms of the habendum clauses. The trial court concluded that a dearth of equitable considerations existed in the instant matter. On review, we must consider whether the trial court’s conclusion is clearly against the weight of the evidence.

¶ 14 The evidence produced at trial establishes that the two leases in question failed to yield a return in excess of lifting expenses during years 1996 through 1998. The evidence at trial supports a finding that the gross value of such production was approximately $12,383.27. Evidence established Smith’s lifting costs for this period were in excess of $52,355.00. These lifting costs include saltwater disposal payments to landowner Scott, annual electric costs, gross production taxes ; royalty payments to royalty owners and depreciation. The leases took in revenue of approximately $9,495.77.

¶ 15 Smith testified at trial regarding this time period as follows: “I produced them when I felt like producing them. And I turned them off when I felt like turning them off.” This conduct is unacceptable for an operator in the state of Oklahoma, where the landowner is protected when an operator ceases production for an unreasonable time without cause, after the primary term expires. We stated in Hunter v. Clarkson, 1967 OK 114, ¶ 10, 428 P.2d 210, 213, that:

“[t]he operator cannot ... only produce oil when it suits his purposes. The landowner has an interest which must, and will, be protected when the operator ceases production for an unreasonable time, without cause, after the expiration of the primary term.”

The facts in Hunter were disputed, but ultimately they revealed a voluntary cessation of production without any circumstances to justify a continuation of the lease.

¶ 16 The record supports the trial court’s determination that while Smith produced these leases in their secondary terms, the production was not profitable for three years. At this juncture, all production ceased. No further production occurred until April 1999, when Marshall Oil’s predecessor commenced operations under the new leases. Smith quit using electricity in January 1998. His production records reflect that he terminated production at this time. Smith offered no compelling equitable concerns to justify this. Instead, Smith testified he deliberately ceased production, hoping oil and gas prices would rise. However, he had no factual support for this, and testified it was his mere “hope.”

¶ 17 Smith also testified he did not want to produce the wells when prices of oil dropped to $8.00 a ban-el, and that he decided to wait until they rose to $30.00 a barrel. However, the evidence presented shows that he sold oil for $16.25 per barrel on January 27, 1996, $22.50 a barrel on January 28, 1997, and $18.50 per barrel on February 28,1997. Fluctuating market prices do not rise to the level of an equitable consideration, or an excuse for Smith’s failure to produce in paying quantities. While Smith contends that a gas purchase statement was addressed to him from Enerfin Resources One, L.P. for gas production dated February 2000, this gas was produced by Marshall Oil’s predecessor, not Smith. Marshall Oil’s predecessor changed billing for the gas meters in January 1999, according to the evidence presented at trial. This was well over a year before this gas statement, making it a physical impossibility that Smith produced gas in February of 2000. Smith admitted this at trial.

¶ 18 The evidence supports the trial court’s finding that no extenuating circumstances occurred that would justify Smith’s failure to produce in paying quantities for these years, and that the leases expired by the terms of their own habendum clauses. Smith continues to argue that they were at all times capable of producing in paying quantities, thus satisfying the habendum clauses of the leases. The trier of fact found to the contrary, based upon the evidence presented at the trial of this matter and upon appellate review, we cannot say that this finding was contrary to the clear weight of the evidence. Smith failed to produce any evidence to support his assertion that the wells were at all times capable of producing in paying quantities, other than his personal belief to that effect. The record establishes that Smith’s lifting expenses, which by his own admission understate his actual costs due to insufficient record-keeping, far exceed any return, when the wells actually were producing. Evidence as to how this scenario could change vis-á-vis a scenario in which the wells might be merely “capable of producing” was never presented by Smith. As stated hereinabove, Smith’s argument as to a breach of an implied duty to market is inapplicable to the instant facts. None of the cases cited by Smith involve the evidence in this case. He cannot, under the terms of his leases, only produce oil and/or gas when it suits his purposes. The lessors have an interest that must be protected when Smith, as operator, ceases production for an unreasonable time, without cause or justifiable equitable considerations, after the primary terms of the leases have expired.

¶ 19 The remaining issue before us concerns the addendum to the November 30, 1987, lease, to-wit: whether ownership of certain equipment left on the premises vested in the surface owner because Smith failed to remove it. The record indicates that Smith was primarily concerned with possession of the Stacy-Paige lease, as opposed to any specific equipment left on the premises. Plaintiffs/Appellant’s trial Exhibit 16 purports to be at least a partial list of Smith’s salvageable structures and equipment, along with the values associated with each item left on the premises, the ownership of which Marshall Oil contends vested in the surface owner. Smith apparently did not maintain an equipment inventory for this lease. The handwritten list does not contain a total value. If we accept the values assigned by Smith to the equipment he listed, the value is $70,202.00. We note that Smith wrote this list on the back of an Oklahoma Corporation Commission division order for intex-ests in Hughes County, Oklahoma. In any event, it would appear that if he were concerned with ownership of his equipment vesting in the sui-face owner, he would have maintained an equipment inventory complete with values of equipment that could be substantiated with purchase and depreciation documentation. No such evidence is contained in the record before us.

¶20 Ovex-all, Smith’s testimony reflects a lack of concern as to equipment ownership vesting in the surface owner. He testified that he did not remember whether the pi-ovision in the November 30,1987, lease regarding ownership of equipment vesting in the surface owner, was his idea or the lessors. He further testified it was agreed that if there were a cessation of production, he had six months to recover his equipment. There was no confusion as to this provision, or its application in the event of a cessation of production. The only dispute was as to whether a cessation of production actually occurred. Smith testified he did not agree that there was a fifteen month cessation of production, stating: “Because I had proved I had produced the wells up to December of '98.” The record supports a finding that Smith did not argue the provision providing equipment ownership would vest in the surface owner, if not removed within six months, was inapplicable. He merely argued that a cessation of production had not occurred. As such, our determination the Stacy-Paige lease ceased to produce in paying quantities indisputably triggered the six-month period for Smith to remove his equipment. His failure do so during the first calendar year of failure to produce in paying quantities, and the fact he left his equipment on the leased premises through calendar year 1999, when his successors in interest took over, supports a finding that ownership thereof vested in the surface owner, under this express lease provision.

¶ 21 Smith testified he did not realize the leases had changed hands until a potential buyer called him and said that there were “some people out there using your equipment and trying to produce your well.” Smith testified he “didn’t do anything,” even with this knowledge. Instead of attempting to repossess his equipment, Smith did nothing. He sent an electric bill payment to Canadian Valley Electric, and received a phone call from them informing him the leases had been changed over to West Consultant. The record establishes that this occurred in January, 1999. It is difficult to comprehend how Smith could have been diligently reworking the subject wells or diligently attempting to produce them, while remaining completely unaware that another entity had entered the premises, had reworked or was in the process of reworking the wells and had changed over the electric billings.

¶ 22 The record reveals that Marshall Oil was prepared to offer testimony as to the significant amount of money spent to rework the wells and return them to the capacity to produce in paying quantities, once Smith’s successors in interest took over. Counsel for Marshall Oil stated in his opening statement to the trial court that his client completely reworked the wells and installed new equipment, spending in excess of over half a million dollars in reworking and re-equipping the wells so that they would be able to produce in paying quantities. Since the trial court granted a directed verdict at the end of appellant’s evidence, it was unnecessary for appellee to call its witnesses who by all accounts would have so testified. Nonetheless, this fact alone suggests that the equipment Smith left on the premises had little industry value. Otherwise, significant expenditures would not have been required, and Smith would have attempted to recover his equipment. The evidence in the record does not show any efforts by Smith to recover the equipment he left on the leased premises at the time his successors in interest took over the leases, or at any time prior or subsequent to that time. When asked what he would have to do to produce the wells if he were to take them over again, Smith testified he had “no idea;” that he “didn’t know what Marshall Oil ha[d] done.” Evidence presented at trial established that while the wells were not producing under Smith’s operation from 1996 forward, they began to produce again, after reworking by Marshall Oil’s predecessors. This is evidenced in the February 2000 Gas Purchase Statement of Enerfin Resources , previously referenced in ¶ 17, hereinabove. Since substantial reworking was required, this lends credence to the belief that the value of Smith’s equipment was nominal, at best. Both Smith’s actions and inaction with regard to the equipment he left on the subject leases supports a determination that ownership vested in the surface owner, under the specific lease provision, but also that the equipment itself was of little or no value, vis-a-vis the subject leases. Smith did not testify as to the salvage value of his equipment. The testimony was inadequate to support a conclusion that Smith’s equipment was valuable. In addition, Smith did not contend that inclement weather or any other condition or circumstance prevented him from removing his equipment during the allowed six-month period.

CONCLUSION

¶ 23 Smith failed to present any equitable considerations to justify his failure to produce the Stacy-Paige lease, or to justify his failure to produce in paying quantities for the period of 1996-1998. In addition, Smith failed to produce any barrels of oil from the Stacy and Paige wells for the year 1999, and failed to present any equitable considerations to justify his failure to produce in 1999, as well. The evidence supports the trial court’s rendering a directed verdict for Marshall. We hold that the evidence is sufficiently substantial to sustain the findings and determinations of the trial court, and to sustain its directed verdict in favor of Marshall Oil. We hold that the evidence did not constitute compelling equitable circumstances that would justify the continuation of the subject leases in the face of a cessation of production, and in the face of a cessation of production in paying quantities.

¶24 Smith failed to present any evidence at trial regarding inclement weather to preclude removal, or any other variable for equitable consideration, that might have precluded his removal of the structures, equipment and fixtures within the six months following cessation of production, as required under the Exhibit A to this lease. Therefore, we hold that the weight of the evidence clearly supports the judgment of the trial court in this regard. Since Smith failed to remove the structures, equipment and fixtures as required under the November 30, 1987, addendum to the lease, ownership of same vested in the surface owner, under the specific provisions of the lease.

¶ 25 On certiorari granted upon Smith’s petition, the Court of Civil Appeals’ opinion is vacated; the judgment of the trial court is affirmed.

CERTIORARI PREVIOUSLY GRANTED; THE OPINION OF THE COURT OF CIVIL APPEALS, DIVISION I, IS VACATED, THE JUDGMENT OF THE TRIAL COURT IS AFFIRMED.

CONCUR: WATT, C.J., OPALA, V.C.J., HODGES, LAVENDER, KAUGER, BOUDREAU, EDMONDSON, JJ.

NOT PARTICIPATING: HARGRAVE, J.

      . The record reflects the following leases: November 12, 1987, lease with Scott as lessor and Goodnight as lessee (Exh. 1); November 30, 1987, lease with Scott as lessor and Smith as lessee (Exh. 2, that contains the Exhibit “A" attachment with the provision to remove structures or forfeit same, within six months of cessation of production); November 12, 1987, lease with Ratliff as lessor and Goodnight as lessee (Exh. 3); November 30, 1987, lease with Scott as lessor and Smith as lessee (Exh. 4); October 10, 1988, assignment of oil and gas leases, with Westoil Properties, Inc., assignor and Max Smith d/b/a Smith Oil, assignee (covering the Stacy and Paige lease in Seminole County, as well as the Brett lease that is not relevant to the instant matter)(Exh. 5); April 16, 1988, assignment of Overriding Royalty Interest with Max Smith d/b/a Smith Oil as assignor and Scott as assignee (covering the Stacy # 1-22 and Paige # 1-22 wells.)

        .See Plaintiff's exh. 12 and Defendant’s exh. 1.

      . A top lease is "an oil and gas lease to take effect only if the pre-existing lease should expire or be terminated.” Voiles v. Santa Fe Minerals, Inc., 1996 OK 13, ¶ 11, 911 P.2d 1205, 1207. The earlier leases are commonly referred to as base leases. Voiles, 1996 OK 13, ¶ 12, 911 P.2d 1205, 1208.

      . “Lifting expenses” include but are not limited to the following: costs of pump operation, pumper’s salaries, costs of supervision, gross production taxes, royalties payable to the lessor, electricity, telephone repairs, depreciation, and other incidental lifting expenses. Hininger v. Kaiser, 1987 OK 26, ¶ 5, n. 4, 738 P.2d 137, 139, n. 4.

      . As we determined in James Energy Company v. HCG Energy Corp., 1992 OK 117, 847 P.2d 333, two separate causes of action arise when it is claimed that a lessor violates an implied covenant to produce and market the product and when it is claimed that a lease expires under the terms of its habendum clause, for failure to produce in paying quantities. The former requires a demand that the lessee comply with the implied covenant, before a court of equity will grant a forfeiture, whereas the latter does not. Similarly, in Voiles v. Santa Fe Minerals, Inc., 1996 OK 13, 911 P.2d 1205, an action to quiet title in certain leasehold interests based upon the theory that a cessation of production clause controlled the habendum clause and terminated the base leases, we recognized the difference in an action filed by mineral owners to quiet title and cancel existing oil and gas leases, and a claim for breach of the implied covenant to market. In Voiles, we denied a party’s request for remand to take testimony on a claim based upon breach of the implied covenant to market, because the issue was not raised previously.

      . Trial Transcript at p. 74, 11. 4-7., Smith testifying.

      . Plaintiff's Exhs. 17, 18 (cumulative production for years 1996-1999 was 740 barrels of oil and for years 1996 through March 1999, was 614 mcf of gas.)

      . Plaintiff's Exhs. 60-62, 70-75.

      . Plaintiff's Exhs. 125-183.

      .Plaintiff's exhs. 60-62 and 70-75

      . Plaintiff's Exh. 16.

      . Trial Transcript at p. 74, 11. 4-7, Smith testifying.

      . Trial Transcript, at pp. 74-77, Smith testifying.

      . Plaintiff's Exhibits 60-62.

      . Plaintiffs Exh. 77.

      . Trial transcript at. p. 57, 11. 8-9, Smith testifying.

      . Trial transcript at p. 50, 11. 18-23, Smith testifying.

      . Trial transcript at p. 50, 1. 25, Smith testifying.

      . Trial transcript at p. 87, 11. 13-16, Smith testifying.

      . Plaintiffs Exh. 77.


author: HODGES, J.

text:
    2004 OK 8
    Bill PRICE as Personal Representative of the Estate of Jewel Martin, Plaintiff-Cross Claimant/Appellant, v. TLC HEALTH CARE, INC. d/b/a Oak Dale Manor, Defendant and Third Party Plaintiff, and Rocky R. Lemon, Defendant, H.A. Sand Springs, LLC, Defendant/Appellee, Harvey Angell, Defendant/Appellee, Janet Nibarger; and Julie Clemmer, RN, Defendants, v. Good Shepherd Hospice, L.L.C., Third Party Defendant and Cross Defendant.
    No. 98,091.
    Supreme Court of Oklahoma.
    Feb. 10, 2004.

      Mark A. Cox, Jerri K. Bird, Norman & Edem, Oklahoma City, OK, for Appellant.
    Stephanie Reaugh, Joseph H. Bocock, John D. Stiner, McAfee & Taft, Oklahoma City, OK, for Appellees H.A. Sand Springs Health Care, Inc. and Harvey Angelí.
   HODGES, J.

¶ 1 This is an action for injuries alleged to have been caused through substandard medical care provided at the Oak Dale Manor Nursing Home which is operated by TLC Health Care, Inc. (TLC). The action was brought by the personal representative of the estate of Jewel Martin, deceased, who was a patient at the facility.

¶ 2 The trial court granted summary judgment to two defendants, H.A. Sand Springs, LLC (HASS) and its sole member and manager Harvey Angelí who leased the nursing home premises to TLC. The Court of Civil Appeals affirmed in part, reversed in part, and remanded the case for further proceedings. This Court granted certiorari review and now vacates the opinion of the Court of Civil Appeals and affirms the summary judgment of the trial court.

¶ 3 At issue is whether HASS, the landlord, and Angelí, its manager, are legally responsible for any negligent or substandard medical care provided to a resident of the nursing home. The question presents an issue of law reviewed de novo. See Kluver v. Weatherford Hosp. Auth., 859 P.2d 1081, 1084 (Okla.1993).

HASS IS A MERE LANDLORD WHO INCURS NO LIABILITY UNDER THE NURSING HOME CARE ACT OR THE COMMON LAW DOCTRINE OF RE-SPONDEAT SUPERIOR FOR SUBSTANDARD CARE PROVIDED BY ITS NURSING HOME TENANT.

¶ 4 Under a 1999 lease agreement, HASS provided a “turn key” lease of a fully operational, 213 bed facility licensed and operated by TLC. The lease provides that TLC must pay all costs, expenses, and obligations related to the leased premises. HASS is not required to provide any service or do any act related to the premises. TLC is required to maintain property, casualty, and business interruption insurance along with workers’ compensation and medical malpractice insurance with HASS as a named insured under each of these policies. HASS receives a monthly rent payment for lease of the premises. In addition, HASS retained the right to inspect the operation, and to inspect and audit its business records.

¶ 5 Oklahoma’s Nursing Home Care Act (Act), Okla. Stat. tit. 63, § § 1-1901 through 1-1971 (2001 & Supp.2002), “provides a right of action for residents of nursing homes to redress specific wrongful acts and omissions. It provides for the recovery of damages.” Morgan v. Galilean Health Enters., Inc., 1998 OK 130, 977 P.2d 357, 361 n. 13. The Act gives every nursing home resident “the right to receive adequate and appropriate medical care consistent with established and recognized medical practice standards within the community.” Okla Stat. tit. 63, § 1-1918. This right is enforceable against “[t]he owner and licensee [who] are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident.” Id. at § 1~1939(A).

¶ 6 The Act defines “licensee” as “the person, a corporation, partnership, or association who is the owner of the facility which is licensed by the Department [of Health] pursuant to the provisions of the Nursing Home Care Act.” Id. at § 1-1902(13). “Owner means a person, corporation, partnership, association, or other entity which owns a facility or leases a facility. The person or entity that stands to profit or lose as a result of the financial success or failure of the operation shall be presumed to be the owner of the facility.” Id. § 1-1902(16).

¶ 7 As this Court has observed, “the language of the Act is not a model of clarity and precision.” Morgan, 977 P.2d at 361. Its definition of “owner” exemplifies that description. The first sentence which defines “owner” as the entity which owns or leases a facility is relatively unambiguous. The presumption provided in the second sentence, however, could include vendors or others who profit incidentally from the facility’s operation. That this could have been the Legislature’s intent is unlikely. Resolution of the precise meaning of “owner,” however, is not necessary to the determination of the liability of HASS and Angelí under the Act.

¶ 8 The liability of an owner or licensee under the Act is premised upon an “intentional or negligent act or omission of their agents or employees which injures the resident.” Okla. Stat. tit 63, § 1-1939(A). This provision is a special rule of the common law doctrine of respondeat superior. Under that doctrine, responsibility for an agent’s injury to third parties is placed on the party that hires, directs, and controls the agent. See Texaco, Inc. v. Layton, 395 P.2d 393, 396 (Okla.1964).

¶ 9 Those who are alleged to have provided substandard medical care were employed by the licensed nursing home operator, TLC, not HASS. HASS had absolutely no control over or participation in the residents’ care. With no control over the agents of TLC who delivered the medical care, there is simply no basis to impose liability on HASS for any substandard care the resident may have received. The trial court’s summary judgment in favor of HASS and its manager, Angelí, was therefore correct. This Court offers no opinion concerning the liability of this landlord for a resident’s injury from a defect or failure in the physical aspects of the facility.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT AFFIRMED.

¶ 10 ALL JUSTICES CONCUR.

      . Angelí died after the judgment was entered. The action has been revived against Richard An-gell, executor of the estate of Harvey Angel!.

      . The term "owner” in the Act is discussed in Fanning v. Brown, 2004 OK 7, decided today.

      . The Court of Civil Appeals concluded that HASS was an "owner” under the Act based upon the lease agreement which in its view provided HASS with "substantial control over the operation” of the nursing home. It based this conclusion primarily on the fact that the lease agreement required the operator to cover the landlord as a named insured under its malpractice policy. That court then applied a "balancing test” to determine whether "various public policy considerations,” such as the fact that nursing homes are highly regulated by the State, protected residents from "the conduct of the defendant landlord.” It concluded that, as a matter of law, HASS had a duty to protect residents from the medical malpractice of the operator.
      The two primary flaws in the analysis are (1) the lease provided the landlord no control over the care provided to residents, and (2) no "balancing test” was applicable because the Act provided the rule of respondeat superior to address injury to or substandard care of nursing home residents.

      . As the Court of Civil Appeals observed, the lease agreement and the relationship engendered thereby do not amount to a joint venture. There was no profit sharing arrangement. TLC was obligated only to pay HASS the fixed monthly rental payments set forth in the lease.