author: KAUGER, J.

text:
    2002 OK 35
    In re Matthew Wayne HARRIS, Debtor, Paul Stevens and Latricha Stevens, Plaintiffs, v. Matthew Wayne Harris, Defendant.
    No. 97,286.
    Supreme Court of Oklahoma.
    May 7, 2002.

      James L. Bentley, Del City, OK, for Plaintiffs.
    D. David Sisson, Norman, OK, Elaine M. Dowling, Oklahoma City, OK, for Defendant/Debtor. f
   KAUGER, J.

11 We are asked to answer two questions:

1) whether an owner of real property who places trust funds with a general contractor pursuant to the Oklahoma construction trust fund statutes, 42 0.98.2001 §§ 152 and 153, is a beneficiary of the statutory construction lien scheme to the extent of any lienable claims arising from the contract between the owner and the general contractor; and 2) whether the Oklahoma construction trust fund statutes, 42 0.8.2001 §§ 152 and 158, create a fiduciary relationship between the owner of real property and a general contractor to the extent that there are liena-ble claims arising from a construction contract? We answer both questions in the affirmative.

12 Our determination that an owner of real property placing trust funds with a general contractor pursuant to the Oklahoma construction trust fund statutes, 42 0.9.2001 §§ 152 and 158, is a beneficiary of the statutory construction lien scheme to the extent of any lienable claims arising from the contract between the owner and the general contractor is supported by: 1) our decisions in Manley v. Brown, 1999 OK 79, 989 P.2d 448; Sandpiper North Apartments, Ltd. v. American Nat'l Bank & Trust Co. of Shaumee, 1979 OK 124, 600 P.2d 882 and Roofing & Sheet Metal Supply Co. of Tulsa, Inc. v. Golzar-Nejad Khalil, Inc., 1996 OK 101, 925 P.2d 55; 2) federal jurisprudence construing Oklahoma's construction trust fund statutes; and 8) the majority of extant jurisprudence addressing the issue of the beneficiary status of owners under similar statutory schemes.

T3 We hold that 42 0.8.2001 §§ 152 and 153 create a fiduciary relationship between the owner of real property depositing construction funds with a general contractor and the contractor to the extent that there are lienable claims arising from a construction contract. In so doing, we align ourselves with the jurisdictions recognizing that statutes utilizing trust fund language like that of 42 0.8.2001 §§ 152 and 153 create a confidential affinity and with those federal decisions construing the Oklahoma statutes and acknowledging the statutorily created fiduciary relationship.

FACTS

T4 The debtor/defendant, Matthew Wayne Harris (Harris/debtor/contractor), is the sole proprietor of Harris Construction (the construction company). On July 29, 1999, the plaintiffs, Paul and Latricha Stevens (Stevens/owners), contracted with the construction company to repair and enlarge their Del City home. Initially, the contract price totaled $90,000.00 and required three $30,000.00 disbursals-a first payment, a see-ond payment onee the home was "dried in", and a final payment. By agreement of the parties, the contract was modified subsequently to include additional work by the construction company and to boost the price to $100,000.00.

15 The owners paid Harris Construction $30,000.00 on August 6, 1999, and construction began in October. After the foundation was poured in November, the owners made additional payments totaling $40,000.00. Because construction was never completed, the Stevens did not disburse the final $80,000.00.

16 Northwest Roofing Company (roofer/subcontractor) filed a mechanies's and ma-terialmen's lien against Harris Construction and the Stevens' home on February 3, 2000. In response, the Stevens filed a breach of contract suit in district court against the construction company on June 7, 2000. Five months later, the contractor d/b/a Harris Construction filed a voluntary petition in bankruptcy.

17 On February 12, 2001, the Stevens filed an adversary pleading in the bankruptcy court seeking $70,000 for breach of contract and a determination that the damages are nondischargeable pursuant to 11 U.S.0.1998 § 523(a)(4) for fraud or defaleation while acting in a fiduciary capacity. A finding in favor of the owners under § 528(a)(d4) requires that they demonstrate a fiduciary relationship with the debtor and the commission of a defaleation within the confines of the relationship. Recognizing that state law is important in determining the existence of a fiduciary relationship, the bankruptey court certified questions to this Court pursuant to the Uniform Certification of Questions of Law Act, 20 0.8.2001 § 1601 et seq., on January 22, 2002. We set a briefing cycle which was completed on March 5, 2002.

I.

T8 AN OWNER OF REAL PROPERTY PLACING TRUST FUNDS WITH A GENERAL CONTRACTOR PURSUANT TO THE OKLAHOMA CONSTRUCTION TRUST FUND STAT UTES, 42 0.9.2001 §§ 152 AND 153, IS A BENEFICIARY OF THE STATUTORY CONSTRUCTION LIEN SCHEME TO THE EXTENT OF ANY LIENABLE CLAIMS ARISING FROM THE CONTRACT BETWEEN THE OWNER AND THE GENERAL CONTRACTOR.

19 Both Stevens and Harris recognize that the Oklahoma lien construction statutes protect subcontractors and suppliers performing work under a contract between an owner of real property and a contractor. The parties differ in that the homeowners assert that the same statutory scheme-42 0.8.2001 §§ 152 and 153, benefits owners placing funds in trust with contractors for the payment of lienable claims. In contrast, Harris contends that the clear language of the statutes requiring that funds be held for the payment of "lienable claims" requires a construction of the statute limiting protection to those entitled to payment for work completed or supplies furnished, ie subcontractors and suppliers. Essentially, the contractor argues that owners simply have no standing to assert a claim arising under the lien construction statutes. We disagree.

110 We have not addressed the precise issue of whether owners enjoy beneficiary status under 42 0.8.2001 §§ 152 and 153. Nevertheless, we have promulgated opinions instructive on the issue.

{11 The primary issues presented in Manley v. Brown, 1999 OK 79, 989 P.2d 448 involved the right of clients to proceed in a malpractice action against attorneys and a law firm for allegedly substandard performance in rendering trial and appellate service in defending against a subcontractor's lien claim. In discussing cases demonstrating that a subcontractor must take affirmative steps to perfect a claim against a contractor for misapplied trust funds, we considered these same teachings as they related to owners' claims against contractors. The opinion provides at 1 19:

"... [The cases} do not teach that the merits of an owner's claim against its contractor depend on a subcontractor's compliance with the notice requirements of the lien statute. Whether a subcontractor must give the § 142.1 notice (when it is due) for an owner to recover against its contractor who is alleged to have misapplied construction trust funds is a question unanswered by case law extant at the critical time here ... In sum, even if notice was the owner's due, the legal impact of a subcontractor's failure to give that notice upon a contractor's liability to the owner was then (and is now) far from clearly settled." [Emphasis in original.]

The need for the subcontractor's statutorily required lien notification was left undecided in Manley to the extent that it affected the owner's rights against a contractor. Nevertheless, the opinion recognizes that an owner may benefit, as against a contractor, from the statutory protections of Oklahoma's construction trust fund lien statutory scheme.

{ 12 In Sandpiper North Apartments, Ltd. v. American Nat'l Bank & Trust Co. of Shawnee, 1979 OK 124, 600 P.2d 332, owners of real property and a contractor (collectively, owners) entered into three agreements with a subcontractor. The subcontractor assigned the proceeds of progress payments to its banker as security for financing the subcontracts. The owners made progress payments on the subcontractor's work jointly to the subcontractor and to the bank. A portion of the payments were diverted when the bank applied monies to debts unassociated with the construction projects. Claiming protection under 42 O.S.1971 §§ 152 and 158, the owners sued to recover the amounts paid to the subcontractor. We held in favor of the owners in Sandpiper determining that the proceeds of the construction project were subject to the statutory trust provisions, 42 0.S.1971 §§ 152 and 158, to the extent of the valid lienable claims. In Sandpiper, both the owner of the real property and the contractor benefitted under the construction trust fund statutes.

1 13 We considered the position of owners of real property under other provisions of Oklahoma's mechanics and materialmen's lien laws in Roofing & Sheet Metal Supply Co. of Tulsa, Inc. v. Golzar-Nejad Khalil, Inc., 1996 OK 101, 925 P.2d 55. The issue presented was whether the subcontractor/supplier of roofing materials was entitled to a lien against the owners' property pursuant to 42 0.8.1991 §§ 141 and 143. Recognizing that materialmen's liens are purely statutory, we stated in Golzar-Nejad that such statutes work together "to provide protection from financial loss to contractors, subcontractors and materialmen, as well as to the owners of real property." [Emphasis supplied.] Determining that owners were entitled to protection under the statutory scheme, we held that the owner could only be billed for the supplies actually utilized in the roofing job. In so doing, we acknowledged the principle that: "[elvenhanded application of a statute requires that we not construe it one way for the benefit of an affected party, and then construe it the other way when the same affected party would suffer." [Emphasis in original.] The mechanic's and materi-almen's statutes guaranteed the sub-contractor a lien for all materials utilized in the roofing job. However, the owner of real property benefitted from the same lien laws and was obligated to pay for only those materials utilized on the construction project.

114 Our decisions in Manley, Sandpiper and Golzar-Nejad place us squarely in the majority camp which recognizes that owners enjoy the protection offered by construction trust fund statutes. These courts reason that the primary purpose of such statutory schemes is to protect the owner involved in a fiduciary relationship with the contractor. The property owner is considered the direct beneficiary of the statutorily ereated trust because of the owner's potential for double liability if the contractor does not pay laborers and materialmen-the precise situation presented here as the owners must satisfy the subcontractor's lien although they have previously paid these funds to the contractor. Although these decisions are not binding, we do note that two federal courts considering the effect of our lien statutes have determined that owners are intended beneficiaries of the statutory trust provisions.

1 15 We hold that an owner of real property placing trust funds with a general contractor pursuant to the Oklahoma construction trust fund statutes, 42 0.98.2001 §§ 152 and 153, is a beneficiary of the statutory construction lien scheme to the extent of any lienable claims arising from the contract between the owner and the general contractor.

I.

116 TITLE 42 0.8.2001 §§ 152 AND 153 CREATE A FIDUCIARY RELATIONSHIP BETWEEN THE OWNER OF REAL PROPERTY DEPOSITING CcoNSTRUCTION FUNDS WITH A GENERAL CONTRACTOR AND THE CONTRACTOR TO THE EXTENT THAT THERE ARE LIENABLE CLAIMS ARISING FROM A CONSTRUCTION CONTRACT.

#17 The owners contend that the duty imposed on the contractor by 42 0.8. 2001 §§ 152 and 153 to hold funds in trust for the payment of sub-contractors and suppliers creates a fiduciary duty between the owner and the contractor to the extent there are lienable claims due and owing by reason of a building or remodeling contract. The contractor argues that there is nothing to suggest facts sufficient to find a confidential relationship, ie. the substitution of one party's will for that of another.

118 Courts disagree on whether mechanic's lien statutes create an enforceable trust from which a fiduciary relationship between property owners and contractors arises. Each decision is based, at least in part, on the language of the state statute. General statutes merely imposing criminal penalties for failure to properly dispose of funds have not been found to create a fiduciary relationship. Nevertheless, where statutes expressly designate monies received by a contractor as "trust fund" monies or where some other statutorily imposed professional requirement exists for general contractors, the courts have held an express trust arises imposing fiduciary responsibilities on the contractor in favor of the property owner. Cases with statutes similar to the Oklahoma scheme find the existence of a fiduciary obligation between owners/purchases of real property and general contractors. Further, the federal courts having the opportunity to construe Oklahoma's mechanic's and materialman's lien statutes have determined that a fiduciary relationship exists between owners and their contractors.

{19 The contractor's argument that the relative bargaining powers between the parties controls whether a confidential relationship exists ignores the fact that a fiduciary relationship may arise from statute as was acknowledged in Lowrance v. Patton, 1985 OK 95, 710 P.2d 108.

120 Lowrance involved an action by the administrator of a veteran's estate against the head of the Oklahoma Veterans Center to recover the veteran's funds which were kept in a special account at the Veterans Center and which were improperly paid to the veteran's son upon his father's death. At issue in Lowrance was 72 O.S.1981 § 222 which authorized the establishment of special agen-ey accounts by the Department of Veterans Affairs for receipt and disbursement of a patient's personal funds. In Lowrance, we determined that a fiduciary relationship was created by statute through which the care and custody of the veteran's funds were based upon an implied agreement between the Veterans Center and the decedent obligating the Veterans Center to safely hold the funds and to disburse them at the direction of the veteran or his lawfully appointed representative.

121 Just as the statute at issue in Lowrance imposed duties upon the Veterans Center in favor of its patients, the construction trust fund statutes impose a duty upon contractors to keep owner funds in trust for the payment of valid lienable claims. Section 153 specifically provides that no portion of the funds collected from owners by contractors under § 152 "shall be used for any other purpose until all lienable claims due and owing or to become due and owing shall have been paid." Here, as in Lowrance, the fidu-clary duty between the owner and the contractor arises from the clear language of the statutory scheme identifying the owner-deposited funds as "trust funds" and imposing a mandatory duty on the contractor to disburse those funds for payment of potential liens against the owner's property.

1 22 We align ourselves with those jurisdictions determining that statutes similar to Oklahoma's identifying owner deposited dollars as "trust fund" monies and with the federal courts who have previously determined that a fiduciary relationship exists between owners and their contractors under 42 ©.9.2001 §§ 152 and 158. As in Lowrance v. Patton, ¶ 19, supra, the confidential affinity between the owner and the contractor arises from the statutory scheme. We determine that 42 0.8.2001 §§ 152 and 153 create a fiduciary duty between the owner of real property depositing construction funds with a general contractor and the contractor to the extent that there are Henable claims arising from a construction contract.

CONCLUSION

123 We recognize that an important purpose of bankruptcy statutes is to relieve an honest debtor from the weight of oppressive indebtedness and to permit the person to start afresh. Nevertheless, this Court does not extend it auspices, in statutory construction, to consider the statute's propriety, desirability, wisdom or practicability. These matters are left to the legislative department Here, the Legislature has denominated owner monies placed with a contractor as "trust funds" in 42 O.S.2001 § 152 and provided in mandatory terms in § 153 that those funds shall not be disbursed for any purpose other than for the payment of all lienable claims due and owing until all such claims have been satisfied. The Stevens, as owners, are beneficiaries of the statutory construction trust fund lien scheme. Harris, as the Stevens' general contractor, was engaged in a fiduciary relationship with the owners created by statute to the extent that he held funds for the payment of materialmen's and subcontractor's liens. Harris was charged with the duty to hold the Stevens' advances in trust for payment of subcontractors and suppliers pursuant to 42 0.$.2001 §§ 152 and 153.

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

OPALA, J. concurs in result.

      . The Bankruptcy Court certified the following questions: '
      1) Is an owner of real property, who has contracted with a general contractor for a building or remodeling project on the owner's property, entitled to beneficiary status under the Oklahoma Construction Fund statutes, OKLA. STAT. tit. 42, §§ 152 & 153, if and to the extent there are lienable claims due and owing by reason of such building or remodeling contract?
      2) Do the Oklahoma construction fund trust statutes, OKLA. STAT. tit. 42 §§ 152 and 153, create a fiduciary relationship as between a contractor and the owner of real property upon which building or remodeling has occurred pursuani to a contract between such contractor and owner, to the extent there are 'lienable claims due and owing by reason of such building or remodeling contract?
      The questions are reformulated pursuant to 20 0.$.2001 § 1602.1.

      . Title 42 0.$.2001 §§ 152 provides:
      "(1) The amount payable under any building or remodeling contract shall, upon receipt by any contractor or subcontractor, be held as trust funds for the payment of all lienable claims due and owing or to become due and owing by such contractors or subcontractors by reason of such building or remodeling contract.
      (2) The monies received under any mortgage giver: for the purpose of construction or remodeling any structure shall upon receipt by the mortgagor be held as trust funds for the payment of all valid lienable claims due and owing or to become due and owing by such mortgagor by reason of such building or remodeling contract.
      (3) The amount received by any vendor of real property under a warranty deed shall, upon receipt by the vendor, be held as trust funds for the payment of all valid lienable claims due and owing or to become due and owing by such vendor or his predecessors in title by reason of any improvements made upon such property within four (4) months prior to the delivery of said deed."
      Section 152 was last amended in 1968. Therefore, reference is made 'to the current statute.

      . Title 42 0.$.2001 § 153 provides:
      "(1) The trust funds created under Section 152 of this title shall be applied to the payment of said valid lienable claims and no portion thereof shall be used for any other purpose until all lienable claims due and owing or to become due and owing shall have been paid.
      (2) Any person willfully and knowingly appropriating such trust funds to a use not permitted. by subsection (1) of this section, upon conviction, shall be guilty of the felony of embezzlement and shall be punished by imprisonment in the State Penitentiary for a period not to exceed five (5) years or by a fine not to exceed Ten Thousand Dollars ($10,000.00), or by both such imprisonment and fine.
      (3) If the party receiving any money under Section 152 of this title is an entity having the characteristics of limited liability pursuant to law, such entity and the natural persons having the legally enforceable duty for the management of the entity shall be liable for the proper application of such trust funds and subject to punishment under subsection (2) of this section. For purposes of this section, the natural persons subject to punishment shall be the managing officers of a corporation and the managers of a limited liability company.
      (4) The existence of such trust funds shall not prohibit the filing or enforcement of a labor, mechanic or materialmen's lien against the affected real property by any lien claimant, nor shall the filing of such a lien release the holder of such funds from the obligation created under this section or Section 152 of this title."
      Section 153 remains unaltered since the contract was entered between the owner and the general contractor except to the extent that subsection 3 of the statute refers to corporate liability. Therefore, reference is made to the current statute.

      . Title 42 0.$.2001 § 152, see note 2, supra; 42 ©.$.2001 § 153, see note 3, supra.

      . We agree with Harris that in answering a certified question, the Court does not presume facts outside those offered by the certification order. Jones v. University of Central Oklahoma, 1995 OK 138, ¶ 5, 910 P.2d 987. However, we note that the Stevens have not asked the Court as did the plaintiff in Jones to add or delete facts which might alter the legal conclusion reached on cer-tiorari. Further, we note that the record presented supports the Stevens' contention that their home required repairs because of damages incurred during the May 3, 1999, tornado. Finally, Harris does not dispute this contention.

      . 11 U.S.C.1998 § 523(a)(4) provides:
      "(a) A discharge under section 727, 1141, 1128(a), 1128(b), or 1328(b) of this title does not discharge an individual debtor from any debt-
      (4) for fraud or'defalcation while acting in a fiduciary capacity, embezzlement, or larceny . . ."

      . Currently, the Stevens are in danger of losing their home. Although no sheriff's sale has been conducted, judgment has been entered against the owners in foreclosure. Further, the roofer's lien remains unpaid.

      . A defalcation within the meaning of 11 U.S.C. 1998 § 523(a)(4), see note 6, supra, is misappropriation of trust funds or money held in a fidu-clary capacity-thé failure to properly account for such funds. In re Banks, 263 F.3d 862, 869 (9th Cir.2001); In re Hemmeter, 242 F.3d 1186, 1190 (9th Cir.2001). See also, State ex rel. Oklahoma Bar Ass'n v. Cross, 1996 OK 131, ¶ 5, 932 P.2d 1107.

      . In re Young, 91 F.3d 1367, 1370 (10th Cir. 1996). See also, L. Ponoroff, "Construction Claims in Bankruptcy: Making the Best of a Bad Situation," 11 Bkr.Dev.J. 343 (1994-95).

      . Manley v. Brown, 1999 OK 79, ¶ 18, 989 P.2d 448; In re Tefertiller., 1989 OK 60, ¶ 9, 772 P.2d 396.

      . Title 42 0.$.2001 § 152, see note 2, supra; 42 0.$.2001 § 153, see note 3, supra.

      . The contractor's contention that the owners only protection in the mechanics and material-men's statutes is to be found in 42 0.$.2001 §§ 142.1 and 143 is unpersuasive. These statutes deal with the necessity of notice to the property owner from the sub-contractor prior to the enforcement of a sub-contractor's lien against the owner's property. At issue here is not the relationship between the owner and the subcontractor, but the protections which an owner may receive in its dealings with a general contractor.

      . Although the statutory provisions have been amended since our decision in Sandpiper North Apartments, Ltd. v. American Nat'l Bank & Trust Co. of Shawnee, 1979 OK 124, 600 P.2d 332, the language relating to trust funds remains substantially unchanged. Title 42 O.S.1971 § 152 provides in pertinent part:
      "(1) The amount payable under any building or remodeling contract shall, upon receipt by any contractor or subcontractor, be held as trust funds for the payment of all lienable claims due and owing or to become due and owing by such contractors or subcontractors by reason of such building or remodeling contract...."
      Title 42 O.$.1971 § 153 provides in pertinent part:
      "... (2) Such trust funds shall be applied to the payment of said valid lHenable claims and no portion thereof shall be used for any other purpose until all lienable claims due and owing or to become due and owing shall have been paid...."

      . Title 42 0.$.2001 §§ 142 and 143 are the mechanisms through which a subcontractor or supplier may file a valid lien against real property. Respectively, they provide in pertinent part:
      "Any person who shall, under oral or written contract with the owner of any tract or piece of land, perform labor, furnish material or lease or rent equipment used on said land for the erection, alteration or repair of any building, improvement or structure thereon or perform labor in putting up any fixtures, machinery in, or attachment to, any such building, structure or improvements ... shall have a lien upon the whole of said tract or piece of land, the buildings and appurtenances... ."
      "Any person who shall furnish any such material or lease or rent equipment used on said land or perform such labor as a subcontractor, or as an artisan or day laborer in the employ of the contractor, may obtain a lien upon such land, or improvements, or both, from the same time, in the same manner, and to the same extent as the original contractor, for the amount due him for such material, equipment and labor ... The risk of all payments made to the original contractor shall be upon such owner until the expiration of the ninety (90) days herein specified, and no owner shall be Hable to an action by such contractor until the expiration of said ninety (90) days ..."
      The statutes remain unchanged from their 1991 version. Therefore, references are to the current statutory compilation.

      . Matter of Thomas, 729 F.2d 502, 505 (7th Cir.1984); Matter of Cross, see note 23, infra; Carey Lumber Co. v. Bell, see note 18, infra [Oklahoma lien statutes benefit subcontractors, materialmen as well as lenders and owners.]; First Commercial Corp. v. First Nat'l Bancorporation, Inc., 572 F.Supp. 1430, 1433 (D.Colo.1983); General Elec. Supply Co. v. Epco Constrs., Inc., 332 F.Supp. 112, 115 (S.D.Tx.1971) Atlantic Refining Co. v. Continental Casualty Co., 183 F.Supp. 478, 484 (W.D.Penn.1960); Matter of Evans, 1 BR. 229-30 1979); Maull v. Stokes, 31 Del.Ch. 188, 68 A.2d 200-01 (1949); J. Dawson, "1409 Harvard Law Review", 87 Harv.L.Rev. 1409, 1451 [The owner is the ultimate beneficiary of lien statutes.]. But see, In re Marino, 115 BR. 863, 869 (Bkrtcy.D.Md.1990); In re Griffin, 111 BR. 42-43 (N.D.NY.1990).

      . In re Specialized Installers, Inc., 12 BR. 546, 551 (Bkrtcy.D.Colo.1981); Maull v. Stokes, see note 15, supra.

      . First Commercial Corp. v. First Nat'l Bancorporation, Inc., see note 15, supra; In re Specialized Installers, Inc., see note 16, supra.

      . Carey Lumber Co. v. Bell, 615 F.2d 370, 373 (5th Cir.1980) [Under Oklahoma law, the lien trust statutes benefit subcontractors and materi-almen as well as lenders and owners. The opinion has been abrogated only to the extent thai it relates to federal law and culpability on the dis-chargeability issue.]; Matter of Cross, see note 23, infra [Oklahoma lien trust statutes imposed express fiduciary duties on the contractor for the benefit of the home buyer.].

      . Title 42 0.$.2001 § 152, see note 2, supra; 42 ©.$.2001 § 153, see note 3, supra.

      . Title 42 0.$.2001 § 152, see note 2, supra; 42 0.$.2001 § 153, see note 3, supra.

      . Cases finding such a relationship include: Carey Lumber Co. v. Bell, see note 18, supra; In re Romero, 535 F.2d 618, 621 (10th Cir.1976); In re Morris Ketchum, Jr. & Assoc., 409 F.Supp. 743-44 (S.D.N.Y.1975); In re Manley, 135 BR. 137, 140 (N.D.Okla.1992); In re Turner, 134 BR. 646, 655 (N.D.Okla.1991); In re Wesley, 5 BR. 172-73 (Bkrtcy.W.D.Okla.1980); Maull v. Stokes, see note 15, supra; In re Weedman, 65 BR. 288, 291 (Bkrtcy.W.D.Ky.1986); In re Schultz, see note 24, infra; In re Edmond, 5 BR. 172-73 (Bkrtcy.W.D.Okla.1980); Heyerdale v. Haneman, 170 So.2d 401, 403 (La.App. 4th Cir.1964), writ refused, 247 La. 486, 172 So.2d 293 (1965);. See also, Maiter of Cross, note 23, infra, in which the 5th Circuit noted that the Oklahoma lien trust statutes imposed express fiduciary duties on the contractor for the benefit of a home buyer.
      Cases holding that no fiduciary relationship exists between contractors and owners include: Matter of Cross, see note 23, infra; In re Pedrazzini, see note 23, infra; Matter of Dloogoff, see note 23, infra; In re Thornton, see note 23, infra; In re Shaffer, 206 BR. 95, 98 (Bkrtcy.M.D.Penn.1997); In re Sigler, 196 BR. 762, 765 (Bkrtcy.W.D.Ky.1996); In re Gropp, 153 BR. 350-51 (Bkrtcy.M.D.Fla.1993); In re Marino, 115 B.R. 863, 869 (Bkrtcy.D.Md.1990); In re Davis, 115 BR. 346, 349 (Bkrtcy.N.D.Fla.1990); In re Dobbs, 115 B.R. 258, 266 (Bkrtcy.D Idaho 1990); In re Potter, 88 BR. 851, 853 (Bkrtcy.N.D.Ill 1988); In re Gould, 65 BR. 87, 89 (Bkrtcy.N.D.N.Y.1986); In re Mettetal, see note 23, infra; In re Crea, 31 BR. 239, 244 (Bkrtcy.D.Minn.1983); In re Wilson, 30 BR. 91, 93 (Bkrtcy. E.D.Tenn.1983); Davis v. Carpenter, 247 Ga. 156, 274 S.E.2d 567-68 (1981).

      . In re Sigler, see note 21, supra; In re Ballard, 26 B.R. 981, 984 [No trust imposed in absence of statutory lien law.]; T. Missling, "Effect of a Subsequent Bankruptcy on Construction Project Payments Issue: Is a Payment Made by a General Contractor to its Subcontractor or Supplier, Before Going into Bankruptcy, Avoidable as a Preferential Transfer?", 11-Jan. Constr.L. 10-11 (1991).

      . Matter of Cross, 666 F.2d 873, 880 (5th Cir. 1982); In re Pedrazzini, 644 F.2d 756, 758 (9th Cir.1981); Matter of Dloogoff, 600 F.2d 166, 168 (8th Cir.1979); In re Thornton, 544 F.2d 1005, 1007 (9th Cir.1976); In re Sigler, 196 BR. 762, 765 (Bkrtcy.W.D.Ky.1996); In re Gropp, see note 21, supra; In re Mettetal, 41 BR. 80, 89 (Bankr.D.Tenn.1984); In re Crea, see note 21, supra. But see, In re Weedman, note 21, supra.

      . In re Schultz, 46 B.R. 880, 886 (Bankr.D.Nev.1985); In re Ballard, 26 BR. 981, 984 (1983); T. Missling, "Effect of a Subsequent Bankruptcy on Construction Project Payments Issue: Is a Payment Made by a General Contractor to its Subcontractor or Supplier, Before Going into Bankruptcy, Avoidable as a Preferential Transfer?," see note 22, supra. But see, In re Marino, note 21, supra [Trust language in statute operated only for benefit of subcontractors and suppliers.].

      . In re Romero, 535 F.2d 618, 621 (10th Cir. 1976) [New Mexico licensing statute for construction contractors imposed fiduciary duty on contractor.].

      . In re Romero, see note 25, supra; In re Morris Ketchum, Jr. & Assoc., see note 21, supra; In re Edmond, see note 21, supra; Heyerdale v. Haneman, see note 21, supra; Maull v. Stokes, see note 18, supra. See also, In re Turner, 134 BR. 646, 655 (Bkrtcy.N.D.Okla.1991) [In suit brought by materialman, bankruptcy court recognized that contractor was acting in a fiduciary when it received sums to pay materialman from owner].

      . Carey Lumber Co. v. Bell, see note 18, supra; In re Manley, see note 21, supra; In re Turner, see note 21, supra. See also, Matter of Cross, note 23, supra, in which the 5th Circuit noted that the Oklahoma lien trust statutes imposed express fiduciary duties on the contractor for the benefit of a home buyer. But see, In re Baird, 114 B.R. 198, 203 (9th Cir.BAP (Ariz.)1990) [Determining that trust arose only in favor of subcontractors and suppliers.].

      . Title 72 0.$8.1981 § 222 provides in pertinent part:
      ".. »[EJxcept nothing contained herein prohibits the establishment and utilization of special agency accounts by the Department of Veterans Affairs and its constituent institutions, as may be approved by the Special Agency Account Board, for receipt and disbursement of the personal funds of Veteran Center patients and members and/or for receipt and disbursement of charitable contributions and donations for use by and for patients and members."

      . Title 42 0.8.2001 § 153, see note 3, supra.

      . Title 42 0.$.2001 § 152, see note 2, supra.

      . "Shall" can be used permissively. Walker v. Group Health Serv., Inc., 2001 OK 2, ¶25, 37 P.3d 749; Minie v. Hudson, 1997 OK 26, ¶17, 934 P.2d 1082; Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, 10, 619 P.2d 869. However, generally, when the Legislature uses the term "shall", it signifies a mandatory directive or command. Walker v. Group Health Serv., Inc., this note, supra; United States through Farmers Home Admin. v. Hobbs, 1996 OK 77, ¶7, 921 P.2d 338; State ex rel. Macy v. Freeman, 1991 OK 59, ¶8, 814 P.2d 147; Forest Oil Corp. v. Corporation Comm'n, 1990 OK 58, ¶26, 807 P.2d 774.

      . Title 42 0.$.2001 § 152, see note 2, supra; 42 0.$.2001 § 153, see note 3, supra.

      . Williams v. United States Fidelity & Guaranty Co., 236 U.S. 549, 35 S.Ct. 289, 59 L.Ed. 713 (1915); Matter of Thomas, see note 15 supra.

      . See, State ex rel. Cartwright v. Dunbar, 1980 OK 15, ¶8, 618 P.2d 900; Tate v. Logan, 1961 OK 136, ¶ 0, 362 P.2d 670.

      . Title 42 O.S.2001 § 152, see note 2, supra.

      . Title 42 O.S.2001 § 153, see note 3, supra.

      . Title 42 0.$.2001 § 152, see note 2, supra; 42 ©.$.2001 § 153, see note 3, supra.


source: Caselaw Access Project

author: WINCHESTER, J. KAUGER, J., SUMMERS, J., OPALA, J.,

license: Public Domain

text:
    2002 OK 47
    Jack L. GRIMES, Robert Godwin, Representative Bill Graves, Ed W. Jantzen and Jack Thompson, Petitioners, v. The CITY OF OKLAHOMA CITY, a municipal corporation, The Oklahoma City Metropolitan Area Public Schools Trust, Carl E. Edwards, Chairman and Trustee, and Trustees of J.W. Mashburn, Stanley F. Hupfield, Patrick T. Rooney, Linda P. Lambert, Rudy J. Alvarado and Valerie Thompson, The City of Lawton, a municipal corporation, and The City of Ardmore, a municipal corporation, Respondents.
    No. 96,836.
    Supreme Court of Oklahoma.
    June 4, 2002.
    As Corrected July 8, 2002.

      William D. Graves, Oklahoma City, OK, Pro Se and for Petitioners Jack L. Grimes, Robert Godwin, Ed W. Jantzen, Jack Thompson.

    Thomas J. Roach, Oklahoma City, OK, for Petitioners Ed W. Jantzen, Jack L. Grimes, Robert Godwin.
    John H. Vincent, Frank V. Jensen, Randy W. Henning, City Attorney and Office of City Attorney, City of Lawton, OK, for Respondent City of Lawton, Oklahoma.
    Diane Lewis, Kenneth D. Jordan, Marylu T. Gordon, Municipal Counselor and Office of Municipal Counselor, City of Oklahoma City, OK, for Respondents The Oklahoma City Metropolitan Area Public Schools Trust, Carl E. Edwards, Chairman and Trustee, and Trustees J.W. Mashburn, Stanley F. Hup-field, Patrick T. Rooney, Linda P. Lambert, Rudy J. Alvarado, Valerie Thompson.
    Clyde A. Muchmore, Mark S. Grossman, Mary H. Tolbert, Crowe & Dunlevy, Oklahoma City, OK, for Respondent City of Oklahoma City.
    William P. Bleakley, Linda Maria Meoli, Stephanie J. Mather, The Center for Education Law, Inc., Oklahoma City, OK, for Amicus Curiae Independent School District No. 89 of Oklahoma County, Oklahoma.
    Richard B. Wilkinson, John Morris Williams, Oklahoma Education Association, Oklahoma City, OK, for Amicus Curiae Oklahoma Education Association.
    Charles E. Wade, Jr., Wade and Mackey, Lawton, OK, for Amicus Curiae Independent School District No. 8 of Comanche County, Oklahoma.
    Diane Pedicord, for Amicus Curiae Oklho-ma Municipal League, Inc.
    Douglas F. Price, Office of Attorney General for State of Oklahoma, Oklahoma City, OK, for Intervenor Office of the Attorney General of the State of Oklahoma.

      . Attorneys listed herein are those who have entered appearances in the instant cause. Attorneys whose names appear on briefs but who have failed to enter an appearance as required by Okla.Sup.Ct.R. 1.5(a) are not listed herein.

   WINCHESTER, J.

¢1 The instant matter concerns the constitutionality of a statute enacted by the legislature in November, 1999 pursuant to 1999 Okla.Sess. Laws, ch. 217, § 5, codified as 11 0.8.2001, § 22-159. Also at issue are the provisions of two municipal ordinances, Oklahoma City ordinance no. 21,805 and Lawton ordinance no. 99-29, adopted in reliance on the statute. The parties agree we should assume original jurisdiction because this cause involves publict juris issues. Indeed, this Court has assumed original jurisdiction in controversies involving the constitutionality of statutes and public finances. See, e.g., Phillips v. Oklahoma Tax Commission, 1978 OK 34, 577 P.2d 1278 (original jurisdiction assumed when petitioners challenged constitutionality of use tax codified at 68 0.8.Supp.1977, § 14022); City of Tulsa v. State of Oklahoma, 2001 OK 23, 20 P.3d 144 {original jurisdiction assumed when petitioner challenged the applicability of a certain statute to municipal sales and use tax revenues.) The immediacy for assuming original jurisdiction is present because the City of Oklahoma City and the City of Lawton currently collect sales taxes to support public schools in reliance upon the validity of § 22-159. See, eg., Phillips v. Oklahoma Tax Commission, 1978 OK 34, 577 P.2d 1278; State ex rel. Board of Commissioners of Harmon County v. Oklahoma Tax Commussion, 1942 OK 266, 127 P.2d 1052. Accordingly, we assume original jurisdiction over the instant case.

2 Petitioners seek declaratory relief to declare 11 0.$.2001, § 22-159 unconstitutional. Only in rare cireumstances does this Court assume original jurisdiction to grant a form of declaratory relief, Keating v. Johnson, 1996 OK 61, ¶ 12, 918 P.2d 51, 57, citing Ethics Commission v. Cullison, 1998 OK 87, ¶ 4, 850 P.2d 1069, 1072. The instant controversy does not constitute a rare cireumstance in which this Court needs to fashion a remedy or enlarge the seope of its extraordinary declaratory relief.

13 Petitioners also seek a writ of prohibition and/or of mandamus, to prohibit municipal officials from acting in accordance with the two municipal ordinances adopted in reliance on the statute or to mandate that they pursue a different course of action. Since we determine that the two ordinances are authorized, the issuance of a writ is unwarranted.

FACTS AND PROCEDURAL HISTORY

{4 Previously, Respondent City of Ard-more was dismissed pursuant to the application of Petitioner Jack Thompson. On November 6, 2001, we assumed original jurisdiction and denied a temporary injunction against Respondents and a stay of the November 13, 2001, election concerning Oklahoma City Ordinance No. 21,805. Now, we turn to the remaining issues Petitioners raise.

PUBLIC UTILITY BOND ACT

T5 Petitioners argue that § 22-159 is part of the Public Utility Bond Act and as such, Const. Art. 10, § 27(B) concerning revenue bonds applies and is violated by § 22-159. We disagree. Section 22-159 appears in the Oklahoma Statutes immediately after the Public Utility Bond Act and provides:

" § 22-159. Municipal support of public school systems
Municipalities may support any public school system located in whole or in part within the corporate limits of the municipality, including without limitation by the expenditure of municipal revenues for construction or improvement of public school facilities. In furtherance of municipal support for any public school system, as authorized by this section, the municipal governing body may take all actions necessary to effectuate such support."

The intent of the legislature controls when interpreting statutes. Tulsa County Deputy Sheriff's Fraternal Order of Police v. Board of County Commissioners of Tulsa County, 2000 OK 2, ¶ 10, 995 P.2d 1124, 1125, reh'g. denied, (June 30, 1998), appeal after remand, 2000 OK 2, 995 P.2d 1124. Such intent must be gleaned from the statute in view of its general purpose and object. TXO Production Corp. v. OklL Corp. Comm'n, 1992 OK 39, ¶ 7, 829 P.2d 964, 968. It is presumed that the law-making body has expressed its intent in a statute and that it intended what it so expressed. TXO Production Corp. v. Okl. Corp. Comm'n, 1992 OK 39, ¶ 7, 829 P.2d 964, 969.

17 In analyzing § 22-159, we determine its general purpose is to allow a municipality the option to support public school systems that are located, in whole or in part, within the corporate limits of the municipality. The statute's title, "Municipal support of public school systems," evidences the legislature's intent that this section apply to municipal support of public schools and not to public utilities or to revenue bonds issued to purchase or construct public utilities. The legislature enacted § 22-159 in 1999, pursuant to Section 5 of House Bill No. 1893, and identified this legislation as creating new law, not as amending the 1992 Bond Act. Accordingly, we hold that § 22-159 is not a part of the Public Utility Bond Act and, of necessity, Const. Art. 10, § 27(B) concerning revenue bonds is inapplicable to § 22-159.

CONSTITUTIONAL ISSUES

Sources of Public School Funding

18 Petitioners contend 11 0.8.2001, § 22-159 is unconstitutional in that it violates Art. 18, § 1; Art. 5, § 46 and Art. 21, § 1 of the Oklahoma Constitution.

"In determining the constitutionality of the subject Act, this court is guided in its consideration thereof by well established general precedents. In construing the constitutionality of a statute, the Supreme Court is not authorized to consider its propriety, desirability, wisdom, or its practicability as a working proposition. Those questions are clearly and definitely established by our fundamental law to a certainty as functions of the legislative department of government. The function of the court is clearly limited to the determination of the validity or invalidity of the act. There is a presumption that the Act is constitutional."

Application of Oklahoma Capitol Improvement Auth., 1960 OK 207, ¶¶ 8, 9, 855 P.2d 1028, 1081.

T9 Petitioners argue Const. Art. 13, § 1 limits funding of public school systems to state funds. As such, they reason that 11 00.98.2001, § 22-159 is unconstitutional because it provides for municipal support of public school systems. We disagree. Const. Art. 18, § 1 neither discusses nor limits funding sources for public school districts to state funds. If two constructions are possible, one which would uphold the statute and one which would strike it down, it is our duty to apply the constitutional construction. City of Oklahoma City v. Oklahoma Tax Commission, 1990 OK 27, ¶ 10, 789 P.2d 1287, 1292, citing in footnote 11, "State v. Goforth, 772 P.2d 911, 914 (Okla.1989); Earl v. Tulsa County Dist. Court, 606 P.2d 545, 547-48 (Okla.1979)." Petitioners' construction would preclude the well-established procedure whereby counties levy ad valorem taxes to support public school districts pursuant to Const. Art. 10, § 9. Indeed, § 9(b) requires counties to support public school districts. Therefore, Petitioners' argument that Art. 18, § 1 limits funding of public school systems to state funds must fail.

General vs. Special Law

$10 Petitioners contend 11 0.8. 2001, § 22-159 constitutes a special law and violates Const. Art. 5, § 46 and § 59. Our analysis does not reach the provision contained in § 59 unless we first find that § 22-159 is a special law. In determining whether § 22-159 is a general or special law, we note that. it is a general law if it "relates to persons or things as a class rather than relating to particular persons or things." Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, ¶ 5, 5 P.3d 594, 597, citing Reynolds v. Porter, 1988 OK 88, 114, 760 P.2d 816, 822, Guthrie Daily Leader v. Cameron, 3 Okla. 677, 41 P. 635, 639 (1895). It is a special law if "a part of the entire class of similarly affected persons is separated for different treatment." Grant, 2000 OK 41, 5, 5 P.3d 594 at 597, citing Reynolds, 1988 OK 88, ¶ 14, 760 P.2d 816 at 822. We held in Anderson v. Walker, 1958 OK 297, ¶ 16, 833 P.2d 570, 574 that a law may be general and have a local application or apply to a designated class if it operates equally upon all the subjects within the class for which it was adopted. Section 22-159 concerns municipalities in the state of Oklahoma. It is a general law because no part of the class of municipalities is separated for different treatment, and it relates to all municipalities in the state. Since we determine that § 22-159 is a general law, we need not analyze the statute in the context of Const. Art. 5, § 59 because this provision pertains to special laws. Reynolds v. Porter, 1988 OK 88, ¶ 14, 760 P.2d 816, 822-823.

T11 This statute neither mandates nor precludes municipalities from supporting public school systems located within their corporate limits. Neither does it mandate nor does it preclude municipalities from expending municipal revenues for construction or improvement of public school facilities. Indeed, the statute is permissive in character because the definitive word chosen by the legislature is "may" instead of "shall." "May" denotes a permissive statute. "Shall" signifies a mandatory directive or command. See, e.g., Keating v. Edmondson, 2001 OK 110, ¶ 13, 37 P.3d 882, 888; Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 11, 33 P.3d 302, 307. The statute affords all municipalities in the state of Oklahoma an option to support public school districts located therein, and this option applies equally to each municipality. Whether or not all municipalities choose to exercise this option is of no consequence in our analysis since the statute is general, applies to a designated class, (to-wit: municipalities in the state of Oklahoma,) and operates equally upon all the members of the class (municipalities in the state of Oklahoma) for which it was adopted. Accordingly, § 22-159 does not violate Const. Art. 5, § 46 or Const. Art:5, § 59.

{12 We next address the issue of whether Oklahoma City municipal ordinance No. 21,805 and the City of Lawton municipal ordinance No. 99-29 are general or special laws because of the method in which the ordinances utilize sales tax revenues.

"The decisive question for our determination is whether the act in question was a general law as distinguished from a local or special law. In deciding this question we must look to see if there was a proper and legitimate classification and that such classification was not arbitrary or capricious, bearing a reasonable relationship to the object to be accomplished."

Sanches v. Melvin, 1966 OK 116, ¶ 14, 418 P.2d 639, 641.

{13 Oklahoma City municipal ordinance No. 21,805 apportions sales tax revenues to support public school districts based on the number of students in each school district who live within Oklahoma City and based upon need. Independent District No. 89 is comprised solely of students who live in Oklahoma City, whereas the other school districts are comprised of students who live in Oklahoma City and in surrounding suburban areas. The Oklahoma City Metropolitan Area Public Schools Trust (OCMAPST) will act as a conduit for revenues and 70% thereof will go to Independent District No. 89 while 80% will go to twenty-three suburban districts. Independent District No. 89 has ill-equipped and dilapidated school buildings, and thus greater need than suburban districts that have newer, better-equipped facilities. The statute establishes a legitimate and reasonable classification of municipalities statewide that share a situation with a rational relationship to a legitimate legislative objective, to-wit: public school districts that agree to an offer of support from the sales tax revenues collected by the municipalities in which they are located, (either in whole or in part.)

114 Similarly, Lawton municipal ordinance No. 99-29, approved by the citizens of Lawton in a November 9, 1999, election, establishes a sales tax to provide for certain capital improvements on the basis of need, including construction of a new Central Junior High School, (begun September 7, 2000,) to replace a dilapidated facility.

115 The right to free public schools does not guarantee, on its face, equal expenditures per pupil. Fair School Finance Council v. State, 1987 OK 114, ¶ 52, 746 P.2d 1135, 1150 (wherein we used a rational basis standard to evaluate the classification used for expenditures per pupil.) We hold that a rational basis exists for the distinction made in these ordinances regarding which public school districts will receive the sales tax revenues. The apportionment method, (or "classification," utilized by the City of Oklahoma City and the City of Lawton is not arbitrary or capricious, but is reasonable, proper and legitimate. Accordingly, we determine that Oklahoma City municipal ordinance No. 21,805 and Lawton municipal ordinance No. 99-29 are general in nature and do not violate Const. Art. 5, § 46. Since we determine that these ordinances are general in nature, we need not analyze the ordinances in the context of Const. Art. 5, § 59 because this provision pertains to special laws. Reynolds v. Porter, 1988 OK 88, ¶ 14, 760 P.2d 816, 822.

"Educational Institutions"

116 Petitioners' third constitutional argument is that public schools are "educational institutions" under Const. Art. 21, § 1 and thus only the State of Oklahoma can support them. We disagree. Const.Art. 10, § 26 concerns indebtedness of political subdivisions and clearly includes school districts as political subdivisions. Although 11 0.9.2001, § 22-159 refers to school systems as opposed to school districts, we determine that the kind of "educational institution" intended by the legislature to be referenced in Const.Art. 21, § 1 is that of a state institution such as a mental health institution, school for the disabled or a center of higher education. These are the types of institutions we previously have recognized as being referenced by Const.Art. 21, § 1. See, eg., St. Louis-San Francisco Ry. Co. v. Morris, 1980 OK 247, 288 P. 306 (state institution for treatment of tuberculosis); Battles v. State ex rel. Oklahoma Commission for Crippled Children, 1951 OK 818, 206 Okla. 444, 244 P.2d 320 (University Hospital); Murrow Indian Orphans Home v. Childers, 1946 OK 187, 197 Okla. 249, 171 P.2d 600 (Indian Orphans Home); Montgomery v. State Industrial Commission, 1942 OK 149, 124 P.2d 726 (state hospital for the insane). Accordingly, we hold that Const. Art. 21, § 1 is inapplicable to 11 0.8.2001, § 22-159, because public school districts are not state "educational institutions."

AUTHORIZATION TO LEVY SALES TAXES

117 Petitioners argue that § 22-159 does not authorize municipalities to levy sales takes to support public schools, because it does not explicitly reference or authorize a sales tax. We disagree. Adequately funded public public schools benefit the entire community in which they are located. As such, they serve a public purpose. Such public schools promote the general welfare, as well as economic development, economic security and prosperity for a municipality. See, eg., State ex rel. Brown v. City of Warr Acres, 1997 OK 117, ¶ 20, 946 P.2d 1140, 1145 (wherein we held "public purpose" embodies a proposal that promotes the general welfare, economic security and prosperity of the city and its citizens); Burkhardt v. City of Enid, 1989 OK 45, ¶ 23, 771 P.2d 608, 614 (wherein we. held "economic development is a public purpose for which a municipality may expend public funds," and determined an institution of higher education provides a public benefit that fosters economic development in a community.) Therefore, we hold that in pursuit of a lawfal public function, the City of Oklahoma City and the City of Lawton enacted the ordinances at issue herein. We further hold that 11 00.98.2001, § 22-159 allows municipalities the option to levy a sales tax for the legitimate public purpose of adequately financing public school systems located in whole or in part within the municipality's corporate limits. A municipality's economic development plan that encompasses improvement of the public school districts located within that municipality serves a legitimate public purpose as contemplated by Const. Art.10, § 14.

€18 "Support," as used in § 22-159, implies financial support, which necessarily implies the power to levy taxes. Therefore, we determine that a sales tax levied by a municipality to support public school districts within its corporate boundary pursuant to 11 ©.8.2001, § 22-159 is permitted under Const. Art. 10, § 26.

Oklahoma City Metropolitan Area Public Schools Trust

119 The City of Oklahoma City has created the Oklahoma City Metropolitan Area Public Schools Trust (OCMAPST) to manage the sales tax revenues collected pursuant to ordinance no. 21,805 and is the beneficiary thereof. Petitioners argue that the OCMAPST attempts to cireumvent Cont. Art. 10, § 26, which limits the indebtedness a city or school district may incur in any calendar year. We disagree. Any indebtedness payable solely from the trust estate and its revenues, incurred by "trustees of trusts for the furtherance of public functions," is constitutional. Morris v. City of Oklahoma City, 1956 OK 202, ¶ 23, 299 P.2d 181, 186-187. We stated therein, "... the fact that such trustees also are designated as regularly constituted authorities of a beneficiary governmental subdivision does not violate sections 26 and 27 of Article X of the Constitution." Morris v. City of Oklahoma City, 1956 OK 202, ¶ 23, 299 P.2d 131, 186-187, citing "Board of County Commissioners of Oklahoma County v. Warram, 285 P.2d 1034, 1085," syllabus 1 8, 7.

120 The plaintiff in Morris advanced an argument similar to Petitioners' herein, to-wit: that Trustees of a public charitable trust are "Agents of the State" and that since the indebtedness of the Trustees is of the type prohibited by Sections 28, 25, 26 and 27 of Art. 10, § 26 of the Constitution, they are void and the Public Trust Law purporting to authorize such indebtedness is unconstitutional. However, we held the contrary, in Morris and do so again, today.

21 Accordingly, we reiterate our previous conclusion in prior cases that a public trust such as OCMAPST does not violate Art. 10, § 26. Since we determine the actions of the City of Oklahoma City pursuant to § 22-159 are in pursuit of a lawful public function, then the actions of OCMAPST, of necessity, also must be lawful.

CONCLUSION

1] 22 We hold that 11 0.8.2001, § 22-159 is a general law and is not a part of the Public Utility Bond Act. We determine 11 00.98.2001, § 22-159 to be constitutional, and therefore hold that the City of Oklahoma City municipal ordinance No. 21,805 and the City of Lawton municipal ordinance No. 99-29 are authorized sales tax proposals that rely on a constitutional statute and serve a valid public purpose. We conclude that the Oklahoma City Metropolitan Area Public Schools Trust is a lawful entity which performs a lawful and constitutional purpose for the City of Oklahoma City. Finally, we determine that all of Petitioners' arguments lack merit.

ORIGINAL JURISDICTION ASSUMED; DECLARATORY RELIEF DENIED; WRITS OF MANDAMUS AND PROHIBITION DENIED.

Coneur: HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, SUMMERS (by separate writing), BOUDREAU, JJ.

Concurs in result: KAUGER (by separate writing) (joins SUMMERS, J), J.

Dissents: OPALA, (by separate Writing) J.

KAUGER, J.,

concurring in result.

1 1 I agree with the majority that a municipal vote of the public in support of public schools pursuant to 11 0.S$.2001 § 22-159 should be upheld. I write separately to emphasize that because the levy has been voted upon by the people, it does not present the constitutional debt limitations problem asso-clated with our decision in Oklahoma City Urban Renewal Auth. v. Medical Technology & Research Auth. of Oklahoma, 2000 OK 23, [ 13, 4 P.3d 677.

12 In Medical Technology, we considered the nature and constitutionality of tax inerement financing utilizing ad valorem financing. In doing so, we determined that although the taxing scheme was not facially invalid, it was subject to voter approval under the Okla. Const. art. 10, § 26. Here, the step missing in Medical Technology is supplied-the election process has taken place and the voters have spoken in favor of supporting public schools.

SUMMERS, J.,

Concurring and joined by KAUGER, J.

11 I concur in the Court's opinion with these additional observations.

12 Section 22-159 states that municipalities may support a public school "by the expenditure of municipal revenues for construction or improvement of public school facilities." Municipal sales tax revenue is one type of municipal revenue. See, e.g., 11 O.S.Supp.1992 § 22-154, (sales tax is a municipal tax revenue that may be used as payment or security for municipal utility revenue obligations). The Legislature may confer upon a municipality the power to assess and collect a sales tax for the purpose of the municipality. Okla. Const. Art. 10 § 20.

{ 3 The municipal tax must be imposed by a general law and for a public purpose. Okla. Const. Art. 10 § 14, State ex rel. Brown v. City of Warr Acres, 1997 OK 117, 946 P.2d 1140; Burkhardt v. City of Enid, 1989 OK 45, 771 P.2d 608, 610-611. The statute at issue here is applicable to all school districts, and is thus a general law. Stanolind Pipe Line Co. v. Tulsa County Excise Bd., 1988 OK 248, 80 P.2d 316, 318. The maintenance of a free public school is a duty placed upon the Legislature. Okla. Const. Art. 18 § 1. Tax revenue used to maintain a free public school is a tax for a public purpose.

€ 4 The Legislature may not enact statutes that compel a political subdivision to expend its tax revenues for a state function when the political subdivision is funded from ad valo-rem taxes. State ex rel. Jordan v. City of Bethany, 1989 OK 30, 769 P.2d 164; State ex rel. Dept. of Human Services v. Malibie, 1981 OK 18, 630 P.2d 810. However, the Legislature may provide that a municipality may, if it so decides, expend funds for a school district. In 1910 we made the following observation:

What, therefore, the Wetmore Case and the Law Case decided was that the erection of schoolhouses within the corporate limits of a municipality was justly to be regarded as a municipal affair, and that the city, therefore, as such, could create a bonded indebtedness for such like purposes, even though power to do the same thing was, under the general school system of the state, vested in a school district, which, while occupying the same territory as that of the city, was still in point of law a distinct corporate entity. It follows, therefore, that the declaration of this court that the issuing of bonds for the building of schoolhouses by a city is a municipal affair constitutes in no sense a negation of the fact that another corporate entity-the school district-may, under the general school system of the state, do the same thing for the same purpose. Moreover, it should be finally emphasized that the power of a municipality in this regard can only run current with, and never counter to, the general laws of the state touching the common school system. To such general laws, if conflict arises, all municipal charters must be subservient.
As the Legislature of this state did not see fit to confer on cities of the class entitled to frame charters for their own government any power to legislate on matters pertaining to the public school system of the state, it follows that the attempt on the part of the city of Ard-more by its charter to vest such authority in another board than that provided by the general law must fail.

Board of Education of City of Ardmore v. State, 1910 OK 118, 109 P. 568, 566-567, (emphasis added).

We observed in this opinion that both a sehool board and a municipality did, in theory, possess concurrent power, and could provide funds to maintain a school, but that as of 1910 the Oklahoma Legislature had not granted that power to municipalities such as Ardmore. The Legislature has now done so in § 22-159, and a municipality exercising its discretion to expend municipal funds for a school district does not violate the Oklahoma Constitution.

[5 A tax is not a debt. City of Sapulpa v. Land, 1924 OK 92, 228 P. 640, 644. The amount of debt a school district creates is based upon a percentage of the valuation of the taxable property therein. Okla. Const. Art. 10 § 26. Nothing before us suggests that any school district has exceeded this constitutional limitation.

[ 6 A governmental subdivision may be the beneficiary of a public trust. Morris v. City of Oklahoma City, 1956 OK 202, 299 P.2d 131. In Arthur v. City of Stillwater, 1980 OK 64, 611 P.2d 637, we discussed a sales tax to be collected by a municipality for the purpose of a public trust that would issue bonds and then use the tax revenue to pay its obligations. Although we explained that a statute required the tax revenue to be placed in the municipality's general revenue fund and then appropriated for the trust, as opposed to going to the trust as an unappropriated amount, we rejected the claim that the trust indebtedness created by the bonds violated Article 10 § 26.of the Oklahoma Constitution. Id. 611 P.2d at 641-642.

17 In sum, nothing in the Oklahoma Constitution prohibits the Legislature from allowing a municipality to raise local tax revenue for the benefit of a school or a municipal improvement trust that then acts to improve a school within that municipality. None of the challenges in this case show either a tax or a public indebtedness that is unconstitutional.

OPALA, J.,

dissenting.

T1 I dissent from the court's pronouncement, which places its unqualified imprimatur upon the taxation regime authorized by the provisions of 11 0.$.2001 $ 22-159. The statute under today's scrutiny clearly violates the constitutional prohibition against special laws regulating the affairs of school districts. This is so because it facially fails equally to affect all school districts so as to operate uniformly throughout the state; rather, it sets apart for favorable treatment only a subclass composed of those districts within whose territory lies, in whole or in part, a municipality which would opt to levy a tax and share its proceeds. Art. 5 § 46, Okl. Const.

I

THE LEGISLATION IN CONTROVERSY

12 Section 22-159 of the Oklahoma Municipal Utility Revenue Bond Act allows a municipality to support any public school system located either in whole or in part within its corporate limits by raising revenue to be provided for the construction or improvement of public school facilities. Acting under the authority of this legislation, two cities, Oklahoma City and Lawton, both respondents herein, have passed ordinances for the levy of takes to support public schools lying (entirely or partially) within the boundaries of the two municipalities.

II

THE SEARCH FOR CONSTITUTIONAL INFIRMITIES PRESENT IN THIS CONTROVERSY IS TO BE FOCUSED AND MUST CONCENTRATE UPON THE STANDARDS OF ART. 5 § 46, OKL.CONST.

11 3 The court must test the § 22-159 taxation regime's constitutional orthodoxy by the pertinent standards prescribed in Art. 5 § 46, Okl. Const. That section's terms absolutely and unequivocally invalidate special (or local) laws on any of the 28 subjects which stand included in the § 46 litany of prohibitions. A subject that is listed in § 46 may not be disuniformly dealt with by any enactment. The terms of § 22-159 clearly offend the § 46 interdiction of special (or local) laws on one of the listed subjects-that of regulating the affairs of school districts. The legislature may not deal with any aspect of public school management-a subject which clearly embraces the district's financing function-other than by law whose application will have like impact on each district.

4 Today's pronouncement does not reach the critical and dispositive issue before the court. Focusing marrowly and exclusively on § 22-159's effect upon municipalities, the court ignores the cited statute's plainly disuniform impact on school districts, whose regulation appears in the litany of subjects on which no special law is authorized.

15 A canonical § 46 analysis requires that the legislation to be tested for orthodoxy conform to the fundamental law's symmetry and uniformity mandate upon every prohibited subject. An enactment which meets the § 46 test for one subject of the multiple prohibitions but disuniformly impacts another cannot pass constitutional muster.

III

THE ASYMMETRY CREATED BY TODAY'S PRONOUNCEMENT

16 Section 46 is the Constitution's command for evenhanded statewide application of laws on certain enumerated subjects. That application allows no subclass to be left at a disadvantage. The § 46 symmetry and uniformity norms require that legislation dealing with revenue sources for schools impact all school districts alike and afford each of them a meaningful opportunity to share in the capture of revenue authorized for tapping.

17 Section 22-159's formula for access to the there-authorized revenue stream is based on two factors: (a) a school district's geographical characteristics (to be evaluated by the municipal-subdivision presence within the district's territorial boundaries) and (b) the affected municipality's creation of the revenue source by imposition of a tax. These characteristics are facially incapable of implementation by uniform, evenhanded access to the revenue source throughout the state. Nor do these characteristics bear any rational relation to some legislatively declared or textually demonstrable need for revenue. The taxation regime prescribed by § 22-159 creates a built-in mechanism of impermissible asymmetry for school district financing function by patently excluding from its revenue stream two disadvantaged subclasses: (a) purely rural school districts those which have no municipal territories within their boundaries and (b) districts in which, although municipalities are situated, in whole or in part, no fax was levied to provide a revenue stream.

T8 Because § 22-159 can benefit only less than the entire statewide class of all school districts, it is underinclusive and hence "special. A statute collides with the § 46 symmetry requirements when it targets for different treatment less than a whole class embraced within one of that seetion's prohibited subjects.

No Explicitly Prohibited § 46 Subject May Be Tested By § 59 Standards

T9 Conformity to the standards of Art. 5 § 59, Ok. Const., presents a legal issue entirely unrelated to the § 46 uniformity mandate. Tests used for measuring a law's validity under the standards of § 46 are dis-tinet from those for gauging a statute's § 59 orthodoxy. While the former prohibits the passage of any special (or local) law on a variety of textually identified subjects, regardless of whether a suitable general law could or could not have been crafted, the latter section merely calls for statutes to be cast in the form of general laws which would appear to have uniform application. Within the meaning of § 59 a special law is considered permissible if a general law could not be fitted. Not so under the standards of § 46. That section's mandate is absolute, unequivocal and unqualified; it defies testing by the standards of § 59. If the founding drafters did not intend to set aside the named § 46 subjects for much tougher serutiny, that section would have been totally redundant. Without its inclusion, § 59 would have covered every subject of legislation, including those that are now singled out by their listing in § 46.

110 Our own jurisprudence, no less than the legislature's enactments, must faithfully conform to the fundamental law's prohibition against disuniform (or nonuniform) laws on prohibited subjects.

IV

SUMMARY

{11 A prohibited subject in the § 46 litany may not be disuniformly addressed within any legislative enactment. Section 46 absolutely, unqualifiedly and unequivocally invalidates all local or special legislation on prohibited subjects. Today's pronouncement, which passes § 22-159 for § 46 orthodoxy, confines the statute's constitutional testing to the law's effect on "municipalities," but does not extend its probe to gauging the law's effect on regulation of school districts' affairs. The court's methodology entirely erases from the list of subjects prohibited by § 46 the category most critical for application to this case-that of regulating school district affairs.

1 12 If I alone were testing today the § 46 conformity of § 22-159's taxation regime, I would conclude that the cited statute offends that constitutional provision's mandated norms of uniformity, symmetry and evenhanded treatment. This is so because § 22-159 clearly runs counter to the constitutional prohibition against those laws which deal with the affairs of school districts by regulating their financing in a manner that does not uniformly impact all the districts.

[ 13 I would today pronounce a death sentence for the provisions of § 22-159. The section's demise should be made coincidental with the date of the court's mandate in this cause. Fundamental-law jurisprudence of Oklahoma (and that of the U.S.) teaches that judicial condemnation of an unconstitutional tax measure need not be given a fully retrospective (or common-law) sweep; it may be accorded prospective application by whose terms revenue captured in advance of invalidation could be retained.

      . The Public Utility Bond Act, enacted in 1992, effective July 1, 1992, and codified at 11 O.S. 2001, §§ 22-150 et seq., references nine sections, to-wit: §§ 22-150, 22-151, 22-152, 22-153, 22-154, 22-155, 22-156, 22-157 and 22-158. Confusion results from a scrivner's error added by West Publishing in the footnote of § 22-150 that incorrectly identifies § 22-159 as part of the 1992 Bond Act.

      . Article 13, § 1 states:
      " § 1. Establishment and maintenance of public schools
      The Legislature shall establish and maintain a system of free public schools wherein all the children of the State may be educated."

      . Const. Art. 5, § 46 and § 59 state in pertinent part:
      " § 46. Local and special laws on certain subjects prohibited
      The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
      . Regulating the management of public schools, the building or repairing of school houses, and the raising of money for such purposes;"
      " § 59. Uniform operation of general laws-Special laws when general law applicable
      Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted."

      . Const. Art. 21, Const.Art. 21, § 1 provides:
      "§ 1. Establishment and support
      Educational, reformatory, and penal institutions and those for the benefit of the insane, blind, deaf, and mute, and such other institutions as the public good may require, shall be established and supported by the State in such manner as may be prescribed by law."

      . Const. Art. 26, § 26 provides in pertinent part:
      " § 26. Indebtedness of political subdivisions-Assent of voters-Annual tax-Computation of amount of indebtedness
      (a) Except as herein otherwise provided, no county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, .... Provided, that if a school district has an absolute need therefore, ....

      . "Such indebtedness is not unconstitutional." Morris v. City of Oklahoma City, 1956 OK 202, 23, 299 P.2d 131, 136 (1956).
      "Trusts for the benefit of governmental entities are 'charitable trusts'; and the common law recognizes that the purposes for which such trusts may be established include a broad field of objectives for the benefit of a large class of the public or for lessening the burdens of government."
      Morris v. City of Oklahoma City, 1956 OK 202, ¶ 23, 299 P.2d 131, 136 (1955), citing Board of County Commissioners of Oklahoma County v. Warram, 285 P.2d 1034, 1955 OK 198, 10, (syllabus 13), 285 P.2d 1034, 1035 (syllabus, T3).

      . Title 11 0.$.2001 § 22-159 provides:
      Municipalities may support any public school system located in whole or in part within the corporate limits of the municipality, including without limitation by the expenditure of municipal revenues for construction or improvement of public school facilities. In furtherance of municipal support for any public school system, as authorized by this section, the municipal governing body may take all actions necessary to effectuate such support.".

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

      . Okla. Const. Art. 10 § 20:
      The Legislature shall not impose taxes for the purpose of any county, city, town, or other mu-picipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes.

      . Okla. Const. Art. 13 § 1:
      The Legislature shall establish and maintain a system of free public schools wherein all children of the State may be educated.

      . The terms of 11 0.$.2001 § 22-159 are:
      Municipalities may support any public school system located in whole or in part within the corporate limits of the municipality, including without limitation by the expenditure of municipal revenues for construction or improvement of public school facilities. In furtherance of municipal support for any public school system, as authorized by this section, the municipal governing body may take all actions necessary to effectuate such support.

      . The pertinent terms of Art. 5 § 46, Okl. Const. are:
      The Legislature shall not ... special law ... pass any ...
      *o# &
      Regulating the affairs of counties, cities, towns, wards, or school districts. . ..
      (emphasis added).

      . 11 § 22-150 et seq.

      . For the terms of 11 0.S.2001 § 22-159 see supra note 1.

      . For the pertinent terms of Art. 5 § 46, Okl. Const., see supra note 2.

      . Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, 822; State of Oklahoma ex rel. Nesbitt v. District Court of Mayes County, 1967 OK 228, 440 P.2d 700, 705-706 (noting that Art. 5 § 46 prohibits special or local laws prescribing the powers and duties of county officers, the court held that nothing in Oklahoma's fundamental law authorizes the legislature to impose upon an arbitrarily selected group of county officials duties which do not stand imposed upon like officials in other counties of the state); Tulsa Co. F.O.P., Lodge No. 188 v. Board of County Commissioners of Tulsa Co., 2000 OK 2, ¶ 10, 995 P.2d 1124, 1135 (Opala, J., dissenting); Nelson v. Nelson, 1998 OK 10, 954 P.2d 1219, 1232 (Opala, J., dissenting).

      . Special laws apply to less than an entire class of similarly situated persons; those who are singled out by the law receive treatment which differs from that accorded by the remainder of the class. Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, 822; Maule v. Independent School Dist. No. 9, 1985 OK 110, ¶ 12, 714 P.2d 198, 203 n. 30; Great Plains Federal S & L Assn. v. Dabney, 1993 OK 4, ¶ 2, 846 P.2d 1088, 1095-96 (Opala, J., concurring).

      . Maule, supra note 7 at 203-204 (citing Ind. School Dist. No. 89 of Okla. Co. v. Okl. City Fed. of Tchrs., 1980 OK 89, ¶ 1, 612 P.2d 719, 724-725 (Opala, J., dissenting)); Reynolds, supra note 7 at 822.

      . In Fair School Finance Council of Oklahoma, Inc. v. State, 1987 OK 114, ¶ 64, 746 P.2d 1135, 1150, the court holds that although the state is not under a mandate to provide equal per-pupil funding, it does stand under a constitutional command to treat all districts equally for access to existing revenue sources.

      . When a statute's sweep embraces less than a whole class, it is underinclusive in the § 46 sense. For a detailed explanation of the latter § 46 classification flaw see Reynolds, supra note 7 at 822.

      . The terms of Art. 5 § 59, Okl. Const., are:
      Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.

      . For the terms of Art. 5 § 46, Okl. Const., see supra note 2.

      . Reynolds, supra note 7 at 822; Nesbitt, supra note 10 at 703 syl. 1.

      . When testing a statute's constitutional orthodoxy by the standards prescribed by § 59, a three-prong inquiry is to be made: (1) Is the statute a special or general law? (2) If the act is a special law, could a general law be made applicable? and (3) If a general law may not be made applicable, does the statute pass muster as a permissible special law? Ross v. Peters, 1993 OK 8, 846 P.2d 1107, 1119; Reynolds, supra note 7 at 822.

      . The distinct characteristics of § 46, which set it far apart from § 59, are eloquently taught by two early post-statehood decisions. Their reading is a must for all those who wish to claim familiarity with the subject. Chickasha Cotton Oil Co. v. Lamb & Tyner, 1911 OK 68, ¶¶ 4-12, 114 P. 333, 334-36; Diehl v. Crump, 1919 OK 62, 1 6, 179 P. 4, 6.

      . Maule, supra note 7 at 203-204 (citing Ind. Schl. Dist. No. 89, at 725-26 (Opala, J., dissenting)); Reynolds, supra note 7 at 822.

      . Although directed to the legislature, the terms of Art. 5 §§ 46 and 59 are equally binding on the courts. Reynolds, supra note 7 at 822.

      . This appears to be sanctioned by First of McAlester Corp. v. Oklahoma Tax Com'n, 1985 OK 52, ¶ 35, 709 P.2d 1026, 1036, as well as by the U.S. Constitution. See Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364-365, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932); Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 LEd.2d 647 (1969).


author: BOUDREAU, Justice:

text:
    2002 OK 50
    COMPUTER PUBLICATIONS, INC., an Oklahoma Corporation, Plaintiff/ Appellant, v. Alysia Beth WELTON, Defendant and Third-Party Plaintiff/Appellee, v. Cameron Craig, Third-Party Defendant/Appellant.
    No. 94,983.
    Supreme Court of Oklahoma.
    June 11, 2002.

      B. Gore Gaines, Oklahoma City, OK, for Appellants.
    Joseph P. Farris, Paula J. Quillin, Tulsa, OK, for Appellee.
   BOUDREAU, Justice:

1 Cameron Craig (Craig) owns and operates a small business, Computer Publications, Inc. (CPI). CPI is in the business of developing and maintaining computer software. In May of 1990, CPI hired Alysia Beth Wel-ton (Welton). She was 22 years old, single and had recently graduated from college. Craig was in his early 40's, married and had children.

12 Within Welton's first year at CPI, around May of 1991, Craig and Welton began a consensual sexual relationship. They continued this relationship for six years with sporadic "ups and downs" until Welton finally ended the relationship in May of 1997. Craig did not want to end the relationship and tried to get Welton to resume it. She would not. Finally, after resisting his overtures for another five months, Welton quit her job at CPI without having another job. A week or two later, one of CPTI's customers called Welton at her home, after learning from CPI that she was no longer at CPI, to have her perform some work on an hourly basis on the same source code that Welton had serviced while at CPI.

T3 Three months later, CPI sued Welton for performing this software-related work, alleging that she misappropriated CPI's trade secrets/source code. CPI also asserted claims for tortious interference with contractual and business relations and violation of the Deceptive Trade Practices Act, and sought both money damages and injunctive relief. Welton responded with a third-party claim against Craig, individually, for intentional infliction of emotional distress, and a counterclaim against CPI for bad faith allegation of trade secret misappropriation. She also asserted claims for abuse of process and tortious interference with contractual and business relations and sought both money damages and injunctive relief.

I 4 In pre-trial rulings the trial court disposed of all of the parties' claims except two: (1) Welton's third-party claim against Craig for intentional infliction of emotional distress, to be tried to a jury, and (2) Welton's counterclaim against CPI for bad faith allegation of trade secret misappropriation, to be tried to the court.

T5 From February 22-25, 2000, the trial court conducted the jury trial on Welton's third-party claim against Craig for intentional infliction of emotional distress and at the conclusion of the trial entered judgment on the jury verdict in favor of Welton, awarding her $50,000 compensatory damages and $1,000 punitive damages, together with $9,442.18 in pre-judgment interest. The trial court also awarded Welton $10,107.00 in sanctions against CPI and Craig for abuse of the discovery process. Finally, on May 7, 2000, following a bench trial on Welton's counterclaim against CPI for bad faith allegation of trade secret misappropriation, the trial court entered judgment in favor of Wel-ton in the amount of $15,815.87. Both CPI and Craig appealed. The Court of Civil Appeals affirmed the judgment in all respects except one. It reversed the judgment on Welton's counterclaim for intentional infliction of emotional distress, concluding that Craig's conduct was not sufficiently extreme and outrageous to warrant submission of that claim to the jury. Welton sought certiorari which we previously granted.

STANDARD OF REVIEW

16 We review the denial of Craig's motion for directed verdict de novo. Cities Service Co. v. Gulf Oil Corp., 1999 OK 14, 11, 980 P.2d 116, 124. Regarding as true all evidence favorable to the non-moving party and all reasonable inferences drawn therefrom, and disregarding all evidence favorable to the moving party, we must affirm the denial unless there is an entire absence of proof on a material issue. Franklin v. Toal, 2000 OK 79, 118, 19 P.3d 834, 837; 12 O.S. 2001 § 698. Similarly, considering all the evidence tending to support the verdict together with every reasonable inference deducible therefrom, and rejecting all evidence adduced by the adverse party which does not support the verdict, we must affirm a jury verdict if there is any competent evidence reasonably tending to support it. Franklin, 2000 OK 79, ¶ 12, 19 P.3d at 837.

THE TORT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

7 Oklahoma first adopted the tort of intentional infliction of emotional distress, also known as the tort of outrage, in Breeden v. League Services Corp., 1978 OK 27, 575 P.2d 1374. The tort is governed by the narrow standards of the Restatement (See-ond) of Torts § 46. Id. The tort requires evidence of extreme and outrageous conduct coupled with severe emotional distress. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 45, 958 P.2d 128, 149. To recover damages for intentional infliction of emotional distress, a plaintiff must prove: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (8) the defendant's conduct caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe.

T8 The trial court acts as a gatekeeper regarding the outrageousness of the defendant's conduct and the severity of the plaintiff's distress. Miller v. Miller, 1998 OK 24, ¶ 34, 956 P.2d 887, 901. The roles of the trial court and the jury are well established:

The ‘court, in the first instance, must determine whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery or whether it is necessarily so. Where, under the facts before the court, reasonable persons may differ, it is for the jury, subject to the control of the court, to determine whether the conduct in any given case has been significantly extreme and outrageous to result in liability. Likewise, it is for the court to determine, in the first instance, whether based upon the evidence presented, severe emotional distress can be found. It is for the jury to determine whether, on the evidence, severe emotional distress in fact existed.

Breeden, 1978 OK 27, 575 P.2d at 1377-78 (emphasis in original, footnotes omitted). The trial court's gatekeeper role with regard to the second and fourth elements of the tort of intentional infliction of emotional distress ensures that only valid claims reach the jury under the appropriate legal standards.

19 The second element of this tort requires proof that the defendant's conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and that such conduct is regarded as atrocious and utterly intolerable in a civilized community. Kraszsewski v. Baptist Medical Center of Oklahoma, Inc., 1996 OK 141, 916 P.2d 241, 248. In general, a plaintiff must prove that the recitation of defendant's conduct to an average member of the community would arouse the listener's resentment against the defendant and would lead the listener to exclaim "Outrageous!" Id.

110 In this case, regarding as true all evidence and reasonable inferences favorable to Welton and disregarding all evidence favorable to Craig, the record shows that Craig harassed Welton virtually non-stop after she quit her job with CPI on October 31, 1997. Craig wanted Welton to come back to work for him and wanted her to resume their intimate relationship. He harassed her for two years, through at least November of 1999. He did not stop harassing her after CPI sued her in February of 1998, after the trial court ruled against CPI on its motion for temporary restraining order in March of 1998, after Welton became engaged to Keith Dixon in June of 1998, after Welton married Keith Dixon in September of 1998, after the trial court ruled against CPI and Craig on all of their claims in April of 1999, or after the attorney for CPI and Craig took Welton's deposition in May of 1999. In those two years Craig repeatedly attempted to contact Welton. : He called her land-line phones, called her cell-phones, left voice mail on her phones, sent e-mails, mailed letters and cards and sent flowers and gifts. In two of his letters he asked her to contact his psychologist. He found out where she worked and twice dropped letters through the sun-roof of her car while she was at work. He called her friends and asked them to intervene on his behalf. He drove slowly past her house. He drove through her neighborhood. He showed up at restaurants where she went with friends. Welton not only did not respond to Craig's attempts to contact her, she took steps to avoid him. She changed her phone numbers. She moved out of her apartment before her lease ended and lived for two months with a friend. None of this worked, as Craig was able to learn her new phone numbers, learn her friend's address, learn her new e-mail addresses and learn where she worked.

112 We do not find an entire absence of proof as to whether Craig's conduct was sufficiently extreme and outrageousness to warrant submission of that issue to the jury. We conclude the trial court properly denied Craig's motion for directed verdict on this element of the tort.

118 The fourth element of the tort of intentional infliction of emotional distress requires proof that the emotional distress suffered by the plaintiff was "so severe that no reasonable [person] could be expected to endure it." Breeden, at 1877-78, n. 6. While "emotional distress includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea," it is only where the emotional distress is extreme that liability arises. Miller v. Miller, 1998 OK 24, 956 P.2d 887, 900 n. 44. "The intensity and duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant's conduct is in itself important evidence that the distress has existed.... The distress must be reasonable and justified under the cireum-stances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor has knowledge." Breeden, 1978 OK 27, 575 P.2d at 1377-78, n. 6.

{14 In this case, regarding as true all evidence and inferences favorable to Wel-ton and disregarding all evidence favorable to Craig, the record shows that Welton, who is by nature stoic, was very afraid of Craig. One of her friends testified: "[Alysial was scared. I mean she would shake when she read [the letters]. She was-and she's not like that. I mean if you know Alysia, she's not scared of anything, and it was really weird to see her that way." The friend further testified that Alysia had never reacted that way to anything before, and that Alysia "cried [and] lost weight, had a rash all over her arms and legs and [was] just a nervous wreck." Welton described those two years of her life as having been "the worst thing I've ever gone through. Every day is a scary day. Every day I'm afraid he's going to do something, send another letter, send another card, show up in my parking lot, show up at my house. It's just the most painful thing I've ever been through." Wel-ton testified that when she eventually called Craig's therapist, as Craig had asked, the therapist knew immediately who she was. The therapist asked if Craig was still stalking her and when Welton answered yes, the therapist suggested that Welton get a protective order against Craig. Welton became even more fearful after her conversation with Craig's therapist. She testified: "I was already stressed out about what he was doing with the letters and stuff, but [the therapist] took it to another level. Now, I was like, I didn't know what he was going to do." Wel-ton also testified that although Craig had never threatened her physically, "I just didn't know what level he was going to take it to. Like I said, I saw him outside of Keith's house, you know. He was finding out where I lived, he was finding out phone numbers that I had disconnected. He wouldn't stop."

115 Again, we do not find an entire absence of proof of severe emotional distress on the part of Welton. We conclude the trial court properly denied Craig's motion for directed verdict on this element of the tort.

CONCLUSION

{16 The tort of intentional infliction of emotional distress requires proof of plaintiff's severe emotional distress caused by defendant's intentional or reckless extreme and outrageous conduct. The trial court must act as a gatekeeper to ensure that only valid claims reach the jury.

1 17 We vacate the portion of the opinion of the Court of Civil Appeals that reversed the trial court's judgment on Welton's claim for intentional infliction of emotional distress and we affirm the trial court's judgment in favor of Welton on that claim. Since no party sought certiorari with respect to any other portion of the opinion of the Court of Civil Appeals, we leave undisturbed the balance of the Court of Civil Appeals opinion.

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

WATT, V.C.J., HODGES, OPALA, KAUGER, SUMMERS, and WINCHESTER, JJ., concur.

HARGRAVE, C.J., and LAVENDER, J., dissent.

      . The trial court conducted a hearing on March 12, 1998, on CPI's motion for temporary restraining order. At the conclusion of the hearing the trial court denied the motion, concluding that the computer source code that Welton serviced shortly after leaving CPI was not a trade secret. The trial court disposed of all of the parties' other claims on April 1, 1999, by granting partial summary judgments.

      . Section 46, RESTATEMENT (SECOND) OF TORTS (1977) reads, in pertinent part:
      46. Outrageous Conduct Causing Emotional Distress
      (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.


text:
    2002 OK 55
    In the Matter of the REINSTATEMENT OF Gary Wayne BRIGGS to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
    No. 4610.
    Supreme Court of Oklahoma.
    June 17, 2002.
   ORDER

1 1 On de novo consideration of the paperwork on file and of the transeript and record of proceedings before the Professional Responsibility Tribunal's assigned trial panel, the court finds that the applicant established by clear and convincing proof that:

(1) he is a person of ethical fitness,
(2) he has not engaged in the unauthorized practice of law since 27 June 1995 when his name was stricken from the Roll of Attorneys for noncompliance with mandatory continuing legal education requirements and for non-payment of dues, and
(8) the applicant faithfully continued to follow current developments in the law and is sufficiently abreast of intervening changes to qualify for reinstatement without examination.

4 2 The applicant's license to practice law in the State of Oklahoma shall stand reinstated upon his payment of the assessed costs of this proceeding in the sum of $522.28.

All Justices concur.


text:
    2002 OK 56
    In the Matter of the REINSTATEMENT OF James Roll Tourtellotte to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
    No. SCBD 4675.
    Supreme Court of Oklahoma.
    June 17, 2002.
   ORDER OF REINSTATEMENT TO OKLAHOMA BAR ASSOCIATION AND ROLL OF ATTORNEYS

{1 The Petitioner, James Roll Tourtel-lotte, was stricken from the Roll of Attorneys on September 8, 1997, for failure to pay dues and maintain Oklahoma Continuing Legal Education requirements. On December 18, 2001, Petitioner petitioned this Court for reinstatement as a member of the Oklahoma Bar Association. On March 14, 2002, a hearing was held before the Trial Panel of the Professional Responsibility Tribunal and the Tribunal recommended the Petitioner be reinstated. Upon de novo consideration of the matter, we find:

1. The Petitioner has met all the procedural requirements necessary for reinstatement in the Oklahoma Bar Association as set out in Rule 11, Rules Governing Disciplinary Proceedings, 5 ©.8.2001, ch.1, app. I-A.
2. The Petitioner has established by clear and convincing evidence that he has not engaged in the unauthorized practice of law in the State of Oklahoma since his suspension and disbarment.
3. The Petitioner has established by clear and convincing evidence that he possesses the competency and learning in the law required for reinstatement to the Oklahoma Bar Association without examination.
4, The Petitioner has established by clear and convincing evidence that he possesses the good moral character which entitles him to be reinstated to the Oklahoma Bar Association.
5. The Petitioner has met all the procedural requirements necessary for reinstatement to the Oklahoma Bar Association as set out in Rule 6(e) of the Rules for Mandatory Continuing Legal Education, 5 0.8.2001, ch.1, app. 1-B.

{2 IT IS THEREFORE ORDERED that the petition of James Roll Tourtellotte for reinstatement to membership in the Oka-homa Bar Association be granted and his name placed on the Roll of Attorneys.

All Justices concur.