author: LARRY JOPLIN, Judge. CAROL M. HANSEN, J.,

text:
    2004 OK CIV APP 58
    John W. GRIFFIN, Plaintiff/Appellant, v. Pauline Fullerton Fleetwood GRIFFIN, Defendant/Appellee.
    No. 98,768.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    March 26, 2004.
    As Corrected March 29, 2004.

      Joel L. Wohlgemuth, William W. O’Con-nor, Lindsey E. Albers, Norman, Wohlge-muth, Chandler & Dowdell, Tulsa, OK, and James C. McMillin, Sheryl N. Young, Kyma-la B. Carrier, McAfee & Taft, Oklahoma City, OK, and Robert Locke, Locke and Moore, Muskogee, OK, For PlaintiffAppel-lant.
    D.D. Hayes, Hayes Law Office, Muskogee, OK, and J. Philip Adamson, Tulsa, OK, For Defendant/Appellee.
   Opinion by

LARRY JOPLIN, Judge.

¶ 1 Plaintiff/Appellant John W. Griffin (Husband) seeks review of the trial court’s order granting alimony in lieu of property division and support alimony to Defendant/Appellee Pauline Fullerton Fleetwood Griffin (Wife) in the parties’ divorce action. In this proceeding, Husband complains the trial court erred in refusing to enforce the parties’ antenuptial agreement. Having reviewed the record and argument, we hold the trial court indeed erred. Accordingly, the order of the trial court dividing property and awarding alimony must be reversed, and the cause remanded for entry of an order consistent with the parties’ antenuptial agreement.

¶ 2 In anticipation of marriage, the parties agreed to execute an antenuptial agreement. At the time, Husband held an interest in significant trust assets, most of which were placed in trust for him at or soon after his birth. Wife was a college-educated business woman, with experience in the management of retail businesses.

¶ 3 After three weeks of negotiation and the exchange of at least two proposed drafts of the antenuptial agreement, the parties met, accompanied by their respective attorneys, and executed the agreement on February 28, 1991. According to the agreement, each party made financial disclosures and disclaimed any right in the other party’s separate property, any income or gain therefrom. The parties also agreed that neither would seek nor be entitled to alimony, support, division of marital assets, costs, attorney fees, or any other money or property from the other, except as provided by the agreement.

¶4 The agreement also provided that, in the event of divorce, Husband would pay Wife a lump sum amount according to the length of the marriage. If the divorce occurred after five years but before ten years from the date of marriage, Husband would pay Wife $250,000.00; if divorce occurred after ten years but before fifteen years of marriage, he would pay her $500,000.00; if the divorce occurred after fifteen years of marriage, he would pay her $500,000.00, plus a percentage of his gross salary over a period of four years.

¶ 5 On March 9, 1991, the parties married. Of the marriage, three children were born. During the marriage, Husband worked in the management of the family businesses, and the assets of Husband’s trusts appreciated.

¶ 6 Husband commenced the instant action for divorce in May 2000. Wife answered and counter-claimed for divorce, asserting misrepresentations in the antenuptial agreement.

¶ 7 At trial, the parties presented evidence concerning the events surrounding the negotiation and execution of the antenuptial agreement, including a video tape recording of the meeting. The parties also adduced evidence concerning the value of Husband’s disclosed assets, in an exhibit to the antenup-tial agreement clearly marked “Income Tax Basis,” but referred to by Husband’s attorney at the time of execution as “fair market value.”

¶ 8 Upon consideration of the evidence, by order filed July 3, 2002, the trial court found the antenuptial agreement void and in violation of public policy as impermissibly proscribing a division of jointly acquired property. The trial court also found that the antenuptial agreement was void because of misrepresentations in Husband’s financial disclosures. Additionally, the court found that the antenuptial agreement did not make fair and reasonable provision for Wife; that Husband did not make full, fair, and frank disclosure of his worth before the execution of the agreement; and that Wife did not have a generally accurate knowledge of his worth at the time the agreement was executed.

¶ 9 The trial court consequently held that Wife was entitled to one-half of the increase in value of the Husband’s separate assets attributable to the joint efforts of the parties during the marriage, and awarded Wife alimony in lieu of property division and support alimony. Husband filed a motion for new trial, which the trial court denied.

¶ 10 In this appeal, Husband challenges the trial court’s refusal to enforce the parties’ antenuptial agreement, and the awards of alimony in lieu of division of property, support alimony and attorney’s fees to Wife. We review the trial court’s decision concerning enforcement of an antenuptial agreement under the traditional, clear-weight-of-the-evidence standard applicable in equity actions. In re Cobb’s Estate, 1956 OK 299, ¶ 21, 305 P.2d 1028, 1033.

PUBLIC POLICY

¶ 11 The trial court held “the antenuptial agreement violates public policy and is void insofar as it seeks to prohibit [Wife] from being awarded an equitable division of the property acquired by the parties during marriage as a result of the joint efforts of the parties.” In Taylor v. Taylor, 1991 OK CIV APP 126, 832 P.2d 429, the Court of Appeals held an antenuptial agreement, divesting wife of a share in the increased value of the marital estate attributable to joint efforts, void as against the public policy expressed by 43 O.S. Supp.1989 § 121. The year following the decision in Taylor, the Oklahoma Legislature amended § 121 to permit the waiver of the right to an equitable division of jointly acquired property by antenuptial agreement. See, 43 O.S. Supp.1992 § 121 (eff. September 1, 1992). Consequently, there is no public policy bar to enforcement of the parties’ antenuptial agreement, and the trial court erred in so holding.

BURDEN OF PROOF

¶ 12 Like most issues in this case, the parties do not agree on the allocation of the burden of proof. Wife asserts that the proponent of the antenuptial agreement bears the burden to demonstrate a full, fair and frank disclosure of the amount, character and value of the property was made. In re Cobb’s Estate, 1956 OK 299, ¶ 16, 305 P.2d at 1032. Husband argues that because Wife seeks to avoid enforcement of the antenuptial agreement for misrepresentation, “[i]t is settled ... that fraud is never presumed, and the party attacking the contract’s validity must prove it [and] the proof of fraud must rise to the standard of ‘clear and convincing’ evidence.” Matter of Burgess’ Estate, 1982 OK CIV APP 22, ¶ 17, 646 P.2d 623, 626. The “burden [rests] upon [wife] to prove by satisfactory testimony her claim that [ante-nuptial agreement] was procured by fraud or duress.” Leonard v. Prentice, 1935 OK 427, ¶ 5, 43 P.2d 776, 778.

¶ 13 The confusion concerning burden of proof arises primarily because ante-nuptial agreements, like contracts in general, “can be avoided by a showing of fraud, duress, coercion, overreaching, and the like.” Burgess, 1982 OK CIV APP 22, ¶ 16, 646 P.2d at 626. However, an antenuptial agreement is a special kind of contract: “ ‘The confidential relationship which generally, although not always, is deemed to exist between a prospective husband and wife requires the utmost good faith and a high degree of fairness.’ ” In re Cobb’s Estate, 1956 OK 299, ¶ 15, 305 P.2d at 1032. (Emphasis added.) Because of the special nature of the relationship between a prospective husband and wife, the law imposes an additional burden upon the proponent of an ante-nuptial agreement to show either a “fair and reasonable provision made for the party opposing the contract,” or, a “a full, fair, and frank disclosure of the other spouse’s worth made before execution of the contract,” or, “[i]f neither of the above, [that] the party challenging the contract in fact ha[d] a generally accurate knowledge of the other’s worth.” Burgess, 1982 OK CIV APP 22, ¶ 19, 646 P.2d at 626.

¶ 14 In allocating the burden of proof, the court should first look to the agreement itself. If the antenuptial agreement is “apparently unfair on its face, equity raises a presumption against the validity thereof, and casts the burden upon ... those claiming the validity of the contract to show that a full and fair disclosure was made to [the other party] of the extent and value of the property before [the other party] signed it, or that [the other party] was aware to all intents and purposes of the nature, character and value of the estate which she was relinquishing if the marriage took place.” In re Cobb’s Estate, 1956 OK 299, ¶ 16, 305 P.2d at 1031-1032. (Citations omitted.) However:

If an agreement provides that full disclosure has been made, a presumption of full disclosure arises. If a spouse attempts to rebut this presumption through an assertion of fraud or misrepresentation then this presumption can be rebutted if it is proven by clear and convincing evidence.

Porreco v. Porreco, 571 Pa. 61, 811 A.2d 566, 570 (2002).

¶ 15 In the present case, the antenuptial agreement recites that a full disclosure of all real and personal property had been made, and that both parties had reviewed, examined and understood the agreement and attached exhibits. Independent counsel for each party executed an “attorney’s acknowledgment” in which both verified that the legal effect of the agreement was explained to their clients. This gave rise to a presumption of full disclosure, and consequently, validity of the antenuptial agreement. Since Wife attacked validity and enforcement of the antenuptial agreement on the basis of Husband’s alleged misrepresentation, the law cast on her the burden of proving misrepresentation by clear and convincing evidence. The trial court placed the burden of proving validity on Husband, but did not require Wife to prove misrepresentation by clear and convincing evidence.

MISREPRESENTATION

¶ 16 Wife argues that although Husband purported to make a full, fair and frank disclosure of his assets and their value, he in fact misrepresented the existence and value of his assets in basically two ways. First, even though the agreement valued the assets at “income tax basis,” his attorney represented the value of the assets at the execution of the agreement to be at “fair market value.” Second, says Wife, Husband failed to disclose a beneficial interest in his deceased father’s trust.

¶ 17 Before reviewing these allegations specifically, it is important to remember that fraud is never presumed, and must be proven by clear and convincing evidence. Unlike some other types of contracts, ante-nuptial agreements are favored in the law. Leonard, 1935 OK 427, ¶ 17, 43 P.2d at 780. The law favors these agreements as fostering marriage, since couples might choose not to marry without assurances that they will be free to order their affairs as they wish. Burgess, 1982 OK CIV APP 22, ¶ 9, 646 P.2d at 625.

¶ 18 Consequently, courts rarely set aside antenuptial agreements for fraud and misrepresentation. For example, in Leonard:

... The testimony of the wife, given in an action filed by her to set aside the contract over 13 years after the consummation of the marriage and after the death of the husband, that she executed the contract in haste one or two minutes before the marriage ceremony, did not read the contract, and did not know the value and extent of the husband’s estate, is not sufficient to impeach the contract.

43 P.2d 776, 1935 OK 427, ¶ 0(1). Indeed, “in Hoard v. Jones, 119 Kan. 138, 237 P. 888, 894 [it was held]: ‘The fact that the plaintiff was unable to read, or that it is not affirmatively shown that the contract was read to her at the time she executed it, do not in themselves indicate fraud[,] ... its voluntary execution being admitted.’ ” Leonard, 1935 OK 427, ¶ 8, 43 P.2d at 779.

¶ 19 In Blasingame v. Gathright, 1955 OK 152, 284 P.2d 431, the court found no fraud or deceit even though wife testified that the values listed in the antenuptial agreement were approximate, and that she neither read nor knew its contents before she signed it. In Matter of Baggerley’s Estate, 1981 OK CIV APP 49, 635 P.2d 1333, the Court of Appeals reversed the trial court’s finding of fraud sufficient to void an antenuptial agreement, where wife testified she signed the agreement, but had only “glanced at it,” and husband had not made “a proper disclosure” of his property, holding wife had a general knowledge of husband’s worth:

... [Wife] knew at the time she signed the agreement that [husband] was a well-respected businessman of means in Edmond; that he and his father were partners in the funeral home business; that he was planning to build a new funeral facility; and that he was an only child and stood to inherit the family estate.

1981 OK CIV APP 49, ¶ 14, 635 P.2d at 1335. These cases clearly demonstrate the courts’ reticence to set aside an antenuptial agreement except in the extremely rare circumstance of clearly and convincingly proven fraud or misrepresentation.

VALUE

¶ 20 On this issue of misrepresentation, Wife’s expert testified the “fair market value” of Husband’s listed assets was $4.6 million, rather than the $2.5 million “income tax basis” represented in Exhibit A to the ante-nuptial agreement. The trial court considered this a material misrepresentation, finding:

... [Husband’s] attorney represented to [Wife] and her attorney that the schedule of [his] assets attached to the agreement set forth fair market value of the assets of $2,500,000. At trial the evidence was undisputed that the value of [Husband’s] premarital assets attached to the antenuptial agreement was not based on fair market value, but instead was based on what [Husband] refers to as tax value.[T]here is a huge difference between tax value, book value and fair market value....

(Emphasis added.)

¶ 21 Exhibit A consisted of two pages purporting to be a complete list of assets known to Husband. At the top of both pages of Exhibit A — in bold type — appeared the title:

STATEMENT OF ASSETS AND LIABILITIES — INCOME TAX BASIS

JOHN W. GRIFFIN TRUST

Included in the financial statement were values attributed to all the assets and liabilities. This exhibit was given to Wife at least three weeks before execution for her examination and she had the advice of an independent attorney of her own choosing to aid her in that examination. During this time, even though the values listed were clearly on an “income tax basis,” neither Wife nor her attorney raised any question concerning the method of valuation or the stated values. Obviously, as the trial court found, it was undisputed that these values were on an “income tax basis.” The assets were valued on this basis, as Husband’s expert explained, because of the extreme difficulty in valuing assets of closely-held corporations such as those of Husband’s family businesses. Even Wife’s expert agreed it is difficult to arrive at a fair market value of a closely held corporation.

¶ 22 Since the agreement made clear that the assets were valued on income tax basis, Wife argues it was Husband’s attorney who misrepresented the valuation as “fair market value” at the execution of the ante-nuptial agreement. In order for Wife to prove by clear and convincing evidence that these statements of the attorney constitute misrepresentation sufficient to invalidate the contract:

.... It is well-settled hornbook law, universal in scope, that false representations which will invalidate a contract must be such as to constitute actual or legal fraud, and indispensable elements of such fraud are (1) that the representations must have been material to the contract or transaction at the time they were made; (2) the misrepresented facts must be facts of which the victim is ignorant, and which a person of ordinary sagacity and diligence would have acquired no knowledge; (3) the misrepresentations must be well calculated to deceive, and to induce the victim to make the contract; and (4) they must have induced him to do so.

James Talcott, Inc. v. Finley, 1964 OK 48, ¶ 11, 389 P.2d 988, 992-993. (Emphasis added.)

¶ 23 The statements by Husband’s attorney did not, and could not, rise to the level of fraudulent misrepresentation. There was no testimony or evidence of any kind suggesting that these statements by the attorney were “well calculated to deceive and to induce [her] to make the contract.” Equally important, Wife never testified she relied on the attorney’s statements of “fair market value,” or that she was induced to sign the agreement based on these statements.

¶24 Moreover, the evidence is clear that there was no reliance on the attorney’s statements. Otherwise, Wife would have arrived at the execution with no intent to sign the agreement until Husband’s attorney represented the values to be “fair market” value, and then, based on that representation, decided to sign. In fact, it is clear from the videotaped meeting that the attorney’s statements did not induce Wife to sign the agreement. More damaging still to the misrepresentation allegation is the fact that Wife acknowledged and agreed to the attorney’s statements that “the fair market value set forth opposite the assets of [Husband] are based upon estimates, [and] that reasonable minds can differ as to the amount of fair market value.”

¶ 25 The attorney’s statements regarding fair market value come closer to a statement of opinion than statements “well calculated to deceive.” When coupled with the reminder that “reasonable minds can differ” as to value, it would be unreasonable to believe that the statements were made with the intent to deceive. In short, absent evidence of intent to deceive, and reliance on those statements, Wife’s allegations of misrepresentation by Husband’s attorney are wholly unsupported, and the trial court erred in refusing to enforce the antenuptial agreement on this basis.

UNDISCLOSED ASSETS

¶ 26 Wife also alleged Husband failed to disclose his one-half beneficial interest in his deceased father’s trust, resulting in the understatement of his assets by $7.5 million. Husband argues that his deceased father’s trust — the John T. Griffin Revocable Trust— was a “Q-Tip” trust, with his mother to receive the income during her lifetime. His interest was a contingent remainder, requiring that he survive his mother in order to take under the trust, and that at her death, the assets of the trust would pass to him and his brother in equal shares.

¶27 In addition to Exhibit A, there was attached to the antenuptial agreement, Exhibit E, initialed by Wife at the time of execution, titled “Statement of Expectancy.” This statement set forth Husband’s “expectancy to receive from my mother’s estate upon her death, 50% of the value of all her assets; and that as of the date of the ante-nuptial agreement to which this statement is attached, the estimated net worth of my mother is $25,000,000.00.” Even assuming a failure to disclose whatever beneficial interest Husband had in his father’s trust, this exhibit clearly expresses his expectancy to receive 50% of the assets at his mother’s death worth $12.5 million, far exceeding Wife’s expert’s calculated value of the trust at $7.5 million.

¶ 28 Similarly fatal to this misrepresentation claim is Wife’s acknowledgment that the financial statements were based on Husband’s knowledge and belief, that they set forth a detailed description of Husband’s assets, “but that it is possible that there could be assets of which [Husband] has no knowledge or has overlooked, and which [were] not included in the exhibits] attached to the antenuptial agreement.”

¶ 29 The disclosure of the “expectancy interest,” coupled with Wife’s acknowledgment that conceivably some assets were not disclosed, make clear the lack of a fraudulent intent to deceive. The trial court erred in refusing to enforce the antenuptial agreement on this basis.

BURGESS TEST

¶ 30 Even though an antenuptial agreement may be free of fraud or misrepresentation, a court will refuse to enforce the agreement unless the agreement meets one or more of the Burgess factors. The Burgess factors are expressed in the disjunctive, so that in the event the agreement meets any one of the three criteria, the agreement will be enforced.

FAIR PROVISION FOR WIFE

¶ 31 After rejecting two proposed drafts, and negotiating for larger payments in the event of divorce, Wife agreed to the listed schedule of payments in the antenup-tial agreement. Given her business background, the advice of her independent attorney, the negotiations on this very point, and her acceptance of the agreement as written, it appears that a fair provision was made for Wife.

FULL DISCLOSURE

¶ 32 Wife argues that the fair market value of the assets listed, coupled with the nondisclosure of the beneficial interest in the trust, means the value of Husband’s assets was actually between $9 million and $11.5 million. So, says Wife, since Husband only disclosed $2.5 million in Exhibit A, there was no full disclosure of his property and assets as required by law. Husband responds, pointing out that the agreement disclosed his assets on an income tax basis, and his expectancy to inherit $12.5 million after his mother’s death, for a total disclosure of $15 million.

¶ 33 A disclosure need not be exact, and a generally accurate disclosure is sufficient:

Fair disclosure is not synonymous with detailed disclosure such as a financial statement of net worth and income. The mere fact that detailed disclosure was not made will not necessarily be sufficient to set aside an otherwise properly executed agreement. Where the agreement was freely executed, the fact that one party did not disclose in detail to the other party the nature, extent, and value of his or her property will not alone invalidate the agreement or raise a presumption of fraudulent concealment. (Citation omitted.) Fair disclosure contemplates that each spouse should be given information, of a general and approximate nature, concerning the net worth of the other. Each party has a duty to consider and evaluate the information received before signing an agreement since they are not assumed to have lost their judgmental faculties because of their pending marriage.

In re Estate of Lopata, Lopata v. Metzel, 641 P.2d 952, 955 (Colo.1982). In the present case, a disclosure that exceeds Wife’s evidence of value is sufficient to meet the disclosure requirement of Burgess.

GENERALLY ACCURATE KNOWLEDGE OF THE OTHER’S WORTH

¶ 34 This is often the only factor that courts find present when enforcing antenup-tial agreements. In Burgess, there was no provision for Wife, nor disclosure of assets recited in the agreement, but the appellate court reversed the trial court’s refusal to enforce the antenuptial agreement, specifically because the wife had “a generally accurate awareness of the extent of her betrothed’s property.” 1982 OK CIV APP 22, ¶ 26, 646 P.2d at 627. As the Court noted in Burgess:

.... “If, when she signed the contract freely and voluntarily, she had some understanding of her rights and had been fully informed by the husband as to his property or if, notwithstanding the husband’s failure to disclose, she had or reasonably should have had a general and approximate knowledge of the character and extent of his property she will be bound.”

1982 OK CIV APP 22, ¶ 28, 646 P.2d at 627. (Emphasis added.) In Leonard, the Supreme Court noted that antenuptial agreements will be enforced where wife “knew or ought to have known that [husband] possessed real and personal property substantially of the amount and value shown by the evidence.” 1935 OK 427, ¶ 10, 43 P.2d at 779.

¶ 35 After dating for over a year, Wife knew that Husband worked at the family television station in Oklahoma City, that he commuted to Muskogee to check on the family food business, and often went to Arkansas to check on the television stations there. This knowledge, coupled with his disclosure of an expectancy interest, his tax return, and assets and values — even if on income tax basis — clearly provided Wife with a generally accurate awareness of the extent of Husband’s property and worth.

SUMMARY

¶ 36 The parties’ antenuptial agreement was not void as contrary to public policy. Wife failed to prove fraud in the financial disclosures by clear and convincing evidence. All of the Burgess factors were met. The order of the trial court is therefore REVERSED, and the cause REMANDED for entry of an order in accord with the parties’ antenuptial agreement.

CAROL M. HANSEN, J., dissents with separate opinion; MITCHELL, P.J., concurs.

CAROL M. HANSEN, J.,

dissenting:

¶ 1 I agree with the majority’s statement of the applicable law, but disagree with its conclusion the trial court’s fact findings were clearly contrary to the weight of the evidence. The majority’s review of the record lacks the deference to which the trial court’s findings are entitled under this standard of review. In an equity case, we must begin our review by presuming the trial court’s findings are correct. Baytide Petroleum, Inc. v. Whitmar Exploration Co., 18 P.3d 378, 380, 2000 OK CIV APP 120. We will then examine the entire record and reweigh the evidence, and will reverse the trial court’s judgment if its findings are clearly contrary to the weight of the evidence. In Re Estate of Pope, 1990 OK 125, 808 P.2d 640, 646. If, on the other hand, the evidence reasonably tends to support the findings of the trial court, we will not disturb the judgment on appeal. Boughan v. Herington, 1970 OK 125, 472 P.2d 434, 436.

¶2 The record in this ease contains evidence reasonably supporting the trial court’s findings as to the three-part test of In Re Burgess’ Estate, 1982 OK CIV APP 22, 646 P.2d 623, 625, for the validity of antenuptial agreements:

1. Is fair and reasonable provision made for the party opposing the contract?
2. If not, was a full, fair and frank disclosure of the other spouse’s worth made before execution of the contract?
3. If neither of the above, did the party opposing the contract in fact have a generally accurate knowledge of the other’s worth?

In determining whether the contract made fair and reasonable provision for the party opposing it, the court may consider whether the provision is grossly disproportionate to the interest that party would acquire by operation of law in case the marriage took place. In Re Cobb’s Estate, 1956 OK 299, 305 P.2d 1028, 1032. Although an antenup-tial waiver of the right to an equitable division of jointly acquired property is no longer void as against public policy, it may be relevant to the court’s determination of whether the contract made fair and reasonable provision for the party opposing the contract.

¶ 3 The antenuptial contract in the instant ease contained representations by each party that the schedules attached to the agreement listed all of his or her real or personal property and set forth the value of the property. Each party disclaimed forever any right in the other party’s separate property as scheduled, any income or gain therefrom, and any property or income the other party should acquire during the marriage. The contract provided that in the event of divorce, neither party would seek nor be entitled to alimony, support, division of marital assets, costs, attorney fees, or any other money or property from the other, except that John agreed to pay Polly a lump sum, the amount of which increased according to the length of the marriage. If the divorce occurred after five years but before ten years from the date of marriage, John would pay Polly $250,000.00; if it occurred after ten years, he agreed to pay $500,000.00.

¶4 The schedule of assets John attached to the agreement was entitled “Statement of Assets and Liabilities — Income Tax Basis, John W. Griffin Trust, January 31, 1991,” and represented his net worth at $2,578,563.74. In the transcript of the meeting in which the parties executed the contract, John’s attorney referred to the schedule four times as setting forth the “fair market value” of John’s assets. John’s accountant testified his firm generated the schedule of assets and liabilities, and it represented the income tax basis of the assets, not the book value or fair market value. Polly’s finance and economics expert witness testified tax basis was the amount paid for an asset, adjusted down for depreciation and up for improvements. He opined the fair market value of the television subsidiaries on John’s asset list at the time the antenup-tial agreement was signed was $20 million to $29 million, and John’s interest, including his beneficial interest in his father’s trust, was $12,620,400.24, rather than the $1.8 million shown on the schedule. He also testified the value of the publicly traded stocks on the asset list was understated.

¶ 5 Polly testified she believed John’s schedule of assets was accurate at the time she signed the antenuptial agreement and that it reflected the fair market value of the assets listed.

¶ 6 This record contains evidence from which the trial court could find the antenup-tial contract did not make fair and reasonable provision for Polly, John did not make full, fair and frank disclosure of his worth before execution of the contract, and Polly did not in fact have a generally accurate knowledge of John’s worth. The evidence is sufficient to meet Polly’s burden of proof on these issues. I would affirm the trial court’s judgment.

      . Particularly, television stations in Oklahoma and Arkansas, as well as a regionally well-known food service.

      . In the decree of divorce, the trial court awarded Wife custody of the children and ordered Husband to pay child support. According to Husband's brief, however, the trial court later modified its custody order, granting custody of the children to him "on evidence of [Wife's] continued use of illegal drugs, medical neglect of the ... children, cohabitation with a convicted felon, prolonged absences from the homestead where the children resided, and forgery of medical and school records.” Therefore, child custody is no longer an issue on appeal.

      . As to such property, whether real or personal, which has been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall, subject to a valid antenuptial contract in writing, make such division between the parties as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to be paid such sum as may be just and proper to effect a fair and just division thereof. (Emphasis added.)

      . He arrived at this figure relying in part on a $20 million appraisal of the family-owned TV stations done a month after the execution of the antenuptial agreement, multiplied by Husband's seven percent (7%) ownership interest.

      . Also attached to the antenuptial agreement was a copy of Husband’s 1989 tax return.

      .Husband's attorney referred to "fair market value” four times while reviewing the agreement with Wife:
      HUSBAND'S ATTORNEY: Attached to this Antenuptial Agreement as Exhibit A are several pages of financial statements, setting forth a description and an estimate of the fair market values of the assets owned by [Husband] as of January 31, 1991. Have you reviewed these financial statements?
      WIFE: Yes.
      HUSBAND'S ATTORNEY: Do you acknowledge and agree that the fair market value set forth opposite the assets of [Husband] are based upon estimates, that reasonable minds can differ as to the amount of fair market value, and that you consider that there has been a full disclosure as to the nature and fair market value of the assets of [Husband] for the purposes of this agreement?
      WIFE: Yes.
      (Emphasis added.)

      . Wife stated, "I’m marrying him because I love him.”

      . See also, 15 O.S. § 137 ("The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument.”)

      . Wife’s expert arrived at this figure by discounting the trust value according to the life expectancy of Husband's mother.

      . At trial, Husband offered the father's trust into evidence. Wife objected, and the trial court sustained the objection. On offer of proof, Husband outlined the terms of his father’s trust for the record.

      . For example, although the trial court might find that the agreement did not afford a “fair and reasonable provision" for a spouse, a finding of either a "full, fair and frank disclosure of the other spouse's worth made before execution of the contract,” or a "generally accurate knowledge of the other’s worth,” will be sufficient to sustain the efficacy of the agreement. Burgess, 1982 OK CIV APP 22, ¶ 19, 646 P.2d at 626.

      . See also, 41 C.J.S., Husband and Wife, § 67.

      . Quoting, Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962).

      . Quoting, Yarde v. Yarde, 187 Ill. 636, 58 N.E. 600.


source: Caselaw Access Project

author: JERRY L. GOODMAN, Judge.

license: Public Domain

text:
    2004 OK CIV APP 56
    COMMERCIAL FINANCIAL SERVICES, INC., as Debtor in Possession, Plaintiff, v. ARTHUR ANDERSEN LLP, Defendant and Third-Party Plaintiff/Appellant/Cross-Appellee, v. Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., Moody’s Investors Service, Inc., Third-Party Defendants/Appellees, and Fitch Investors Services, L.P., Duff & Phelps Credit Rating Company, Third-Party Defendants/Appellees/Cross-Appellants, and William R. Bartmann and Jay Jones, Third-Party Defendants.
    No. 99,546.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    April 6, 2004.
    Certiorari Denied June 14, 2004.

      J. Douglas Mann, John E. Howland, Ro-senstein, Fist & Ringold, Tulsa, OK and Eliot Lauer, Jeffrey I. Zuckerman, Curtis, Mallet-Prevost, Colt & Mosle LLP, New York, NY, for Defendant and Third-Party Plaintiff/Appellant/Cross-Appellee.
    Phillip T. Bruns, Robert J. Madden, Gibbs & Bruns, L.L.P., Houston, TX and James C. Lang, Brian T. Inbody, Sneed & Lang, P.C., Tulsa, OK, James L. Costner, Joshua M. Rubins, Satterlee Stephens, Burke & Burke, New York, NY, for Third-Party Defendant/Appellee Standard & Poor’s Rating Services.
    John N. Hermes, McAfee & Taft, P.C., Oklahoma City, OK, for Third-Party Defendant/Appellee Moody’s Investors Service.
    Evan A. Davis, Carmine Bocuzzi, Anil Kal-han, Cleary, Gottlieb, Steen & Hamilton, New York, N.Y. and Laurence L. Pinkerton, Judith A. Finn, J. David Jorgenson, Pinkerton & Finn, P.C., Tulsa, OK, for Third-Party Defendants/Appellees/Cross-Appellants Fitch Investors Services and Duff & Phelps Credit Rating.
   Opinion by

JERRY L. GOODMAN, Judge.

¶ 1 Arthur Andersen, LLP, appeals the trial court’s grant of motions to dismiss filed by third-party defendants Standard & Poor’s Ratings Services, Moody’s Investors Service, Inc., and Fitch, Inc., a successor to Fitch Investors Services, L.P. and Duff & Phelps Credit Rating Company (collectively, the Rating Agencies). Andersen, an accounting firm, has been sued by Commercial Financial Services, Inc., (CFS) for professional malpractice. Andersen asserted a right of contribution against the Rating Agencies, which gave favorable ratings to securities sold by CFS trusts. This appeal was assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(a)(2), 12 O.S.2001, ch. 15, app. 1. Based on the facts and applicable law, we affirm in part, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2 CFS is a debt purchasing and collecting company. Purportedly once the world’s largest purchaser and servicer of defaulted credit card receivables, the company filed for Chapter 11 bankruptcy in late 1998.

¶3 In the mid-1990’s, CFS changed its operations by using “asset securitization.” In this connection, CFS purchased, at a significantly discounted price, bad debts previously charged off by banks and credit card companies. It would then pool these accounts, sell them to an affiliated entity, who in turn sold them at a profit to a trust. The trust then issued and sold securities in the form of notes and certificates, which were secured by the accounts and paid from the stream of income derived from collections of the pooled bad debts. Collections were handled by CFS, which charged a fee to do so.

¶ 4 Between 1996 and 1998, over a billion dollars was raised through asset securitiza-tions by a series of trusts. Eventually, CFS was unable to collect enough money from the bad debtors to meet the cash flow required to repay the purchasers of the notes, which led to the company’s failure.

¶ 5 CFS sued Andersen, an accounting firm it had hired, asserting Andersen gave it negligent advice and encouragement, failed to properly audit financial statements by overstating assets and understating liabilities, and lulled CFS into a false sense of security about its financial condition. In particular, CFS asserted the failure of the asset securitization plan was due to Andersen’s facilitation of the creation of the plan and failure to warn CFS that it would be unable to sufficiently collect from the supporting collateral. Among other things, CFS asserted Andersen failed to exercise “professional skepticism.”

¶ 6 Andersen answered, asserting that CFS was responsible for its own condition due to the fraudulent conduct of management. For example, Andersen asserted CFS funneled cash to another company to expedite the purchase of the accounts receivable owned by the trusts and make it appear as if the plan were succeeding.

¶ 7 The subject of this appeal is Andersen’s third-party petition for contribution from the Rating Agencies, which are nationally recognized statistical rating organizations. The Rating Agencies were employed by CFS to rate the various certificates issued by the trusts. Their ratings were favorable, through designations such as “A” or “investment-grade.” Andersen argued the Rating Agencies were negligent in giving the securities such high ratings. Andersen further argued the asset securitization plan was dependent on those ratings, so that if the ratings had not been favorable, the plan could never have been implemented. Andersen asserted the Rating Agencies made negligent misrepresentations and omissions to CFS regarding the securities’ risk and profitability. Andersen pled claims of negligent misrepresentation and negligence by the Rating Agencies to CFS, pursuant to 12 O.S.2001 § 832(A).

¶ 8 The Rating Agencies filed motions to dismiss, which the trial court granted. In its journal entry, the trial court found:

(1) the ratings were opinions protected by the First Amendment, subject to the standard of actual malice used in libel cases;

(2) the Rating Agencies owed no duty to CFS as a matter of law;

(3) the purpose of the ratings was to advise investors, and not CFS, so the ratings were not for the “benefit and guidance” of CFS as required by the Restatement (Second) of Torts § 552;

(4) CFS could not profit from its own wrongs, so any CFS claims against the Rating Agencies should be dismissed as a matter of law;

(5) Andersen could not prove reliance by CFS.

¶ 9 The trial court also denied Andersen’s request to amend pursuant to what is now 12 O.S. Supp.2003 § 2012(G), on the ground that adding a malice element would be futile and untimely. The trial court rejected several additional arguments by the Rating Agencies, including the argument that 12 O.S.2001 § 832 excluded contribution claims based on purely economic loss. The trial court included in its order language in compliance with 12 O.S.2001 § 994(A) in order to expedite this appeal.

¶ 10 Andersen appeals, and third-party defendant Fitch cross-appeals. Even though the trial court granted its motion to dismiss, Fitch asserts the trial court erred by finding 12 O.S.2001 § 832 did not bar recovery for contribution on purely economic terms, and by failing to address Fitch’s argument that for a putative negligent misrepresentation to be actionable under § 552 of the Restatement, the misrepresentation must have been intended for a limited group of persons, as opposed to the investing public at large.

STANDARD OF REVIEW

¶ 11 Because the motions to dismiss included evidentiary materials outside the pleadings not excluded by the trial court, we treat the trial court’s decisions as the grant of summary judgment to the Rating Agencies. See 12 O.S. Supp.2003 § 2012(B). Summary judgment is appropriate where there is no dispute as to any material fact, Indiana Nat’l Bank v. State Dept. of Human Servs., 1993 OK 101, ¶ 10, 857 P.2d 53, 59, and where one party is entitled to judgment as a matter of law. Sellers v. Okla. Pub. Co., 1984 OK 11, ¶ 23, 687 P.2d 116, 120. We therefore review the trial court’s decision de novo. Young v. Macy, 2001 OK 4, ¶ 9, 21 P.3d 44, 47.

ANALYSIS

¶ 12 We have analyzed each reason given by the trial court for granting the motion to dismiss, as well as those additional reasons raised in the cross-appeal. For the following reasons, we believe dismissal was inappropriate.

Opinion and the First Amendment

¶ 13 The trial court held the ratings were opinions protected by the First Amendment, subject to the standard of actual malice used in libel cases. In defamation cases applying a statutory privilege, Oklahoma courts have stated that an opinion is incapable of being “false.” Hennessee v. Mathis, 1987 OK CIV APP 35, ¶ 11, 737 P.2d 958, 962. The Rating Agencies assert that the ratings of the certificates were opinions, and thus not subject to the negligence standard.

¶ 14 The Rating Agencies’ ratings fall somewhere between those opinions which receive constitutional protection and those that do not. On the one hand, editorial writers and private citizens are generally free to speak their mind regarding public officials’ conduct without having to fear a lawsuit. See, for example, Gaylord Entm’t Co. v. Thompson, 1998 OK 30, 958 P.2d 128. On the other hand, a lawyer issuing a title opinion is not automatically exempt from a negligence lawsuit simply because the lawyer is giving an “opinion.” See, for example, Great Plains Fed. Savs. & Loan Ass’n v. Dabney, 1993 OK 4, 846 P.2d 1088.

¶ 15 The Rating Agencies rely heavily on a 10th Circuit Court of Appeals decision, Jefferson County School District No. R-1 v. Moody’s Investor’s Services, Inc., 175 F.3d 848 (10th Cir.1999). In that case, the school district brought bonds to market. Moody’s, a rating agency, published an article regarding the bonds in an electronically distributed information service sent to subscribers and news services. The article gave the bonds and the school district’s financial condition negative evaluations, which affected the bonds’ value and ultimately caused the district to re-price the bonds at a higher interest rate, costing the district money. Id. at 850-51.

¶ 16 The 10th Circuit affirmed the trial court’s dismissal of the district’s lawsuit. The Court noted that it had long been the rule, as articulated by the U.S. Supreme Court in First Amendment cases including Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), that a statement “of opinion relating to matters of public concern which does not contain a provably false factual connotation” will receive full constitutional protection. Id. at 851. The Court then held the combination of the district’s failure to identify a specific false statement reasonably implied from Moody’s article, plus the vagueness of the phrases used by Moody’s, resulted in the article and the rating being protected expressions of opinion. Id. at 856.

¶ 17 There is a crucial distinction between Jefferson County and the instant case. In Jefferson County, Moody’s published its opinion for the benefit of subscribers and news services. “[I]t had not been asked to rate the bonds.” Id. at 850. By contrast, in the instant case the Rating Agencies had been asked to rate the bonds, at CFS’s request and at CFS’s expense.

¶ 18 It is reasonable to assume that CFS was paying for something when it asked the Rating Agencies to rate the bonds. What it was paying for was their opinion as to the bonds’ worthiness. This fact distinguishes the instant case from Jefferson County. While the Rating Agencies gave “opinions,” they did so as professionals being paid to provide their opinions to a client. If a journalist wrote an article for a newspaper about the bonds, the First Amendment would presumably apply. But if CFS hired that journalist to write a company report about the bonds, a different standard would apply. Similarly, CFS and the Rating Agencies can be said to be in privity through an agreement that both sides are entitled to enforce.

¶ 19 We have considered whether it is any less of an “opinion” because the opinion maker is being paid by and is in privity with the entity who may assert it is not getting that for which it paid. We believe the relationship between these parties goes beyond a relationship between a journalist and subject, and is more analogous to that of a client and the client’s certified public accountant. See Stroud v. Arthur Andersen & Co., 2001 OK 76, 37 P.3d 783. We do not believe the First Amendment shields the agencies from potential liability.

Duty and the First Amendment

¶ 20 The trial court also granted the motions to dismiss because it held the Rating Agencies owed CFS no duty as a matter of law. The threshold question in any suit based on negligence is whether the defendant had a duty of care to the particular plaintiff alleged to have been harmed. Haas v. Firestone Tire & Rubber Co., 1976 OK 178, ¶ 14, 563 P.2d 620, 625. Duty of care is a question of law, and thus was properly a matter for the trial court to determine. Delbrel v. Doenges Bros. Ford, 1996 OK 36, ¶ 7, 913 P.2d 1318, 1320-21.

¶ 21 We cannot accept the argument that having agreed to rate the bonds for a fee, the Rating Agencies owed no duty of care to CFS, the entity paying for the rating. A typical letter from a rating agency to CFS outlines the parties’ relationship. It states that the rating of the certificates was being made pursuant to a request by CFS; that the rating was based on information furnished by CFS/the trusts; that the rating was favorable; that the rating could be disseminated to interested parties (though the certificates were to be placed privately) and that the agency retained the right to advise the public of the rating; that the rating did not constitute a recommendation to buy, sell, or hold the certificates; and that a bill for the agency’s work would be sent to CFS.

¶22 The parties agreed that the Rating Agencies would give their opinions as to the worthiness of the certificates. The agencies did not promise to give a certain rating, but it is implicit in the parties’ business relationship that the rating would be made in a non-negligent way. This is the essence of Andersen’s third-party petition: that the Rating Agencies committed negligence by breaching a duty to CFS not to supply false and misleading statements or omissions in connection with the ratings.

¶ 23 It is true that in supplying a rating, the rating agencies also serve the public interest. As explained in a law review article on the subject, “The bond rating services are popular with investors because they can rate securities’ riskiness far less expensively than can an individual investor. The information the services provide improves the market’s efficiency by equalizing prices at the margin so that the securities more accurately affect the market’s collective preference for the risk.” Gregory Husisian, What Standard of Care Should Govern the World’s Shortest Editorials? An Analysis of Bond Rating Agency Liability, 75 Cornell L.Rev. 411, 413 (1990) (footnotes omitted). The article goes on to cite a number of decisions for the proposition that bond rating services receive the same full First Amendment protection afforded other media such as newspapers for negligent non-defamatory misstatements of fact. Id. at n. 16; see, for example, First Equity Corp. of Fla. v. Standard & Poor’s Corp., 869 F.2d 175, 180 (2d. Cir.1989).

¶ 24 In a footnote, the Jefferson County decision referred to the Cornell law review article as follows:

Assessing the other possible causes of action against bond rating agencies like Moody’s, one commentator has concluded that the tort of negligent misrepresentation should not be extended to them:
Courts cannot constitutionally allow recovery on any showing less than recklessness because of the potential chilling effect that imposing a negligence standard would have on rating publications. Given the importance of financial information to investors and the economy as a whole, bond rating constitutes a matter of “public concern.” Applying traditional first amendment law, the state’s interest in compensating relying investors must give way to the first amendment’s concern for the free flow of commercial information. Society must rely on the market and competition to keep rating agencies operating at their negligence threshold, not on courts and juries. Husisian, supra, at 460.

Jefferson County, 175 F.3d 848 at note 3.

¶ 25 We have examined the cases cited in the law review article in support of its thesis. These cases are distinguishable from the facts in the case before us for the same underlying reason that Jefferson County is distinguishable. First Equity Corp. of Fla. v. Standard & Poor’s Corp., 869 F.2d 175 (2d Cir.1989), involved a lawsuit by subscribers to Standard & Poor’s securities information publication that allegedly misstated the terms of an indenture relating to securities. The Second Circuit affirmed a motion to dismiss on tort law grounds without addressing First Amendment issues. Id. at 178-79. The Court placed Standard & Poor’s somewhere between an accountant and a general interest newspaper publisher, and concluded that the protection granted the latter should apply. The Court rejected the argument that a subscriber was in privity with the newsletter, theorizing that “[a] subscriber is not significantly different from other purchasers of a publication merely because he pays for it on a more or less regular basis.” Id. at 179.

¶ 26 In another ease cited in the article, Daniel v. Dow Jones & Co., 137 Misc.2d 94, 520 N.Y.S.2d 334 (N.Y.City Civ.Ct.1987), the trial judge dismissed a lawsuit filed by an investor who subscribed to the Dow Jones News/Retrieval service. The investor asserted he relied on the electronic service’s erroneous omission of the fact that prices regarding a transaction were in Canadian and not United States dollars. The trial judge granted a motion to dismiss on both First Amendment and tort law grounds. Regarding the latter, the judge essentially held the service owed no duty to the subscriber regarding the information. But the court noted the result might be different under New York law if the parties were in a “special relationship,” and that this rule applied despite the weakening of the rule of privity. Id. at 337.

¶ 27 In the instant case, there is a special relationship between the parties. The relationship is spelled out in the communications and dealings between the parties, as detailed above. The Rating Agencies cannot be said to have no greater duty than that owed to a reader of a general interest newspaper or a subscriber of a specialist newsletter. There is no Oklahoma authority, either in the statutes or caselaw, for the proposition that an exception to the traditional rules of negligence should apply here to shield the Rating Agencies.

¶ 28 The strongest argument for granting the motions to dismiss may well be one of public policy. The public depends on rating agencies for accurate, useful advice in making investment decisions. A legitimate concern exists that applying the negligence standard may pressure the agencies into issuing a more favorable rating than is deserved (and not a less favorable one, as Andersen asserts the agencies should have done in this case) out of fear of a lawsuit brought by the security’s issuer. Nonetheless, while the Rating Agencies did not owe CFS a duty to issue the rating CFS might have wanted, they did owe it a duty to issue the rating the securities deserved.

The Restatement’s “benefit and guidance”

¶ 29 The trial court also held that the purpose of the ratings was to advise investors and not CFS, so the ratings were not for the “benefit and guidance” of CFS as required by the Restatement (Second) of Torts § 552 (1977).

¶ 30 As previously explained, the ratings could be said to benefit investors. But unquestionably, they also benefitted CFS. The ratings were made solely at the behest of CFS, in exchange for a fee paid by CFS. We cannot accept the argument that the entity which paid for the service and would presumably use and in fact publish the information would be excluded from the Restatement’s coverage. In fact, the Restatement itself resolves this argument. Comment (h) to § 552 states, in relevant part:

It is enough that the maker of the representation intends it to reach and influence either a particular person or persons, known to him, or a group or class of persons, distinct from the much larger class who might reasonably be expected sooner or later to have access to the information and foreseeably to take some action in reliance upon it....

¶ 31 Unquestionably, the Rating Agencies intended the ratings to reach and influence CFS. Even if the ratings had been negative, they would still be for the “benefit and guidance” of CFS. We therefore reject this argument.

CFS’s “own urrongs

¶ 32 The trial court further held CFS could not profit from its own wrongs, so any CFS claims against the Ratings Agencies would be dismissed as a matter of law. There is a good deal of argument in the record regarding whether CFS gave false information to the agencies and committed fraud in its financial dealings. However, at this point, the record certainly does not establish without a doubt that CFS is guilty of such conduct, much less that its actions preclude the possibility of recovery. Dismissal of the lawsuit at this point in the proceedings on this ground is not warranted.

Reliance

¶ 33 The trial court also held Andersen could not prove reliance by CFS. It may be that at some point in the proceedings, the evidence will show a lack of causation. Again, at this stage of the proceedings, this is a matter that must be developed further and is not an appropriate ground for dismissal.

12 O.S.2001 § 832’s Injury to Property

¶ 34 We have considered two other grounds for dismissal, which have been raised by Fitch in its cross-appeal. We conclude the trial court correctly rejected these arguments.

¶ 35 First, Fitch asserts the trial court erred by finding 12 O.S.2001 § 832 did not bar contribution claims for purely economic loss. As cited earlier in this opinion, a right of contribution exists for joint or several liability in tort “for the same injury to person or property....” Fitch argues this case does not involve “property” because it involves only pure economic loss. It appears Fitch’s view would prevail in New York, where the courts have held that their contribution statute (which, like Oklahoma’s, covers personal injury, injury to property, and wrongful death), does not permit a claim for contribution where damages are purely for economic loss. See Scalp & Blade, Inc. v. Advest, Inc., 300 A.D.2d 1068, 755 N.Y.S.2d 140 (N.Y.App.Div.2002).

¶ 36 However, Oklahoma statutes define “property” to include both real and personal property, and define “personal property” to include money, goods, chattels, things in action, and evidences of debt. 25 O.S.2001 § 26. In the absence of any Oklahoma authority to the contrary, we do not believe the Legislature meant to exclude “money” from its definition of property in § 832. We therefore reject this argument.

The Restatement’s “Person/Limited Group” Requirement

¶ 37 Fitch also asserts the Restatement (Second) of Tort’s § 552 requires the misrepresentation to have been intended for a limited group of persons, as opposed to the investing public at large. As found earlier in this opinion, § 552’s applicability of the tort of negligent misrepresentation is limited in relevant part to losses suffered “by the person or one of a limited group of persons” who the supplier of the false information intends to supply. Fitch asserts because the rating could reach a potentially limitless audience, § 552 cannot apply.

¶ 38 The answer to this argument is that no matter who else might eventually learn of the rating, the rating was clearly intended for CFS. As explained above, the communications between the parties unquestionably show the rating was done at CFS’s request, and the information concerning the rating was communicated by the agencies to CFS. Section 552’s comment g., in fact, states in relevant part:

The person for whose guidance the information is supplied is often the person who has employed the supplier to furnish it, in which case, if it is supplied for a consideration paid by that person, he has at his election either a right of action under the rule stated in this Section or a right of action upon the contract under which the information is supplied.

¶ 39 CFS employed the Rating Agencies to furnish the information for a consideration. Fitch’s argument that the Restatement does not apply is therefore rejected. We affirm the portions of the trial court’s decision rejecting Fitch’s additional grounds for dismissal, which were raised in Fitch’s cross-appeal.

CONCLUSION

¶ 40 We express no opinion on whether the Rating Agencies are ultimately liable for contribution, as our opinion is limited to the matter of whether the trial court’s grant of the motions to dismiss was legally correct. For the reasons given, we affirm in part, reverse in part, and remand for further proceedings.

¶ 41 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

TAYLOR, P.J., and STUBBLEFIELD, J., concur.

      . "When two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them except as provided in this section.”

      . Section 552(1) states:
      One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
      In relevant part, § 552(2) limits liability to loss suffered "by the person or one of a limited group of persons for whose benefit and guidance” the information is intended to be supplied.
      The Oklahoma Supreme Court applied § 552 in Stroud v. Arthur Andersen & Co., 2001 OK 76, ¶ 34, 37 P.3d 783, 793-94, an accountant negligence case.

      . We note that the Restatement provides support for our analysis of the First Amendment and duty arguments. Comment (c) to § 552 states that the rule applies only when the defendant has a pecuniary interest in the transaction in which the information is given. Comment (d) states that this interest "will normally lie in a consideration paid to him for it....” Indisputably, the Rating Agencies were paid a consideration by CFS.

      . See note 1.

      . See note 2.


author: RONALD J. STUBBLEFIELD, Judge.

text:
    2004 OK CIV APP 57
    William R. BURKETT, Plaintiff/Appellant, v. Moshe TAL, Francis M. Lowrey, David A. Yeagley, Jaquiline B. Harrison, Joseph V. Nelson, W.D. McGowen, Physilla Jo Polley, Morning-Star Takapu, Michael P. Toms, Kasey L. Toms, Thomas Hurley, Lanette McCoy, Carolyn Scatena, Edna Richardson, and Jack Wellborn, Defendants/Appellees.
    No. 100,229.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    May 4, 2004.
    Certiorari Denied June 14, 2004.
    William R. Burkett, Oklahoma City, OK, Pro Se PlaintiffAppellant.
    Moshe Tal, Oklahoma City, OK, Pro Se Defendant/Appellee.
    James E. Dunn, James E. Dunn & Associates, Oklahoma City, OK, for Remaining Defendants/Appellees.
   Opinion by

RONALD J. STUBBLEFIELD, Judge.

¶ 1 This is an appeal by the Municipal Counselor of the City of Oklahoma City from summary judgment granted in favor of defendants in his personal action for libel. The case has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S.2001, ch. 15, app. 1. Based on our review of the record on appeal and applicable law, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On February 25, 2003, Defendants Moshe Tal, Francis M. Lowrey, David A. Yeagley, Jaquiline B. Harrison, Joseph V. Nelson, W.D. McGowen, Physilla Jo Polley, Morning-Star Takapu, Michael P. Toms, Kasey L. Toms, Thomas Hurley, Lanette McCoy, Carolyn Scatena, Edna Richardson and Jack Wellborn, calling themselves Taxpayers for Honest Government (Taxpayers), filed a sixteen-page “written demand” with the City Clerk of Oklahoma City. The document, in great detail, claimed that the Mayor and members of the city council, along with the Director, Chairman, and members of the OHahoma City Urban Renewal Authority (OCURA) conspired to and did cause an illegal appropriation of approximately $17,000,000 of taxpayer funds for expenditure for the benefit of the private company, Bass Pro Outdoor World, L.L.C. The written demand stated that, if the public officials took no action, the group would proceed with its own legal action pursuant to 62 O.S.2000 §§ 371-372.

¶ 3 The written demand claimed expenditures of tax revenues were illegal as they violated Article 10, Sections 14, 17, and 19 of the Oklahoma Constitution, as well as the statutory provisions of 68 O.S.2001 § 2701 and 11 O.S.2001 § 35-202. In addition the document stated claims that the transactions involved (1) “Self-Dealing and Conflict of City and Urban Renewal Officials;” (2) conspiracy and racketeering activities by public officials; and (3) anti-competition and monopoly law violations. Under the conspiracy and racketeering claim, Taxpayers included the following language in paragraph 32:

Urban Renewal Commissioners Tolbert, Hall, and Nichols, together with Urban Renewal Executive Director Tiana Douglas (“Douglas”), with the aid of Urban Renewal Commissioners Stanton Young (‘Young”) and Warren Gardner (“Gardner”) entered into a conspiracy agreement among themselves and with numerous members of the TMK/Hogan Team, Mayor Humphreys, City Manager James Couch (“Couch”) and other City Council members (especially Councilman Guy Liebmann [“Liebmann”]), and joined by the City and Urban Renewal attorneys, including, but not limited to Urban Renewal “Chief’ Counselor, Mr. Dan Batchelor (“Batche-lor”), OHahoma City Municipal Counselor William Burkett (“Burkett”), Assistant Municipal Counselor Daniel Brummitt (“Brummitt”), Assistant Municipal Counselor Diane Lewis (“Lewis”), Former Municipal Counselor William West (“West”), and other unnamed coconspirators woridng under the supervision of attorneys Batche-lor and Burkett, and developed a scheme to illegally “convert” millions of dollars from MAPS Sales Tax Funds, as well as money from City’s other tax funds (school, safety, etc as outlined above), and from Federal CDBG funds, for their own personal use and financial gain, using the TMK/Hogan Team and Bass Pro as a “front” to cover-up their illegal activities.

Immediately after filing the written demand, Taxpayers attended a regularly scheduled meeting of the City Council of Oklahoma City. One or more members of the group approached counsel members to personally serve copies of the written demand. However, City Counselor (City Attorney) Burkett purportedly stated, he had received a copy of the written demand and had circulated copies of it to council members. Then, sometime during the meeting, Burkett read paragraph 32 aloud to the council. The council meeting was televised on a local cable television channel.

¶4 The day after the council meeting, Burkett sent a letter to Taxpayers threatening a libel suit if they did not publicly apologize and withdraw the statement made in paragraph 32. Taxpayers responded that they had made the charges after diligent investigation; their filing of the written demand was a statutory prerequisite for filing a taxpayer lawsuit under 62 O.S.2001 § 373; and, as a communication made in a “legislative or judicial proceeding or any other proceeding authorized by law,” them written demand was privileged under 12 O.S.2001 § 1443.1.

¶ 5 Burkett responded, acknowledging that the communication would have been privileged under § 1443.1, but, because Taxpayers had failed to file a verified demand, as specified in § 373, the communication was not privileged. Taxpayers disputed this interpretation of the law by Burkett, but did amend their demand to include a verification. Burkett responded by claiming the communication was still not privileged because the signatures of Taxpayers were not notarized.

¶ 6 Subsequently, the City of Oklahoma City (City) filed a declaratory judgment suit against the OCURA and two public sector defendants to determine the lawfulness of certain agreements and transactions about which Taxpayers had complained. Taxpayers attempted to intervene in that action but were denied intervention. OCURA filed a declaratory judgment action against Taxpayers seeking to confirm the validity of the transactions about which Taxpayers complained. In that lawsuit, Burkett filed a third-party claim on behalf of City, and Taxpayers filed their own third-party petition — a “qui tam claim brought pursuant to § 373.

¶ 7 On May 13, 2003, Burkett filed this action for libel against Taxpayers. Taxpayers sought summary judgment on the basis that the communication was privileged; they also argued it was Burkett who had caused the publication of paragraph 32 by reading it aloud at the televised City Council meeting. Burkett filed his own motion seeking partial summary adjudication that the contents of paragraph 32 were false and not privileged. The Trial Court granted judgment in favor of Taxpayers, finding that the written demand was filed pursuant to 2001 § 373, and as such was a privileged communication as specified in § 1443.1. Burkett appeals.

STANDARD OF REVIEW

¶ 8 The appellate standard of review of a trial court’s grant of summary judgment is de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review, this Court will examine the pleadings and eviden-tiary materials submitted by the parties to determine if there is a genuine issue of material fact. Id. All inferences and conclusions to be drawn from the evidentiary materials will be viewed in the light most favorable to the non-moving party. Id. This Court will reverse the grant of summary judgment when it appears from the evidentiary materials that the material facts concerning issues raised in the case are conflicting or, if the material facts are undisputed, reasonable persons in the exercise of fair and impartial judgment might reach different conclusions from those facts. Buck’s Sporting Goods, Inc. v. First Nat’l Bank & Trust Co. of Tulsa, 1994 OK 14, ¶ 11, 868 P.2d 693, 697-98. In a summary judgment review an appellate court has the same power as the trial court to resolve any disputed issues of law. U.S. Mortgage v. Laubach, 2003 OK 67, ¶ 31, 73 P.3d 887, 900.

DISCUSSION OF ISSUES

¶ 9 For his propositions of error Burkett poses two questions which may be summarized as contentions that the “unverified” written demand of Taxpayers was not privileged, but was indeed libel per se. We disagree and find that the communication was privileged. This conclusion is dispositive of the appeal.

¶ 10 The question is largely one of law. Burkett does not dispute that the written demand of Taxpayers was filed specifically as a prerequisite to filing a qui tam lawsuit, which was subsequently filed as described above. In State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, ¶ 32, 61 P.3d 234, 249, the Oklahoma Supreme Court, upon consideration of an award of attorney fees against Taxpayers, refused to characterize the qui tam litigation as totally frivolous, stating:

In that it was not objectively unreasonable to have filed the qui tam suit and to have mounted a response to defendants’ motions to dismiss based on preclusion, and because the record does not support a conclusion there was some overriding need for a monetary attorney fee sanction, the trial judge abused his discretion in using his inherent power against plaintiffs as he did....

Thus, there is simply no dispute that -the written demand of taxpayers was a filing required by law, § 373, with a legislative body — the City Council of Oklahoma City. This filing falls squarely under the provision of § 1443.1, which provides that “[a] privileged publication or communication is one made ... [i]n any legislative or judicial proceeding or any other proceeding authorized by law.” This privilege, more usually examined in regard to pleadings or utterances in judicial proceedings, has been called absolute. Pryor v. Findley, 1997 OK CIV APP 74, ¶ 3, 949 P.2d 1218, 1219; Kirschstein v. Haynes, 1990 OK 8, 788 P.2d 941. The purpose of the immunity is to keep the “paths which lead to the ascertainment of truth ... as free and unobstructed as possible.” Cooper v. Parker-Hughey, 1995 OK 35, ¶ 11, 894 P.2d 1096, 1098-99 (quoting Briscoe v. LaHue, 460 U.S. 325, 332-34, 103 S.Ct. 1108, 1114-15, 75 L.Ed.2d 96 (1983)). This purpose seems equally, if not more, relevant to communications directed at a legislative body as a prerequisite to bringing a citizen lawsuit to recover money or property belonging to the state or political subdivision.

¶ 11 Burkett, acknowledging that a written demand strictly in compliance with § 373 would be privileged, claims Taxpayers’ failure to verify the demand in this instance (as specified in § 373) strips the communication of its privileged nature. We disagree. Section 1443.1 establishes the privileged nature of the communication, and that law has no requirement of verification or notarization. Furthermore, to strip away the statutory privilege, based on technical defects in a complaint or demand, would likely have a substantial chilling effect on private citizens’ use of the qui tam law. That would be an “obstruction of the path which leads to the ascertainment of truth” which the legislature certainly did not intend, and courts of this state should not countenance.

CONCLUSION

¶ 12 We find the Trial Court did not err in determining that the written demand filed by Taxpayers with the City Clerk of Oklahoma City was a privileged pubheation/communication, or in granting judgment against Burkett in this libel action. Accordingly, the judgment of the lower court is AFFIRMED.

TAYLOR, P.J., and GOODMAN, J., concur.

      . In other pleadings in related "Tal” cases, the group has called itself Taxpayers Against Ripoffs.

      . The description of events occurring hereafter is largely taken from the statement of facts in Taxpayers' motion for summary judgment. Burkett does not dispute the facts, but does claim that most are irrelevant, and that the case turns on a legal issue — whether the written demand of Taxpayers is privileged under the pertinent statutes. We agree, but recite the facts to put the litigation in perspective.

      . For disposition of that lawsuit see City of Oklahoma City v. Oklahoma City Urban Renewal Authority, 1999 OK 71, 988 P.2d 901, which has been designated "Tal 1” by the Oklahoma Supreme Court in a third "Tal” lawsuit, State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, 61 P.3d 234.

      . A qui tarn action is defined as "[a]n action brought under a statute that allows a private person to sue for a penalty, part of which the government or some specified public institution will receive.” Black's Law Dictionary, 1262 (7th Ed.1999).

      . For disposition of this lawsuit, see State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, 61 P.3d 234.


author: NEHRING, Justice:

text:
    2004 UT 21
    Teresa McBRIDE-WILLIAMS and Timothy Lee McBride, Plaintiffs and Appellees, v. G. Stedman HUARD, M.D., IHC Health Services, Inc., dba Dixie Regional Medical Center, and John Does 1 through 10, Defendants and Appellants.
    No. 20020751.
    Supreme Court of Utah.
    March 2, 2004.
    Rehearing Denied May 5, 2004.
    Matthew T. Graff, Randall C. Allen, Cedar City, for plaintiffs.
    David H. Epperson, Stephen Owens, Salt Lake City, for G. Stedman Huard, M.D.
    Brinton R. Burbidge, Paul D. VanKomen, Salt Lake City, for IHC Health Services, Inc., dba Dixie Regional Medical Center.
   NEHRING, Justice:

¶ 1 This appeal presents us with the question of whether a medical malpractice claim made by a party who files a complaint which is dismissed for failure to perform certain administrative procedures, commonly known as “prelitigation” procedures, is eligible for the one-year extension of the statute of limitations under the general savings statute of Utah Code section 78-12-40 (2003). We conclude, as did the trial court, that it is.

FACTS AND PROCEDURAL HISTORY

¶2 On October 15, 1998, Mr. Kaarman Elmo McBride died of complications after an abdominal aortic aneurysm. At the time of his death, Mr. McBride was being treated by Dr. G. Stedman Huard at the Dixie Regional Medical Center in St. George, Utah.

¶ 3 Mr. McBride’s children, Teresa McBride-Williams and Timothy Lee McBride, whom for convenience we will call “the McBrides,” filed a complaint alleging that the negligence of Dr. Huard and the hospital caused Mr. McBride’s death. Because both Dr. Huard and the hospital are health care providers, the McBrides’ claims were subject to the Utah Health Care Malpractice Act. Utah Code Ann. §§ 78-14-1 to -17 (2000). The McBrides filed their complaint on September 15, 2000, within the Malpractice Act’s two-year statute of limitations. Id. § 78-14-4(1). Dr. Huard and the hospital moved to dismiss the complaint because the McBrides had failed to comply with the litigation procedures set out in the Malpractice Act. Id. § 78-14-12. The trial court granted the motion.

¶ 4 On May 9, 2001, approximately two years and seven months after Mr. McBride’s death, the McBrides filed a notice to commence an action, the first among the preliti-gation procedures mandated by the Malpractice Act. Id. § 78-14-2(2)(b). On December 12, 2001, the Division of Occupational and Professional Licensing, the agency responsible for overseeing the prelitigation procedures under the Malpractice Act, issued the McBrides a certificate of compliance with the procedures as required by section 78-14-12(3)(c)(ii). The McBrides then filed a second complaint on January 11, 2002. Dr. Huard and the hospital moved for summary judgment. They based their motion on the contention presented to us here: that the two-year statute of limitations barred the McBrides’ claims because their first complaint did not “commence” an action and, therefore, the McBrides’ claims became time-barred as of October 15, 2000.

¶ 5 Determining that the McBrides’ first complaint “commenced” an action for the purpose of invoking the one-year savings provision of section 78-12-40, the trial court denied the defendants’ motion. We then granted the defendants’ petition for interlocutory appeal.

STANDARD OF REVIEW

¶ 6 This appeal comes to us from a denial of a motion for summary judgment in which no facts are in dispute. We review without deference the trial court’s ruling on the legal issue presented. Davis County Solid Waste Mgmt. v. City of Bountiful, 2002 UT 60, ¶ 9, 52 P.3d 1174.

ANALYSIS

¶ 7 Our analytical task requires that we interpret the word “commence” as used in our statutes and our rules of civil procedure. The general savings provision upon which the trial court relied to salvage the McBrides’ claims states:

If any action is commenced within due time and a judgment thereon for the plaintiff is reversed, or if the plaintiff fails in such action or upon a cause of action otherwise than upon the merits, and the time limited either by law or contract for commencing the same shall have expired, the plaintiff ... may commence a new action within one year after the reversal or failure.

Utah Code Ann. § 78-12-40 (2000).

¶ 8 The right to file a new action under this section requires both that an action be “commenced” and that it fail for a reason other than its merits. Rule 3(a) of the Utah Rules of Civil Procedure provides clear direction on how an action is commenced, stating that “[a] civil action is commenced (1) by filing a complaint with the court, or (2) by service of a summons together with a copy of the complaint.” Had the McBrides’ claims not been subject to the prelitigation procedures of the Malpractice Act, the general savings clause certainly would have preserved their second complaint. The McBrides filed their first complaint, and thus “commenced” their action within the two-year statute of limitations; it was dismissed for reasons unrelated to the merits, and the second complaint was filed within one year. The defendants contend, however, that the Malpractice Act incorporates its own action commencement rules which supplant rule 8(a) and place the general savings clause beyond the McBrides’ reach. Addressing the general nature and purpose of its preliti-gation procedures, the Malpractice Act states that “[t]he proceedings are informal, nonbinding, and are not subject to [the] Administrative Procedures Act, but are compulsory as a condition precedent to commencing litigation.” § 78-14-12(1)(c) (2003).

¶ 9 The defendants insist that this statutory language precludes the McBrides from resorting to the general savings clause because its language is unambiguous, its requirements mandatory, and its subject matter more specific than the provisions of rule 3(a). According to the defendants, when properly interpreted, section 78-14-12(1)(c) renders the McBrides’ first complaint a legal nullity and the subsequent running of the two-year statute of limitations presents an absolute bar to their claims. We disagree.

¶ 10 The requirements set out in rule 3 for the commencement of a civil action act independently from, but in harmony with, various preconditions to suits, including section 78-14-12(1)(c). Rule 3 sets out the manner by which a party may bring a civil matter to the attention of the court. Section 78-14-12(1)(c) does not erect a barrier at the courthouse door, barring entry to medical malpractice claimants who have failed to comply with compulsory prelitigation procedures. Claimants are at liberty to commence an action by filing and serving a complaint under rule 3 irrespective of whether they have heeded the preconditions imposed by the Malpractice Act.

¶ 11 We adopt this position without endorsing the McBrides’ apparent wholesale disregard of the prelitigation procedures mandated by the Malpractice Act. The record indicates that the McBrides were aware of the prelitigation procedures as well as the statute of limitations but chose to proceed pro se and ignore the prelitigation requirements. There is merit to the defendants’ assertion that the savings statute offers an undeserved safe harbor for their conduct. However, we believe it unwise either to abandon the savings statute in reaction to isolated egregious conduct or to judicially amend the savings statute to include a test of the worthiness of savings statute candidates. The right to commence an action under rule 3 does not, of course, implicate the merits of the claim or even suggest that the court in which the complaint is filed can exercise jurisdiction over it. Rule 3 “commencement” does, however, create the inalterable fact that a claimant has sought the intercession of the court in aid of obtaining a legal remedy. This fact cannot logically be undone and treated as though it never occurred. Yet, it is just this act of conjuring that the defendants insist is demanded by section 78-14-12(l)(c).

¶ 12 We have had previous experience in interpreting the relationship between statutory preconditions and the commencement of suits and have uniformly rejected claims that preconditions to suit should displace the effect of rule 3. See, e.g., Madsen v. Borthick, 850 P.2d 442 (Utah 1993) (Madsen III); Madsen v. Borthick, 769 P.2d 245 (Utah 1988) (Madsen II); Madsen v. Borthick, 658 P.2d 627 (Utah 1983) (Madsen I); Foil v. Ballinger, 601 P.2d 144 (Utah 1979). These cases are joined by a common assessment that statutory language creating a “condition precedent” to commencing an action creates a precondition to suit and that a party’s failure to satisfy a precondition results in an adjudication for “lack of jurisdiction” pursuant to rule 41(b) of the Utah Rules of Civil Procedure. See Madsen II, 769 P.2d at 249-50; Ballinger, 601 P.2d at 149-50.

¶ 13 We find unpersuasive the defendants’ contention that the language and intent of the Malpractice Act require us to treat differently the precondition language of section 78-14-12(l)(c). The defendants present two arguments in aid of their cause. First, they insist that the plain language of the statute sets apart the Malpractice Act’s precondi-tional mandate from those we have addressed in the past. In particular, they point to the statutory phrase which makes compliance with prelitigation procedures “compulsory as a condition precedent to commencing litigation” as evidence that the Malpractice Act supplants rule 3. If, as the defendants suggest, “compulsory” is intended to modify “condition precedent,” it is redundant. “Condition precedent” is defined as “an act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises.” Black’s Law Dictionary 289 (7th ed.1999). The nondis-cretionary nature of a condition precedent is subsumed within its definition, and pairing the term with “compulsory” adds nothing. The use of redundant statutory language would be of concern were it not for the fact that the word “compulsory” has a meaningful purpose when read within the context of the entire text of section 78 — 14—12(l)(c), which states that “[t]he proceedings are informal, nonbinding, and are not subject to [the] Administrative Procedures Act, but are compulsory as a condition precedent to commencing litigation.” When properly integrated into the text, the term “compulsory” serves as a descriptive counterweight to the definition of the proceedings as “informal” and “nonbinding” and does not modify “condition precedent.”

¶ 14 The defendants next assert that because the Malpractice Act incorporates express provisions that toll its two-year statute of limitations to make accommodation for the time expended in complying with the preliti-gation procedures, the legislature intended to preempt the savings statute. The legislature has enacted statutes of limitations specific to a wide variety of statutory and common law causes of action. See, e.g., Utah Code Ann. § 25-6-10 (2003) (statute of limitations on fraudulent transfer claims); Id. § 78-15-3 (statute of limitations on products liability claims); Id. § 78-12-48 (statute of limitations on asbestos damages claims). In each instance, the limitations period is the product of a policy assessment that includes consideration of the nature of the claim, the durability of evidence, and the impact of claims on insurance coverage, to name but a few. The savings statute similarly codifies a legislative policy judgment. We can find no inherent conflict between statutes of limitations generally and the savings statute. To the extent that they relate to one another, that tie is complementary. Absent a clear expression of legislative intent that a statute of limitations ought to preempt the savings statute, we will not block access to it. The Malpractice Act provides no clear link between its tolling provisions for prelitigation procedures and an intention to supplant the savings statute. We will not discard rule 3 and cut off access to the savings statute based on this tenuous inference of preemption.

¶ 15 The defendants supplement their argument that the Malpractice Act is uniquely crafted to overcome the savings statute with an attack on the precedential value of Madsen II. 769 P.2d 245. They point to factual distinctions which they insist disqualify Mad-sen II from consideration. In Madsen II, we held that the savings statute preserved the opportunity to prosecute claims against state officials in their individual capacities after those claims had been dismissed in an action brought against the defendants in their official capacities because the plaintiffs had failed to file notices of claim as required by the Utah Governmental Immunity Act. Id. at 252-53 (citing Utah Code Ann. 63-30-11, -12 (1979)). While it is true, as the defendants note, that we did not confront the issue of whether the savings clause would have preserved the claims had the second action required Governmental Immunity Act compliance, we stand by our view expressed in Madsen II that “[sjection 78-12-40 provides that a plaintiff whose action fails on grounds other than its merits may have one year from the date of the failure to file a new action so long as the first action was ‘commenced within due time.’ ” Id. at 254 (quoting Utah Code Ann. § 78-12-40). It is clear that Madsen I and Madsen II are premised on the assumption that the Madsen plaintiffs’ initial complaint was “commenced within due time,” despite containing only claims against the defendants in their official capacities. Had the first complaint not been “commenced within due time,” the savings clause would not have rescued the plaintiffs’ subsequent complaint, irrespective of whether the Governmental Immunity Act notice was required.

¶ 16 Finally, the defendants promote as persuasive authority an opinion from the Kansas Supreme Court which refused to extend savings statute relief to claims brought against a municipality outside the statute of limitations. Gessner v. Phillips County Comm’rs, 270 Kan. 78, 11 P.3d 1131 (2000). We note, however, that the language creating the statutory preconditions to suit at issue in Gessner does not include the term “condition precedent.” Id. at 1133. It is also noteworthy that the Gessner court relied on the legislative history of the relevant statute to guide its interpretation. Id. at 1134. We impart no deference to the pronouncements of the Kansas legislature in aid of our interpretation of Utah law. Gessner therefore has no bearing in this case.

¶ 17 In conclusion, we affirm the decision of the trial court to allow the McBrides’ second complaint to go forward under the savings provision of Utah Code section 78-12-40, holding again that the term “condition precedent” does not supersede the commencement of an action under rule 3 of the Utah Rules of Civil Procedure. The McBrides’ error in failing to comply with the proper prelitigation procedures does not prevent them from starting anew under the savings provision.

¶ 18 Associate Chief Justice DURRANT, Justice WILKINS, Justice PARRISH, and Judge ALLPHIN concur in Justice NEHRING’s opinion.

¶ 19 Having disqualified herself, Chief Justice DURHAM does not participate herein; District Judge MICHAEL G. ALLPHIN sat.