author: KAUGER, J. OPALA, J.,

text:
    2002 OK 57
    Verbon SMITH and Hazel Smith, individuals, Plaintiffs/Petitioners, v. The BAPTIST FOUNDATION OF OKLAHOMA, an Oklahoma corporation, The Baptist General Convention of the State of Oklahoma, an Oklahoma corporation, Defendants/Respondents.
    No. 97,110.
    Supreme Court of Oklahoma.
    June 25, 2002.

      Patrick O'Hara, Jr., Blake C. Parrott, Oklahoma City, OK, for Plaintiffs/Petitioners, Verbon Smith and Hazel Smith.
    Jack S. Dawson, James A. Scimeeca, Andrew D. Schwartz, Oklahoma City, OK, for Defendant/Respondent, The Baptist Foundation of Oklahoma.
    Stephen D. Beam, Weatherford, OK, for Defendant/Respondent, The Baptist General Convention of the State of Oklahoma.
   KAUGER, J.

¶ 1 The issues presented are: 1) whether all the plaintiffs/petitioners', Verbon and Hazel Smith (collectively, Smiths), claims predating January 1, 1995, against the defendants/respondents, Baptist Foundation of Oklahoma (Foundation/trustee) and Baptist General Convention of the State of Oklahoma (Convention), are time barred; and 2) if timely filed, whether lost insurance premiums may be recovered as consequential damages. Although we determine that claims relating to investment strategies predating January 1, 1995, are barred by the settlor's acquiescence in the trustee's actions, the existence of material questions of fact in relation to the settlor's notice on the issue of the trustee's handling of losses associated with the sale of mineral interests precludes the entrance of summary judgment on the claim. Further, the record presented will not support an award for lost insurance premiums as consequential damages.

FACTS

¶ 2 The Foundation is an agency of the Convention. It receives, invests and manages endowment gifts distributing the income from those gifts to Baptist causes and other designated beneficiaries. In 1984, the Foundation contacted Verbon Smith (Ver-bon) about creating a charitable trust. Ver-bon conveyed real estate valued at $494,154.00 and mineral interests sold for $94,132.00 to the Foundation, forming the Verbon Smith Charitable Remainder Uni-trust (trust) on June 19, 1984. The trust provided that Verbon receive up to eight percent of the trust's income during his lifetime. At Verbon's death, his wife, Hazel Smith (Hazel), was entitled to five percent of the income. Upon both the Smiths' deaths, the remainder was to be distributed to the Convention.

T3 Verbon became incompetent in 1994 after suffering a stroke. Hazel filed suit on his behalf in February of 1997, seeking to have the trust declared void ab imitio. In addition, Hazel asserted claims for breach of fiduciary duty, negligence, removal of the trustee and an accounting. Hazel sought no damages on her own behalf-seeking to recover only in Verbon's name. Sometime subsequent to the suit's filing, Hazel became incompetent and her granddaughter, Cheryl Kerr, was appointed as guardian ad litem. Finding that the Foundation lacked the authority to serve as a trustee when the trust was established, the trial court sustained summary judgment in favor of Verbon and ordered the trustee to return approximately $500,000.00 to the Smiths as the trust corpus. The Court of Civil Appeals reversed and remanded in Smith v. Baptist Foundation of Oklahoma (Smith I ), 2000 OK CIV APP 119, 17 P.3d 466, holding that: 1) the action "arose", for venue purposes, in the county in which Verbon entered into the trust agreement; and 2) a nonprofit corporation did not lack statutory authority in 1984, when the trust was created, to serve as trustee for an inter vivos charitable trust. The Court of Civil Appeals did not address Verbon's other theories of recovery.

T4 The trustee and the Convention filed motions for summary judgment on April 2, 2001, alleging that Verbon's claims were barred statutorily and by the equitable doe-. trine of laches. The trial court heard the matter on April 26, 2001. On November 5, 2001, it entered an order sustaining the motion as to all damages occurring before January 1, 1995. Essentially, the trial court determined that until that date, Verbon had acquiesced in the trustee's management of the trust estate. Further, the trial court found that no grounds were established for the recovery of premiums paid on certain life insurance policies purchased in conjunction with the establishment of the trust. Recognizing that barring these claims affected a substantial portion of the suit, the trial court certified the cause for immediate interlocutory appeal pursuant to 12 O0.8.2001 § 952(b)@B).

T5 On January 14, 2002, we granted cer-tiorari and ordered the preparation of the record and submission of briefs. The briefing cycle was completed with the filing of Verbon's reply brief on March 18, 2002 Although the notice of completion was filed on January 29, 2002, the record was not received from the trial court until March 29, 2002.

I.

'°6 VERBON'S KNOWLEDGE THAT POOLED INVESTMENTS WERE BEING UTILIZED BY THE TRUSTEE COUPLED WITH INFORMATION PROVIDED INDICATING THE RETURNS ON THE INVESTMENTS PRECLUDES VERBON FROM PURSUING CLAIMS DURING THE PERIOD IN WHICH VERBON, THROUGH SILENCE, ACQUIESCED IN THE INVESTMENT PROCEDURES UTILIZED.

a. Defenses to allegations of fraud or breach of trust-statute of limitations, laches and acquiescence.

¶ 7 Relying on general statements in early case law, Verbon's guardian asserts that Verbon's claims-arising from a fiduciary relationship-can never be affected by the expiration of a limitations period because the trust has not been terminated and there has been no repudiation. Similar arguments were considered and rejected in Mud Trans, Inc. v. Foster-Dickenson & Co., Inc., 1998 OK 94, 856 P.2d 282, which makes it clear that the statute of limitations begins to run on a trust beneficiary's claim when it learns it has suffered damage that might be the trustee's fault.

18 At the time this cause was filed, actions grounded in allegations of fraud or breach of trust were governed by the two-year statute of limitations found in 12 0.8. Supp.1996 § 95(3). The discovery rule allows the limitation period in certain tort cases to be tolled until the fraud is discovered or until the date the defrauded party, by the exercise of ordinary diligence, might have recognized the deception. Even where the defendant has the responsibility of a trustee towards the plaintiff, the statute starts to run when the beneficiary learns it has suffered damage that might be the trustee's fault. The question of when fraud is discovered or should have been unearthed with the exercise of ordinary diligence is one of fact dependent on the surrounding cireumstances, the relationship of the parties, and all other elements peculiar to the cause.

T9 Laches is an equitable defense to stale claims. There is no arbitrary rule for when a claim becomes stale or what delay is excusable. Application of the doctrine is discretionary depending on the facts and circumstances of each case as justice requires. As an affirmative defense, the party claiming the doctrine's benefit has the burden of proof. The party invoking the laches defense must show unreasonable delay coupled with knowledge of the relevant facts resulting in prejudice. Delay is deemed excusable if it is induced or contributed to by the adverse party. Furthermore, laches is not a defense to one lacking notice of a right to proceed or a cause of action -the elements of laches are simply not met when there is an absence of knowledge and affirmative acts to mislead.

110 Acquiescence involves a quiet submission or compliance with acts from which assent can reasonably be inferred. A person may, through long acquiescence in a practice or recognition of a right, be precluded from denying the legality of the actions taken. Equity will not deprive a party of a remedy unless it appears the party had knowledge-one cannot acquiesce in performance of an act of which the party is ignorant. Nevertheless, a beneficiary of a trust estate may be estopped from asserting a claim as against a trustee if the beneficiary accedes to the trustee's actions for an extended period of time. Under appropriate circumstances, acquiescence will support the equitable plea of laches.

b. Application of the defenses to facts surrounding the utilization of pooled investments.

111 Verbon's guardian contends that throughout the management of the trust, the trustee breached its fiduciary duties and negligently mismanaged the trust by engaging in self-dealing transactions, charging and collecting excessive fees, ignoring and/or neglecting the Smiths' individualized cireum-stances when making investment decisions and engaging in an impermissible conflict of interest between the Smiths and the Convention. Specifically, Verbon's guardian asserts that, only when suit was filed, did the Foundation provide her with information that would have alerted Verbon to the trustee's actions forming the basis of his claims. Ver-bon's guardian argues that material issues of fact exist as to whether Verbon had information sufficient to put him on notice that the trust monies had been invested in generic pooled investment funds and that the Foundation's losses on the sale of mineral interests had been charged back to the estate.

¶ 12 The trustee insists that claims regarding its investment strategies, i.e. the utilization of pooled investments, are barred by the settlor's long acquiescence in the investment procedures. We agree with this proposition. Nevertheless, we are convinced that a material fact issue exists concerning when Verbon was presented with documents which may

have advised him that losses associated with the trustee's sale of mineral interests were charged back to the trust.

113 The trust was established in 1984. The record demonstrates that as early as October 27th, 1987, Verbon was receiving quarterly activity reports from the trustee clearly denominating income as arising from pooled investments. It does not appear that Verbon inquired into the nature of these investments before he became incompetent due to a stroke in 1994. Although Hazel questioned the dropping income, the record does not denominate the date of the inquiry. The earliest that it can be established from the summary judgment record that inquiries or complaints were made about investment returns from the trust is July of 1994. Therefore, for a period of at least ten years-during which Verbon was competent except for a few months at the end of the time frame, no complaints were voiced about the trust's income production. For at least seven years, Verbon was receiving statements on the trust account indicating that income was being generated from the utilization of investment pools.

$14 Verbon's cause of action against the trustee accrued when he had sufficient information to realize that the investment strategies utilized wére not meeting his expectations. Parties refraining from the pursuit of inquiries plainly suggested by the facts may not benefit from a rule tolling the applicable statute of limitations. Therefore, we determine that Verbon's knowledge that pooled investments were being utilized by the trustee coupled with information provided indicating the returns on the investments precludes Verbon from pursuing claims during the period in which he, through silence, acquiesced in the investment procedures utilized. Any claim for damages relating to the utilization of pooled assets resulting in reduced trust income predating January 1, 1995, is barred.

IL.

115 MATERIAL ISSUES OF FACT EXIST CONCERNING WHEN VERBON WAS PROVIDED WITH A TAX RETURN WHICH MAY HAVE ALERTED HIM THAT THE TRUSTEE WAS CHARGING THE ESTATE WITH LOSSES ASSOCIATED WITH THE SALE OF MINERAL INTERESTS AND WHETHER, WHEN PROVIDED, THE RETURN WOULD HAVE ADVISED HIM OF THE NATURE OF THE TRANSACTION RESULTING IN THE LOSS, PRECLUDING SUMMARY JUDGMENT ON THESE ISSUES.

T 16 Title 60 0.8.2001 § 175.11 has been a part of Oklahoma's statutory law on uses and trusts since 1941. It provides in clear and mandatory language that no trustee shall buy trust property for itself or an affiliate. Further, the trust instrument itself prohibits self-dealing transactions. Nevertheless, the trustee's motion for summary judgment makes it clear that it engaged in a statutorily prohibited act of self-dealing in order to provide some immediate income to Verbon through the purchase of his mineral interests at $200.00 per acre for a total of $94,132.00. When it later sold some of the same mineral interests for $100.00 per acre, the trustee does not deny that it charged back a loss of $23, 391.47-not to the Foundation as owner of the properties, but to the trust estate.

¶ 17 The trustee argues that any claims associated with the sale of the mineral interests are barred by the statute of limitations or by the equitable doctrine of laches. It bases its argument on the fact that a 1984 tax return revealed the transaction to Ver-bon. Verbon's guardian asserts that there is no evidence in the record supporting the Foundation's contention that the 1984 tax return was actually provided to Verbon when it was filed and that, even if it were, it would not have advised him of the self-dealing transaction or that losses associated with the mineral interests were being charged back to the trust estate. We agree.

¶ 18 Where a trustee mishandles the subject matter of a trust or where the actions taken by the trustee are self-concealing, a cause of action will not accrue until the trustee-instituted actions are discovered or until they could have been unearthed by the exercise of due diligence. The Foundation cannot rely on the statute of limitations defense absent a showing that Verbon knew of the breach of trust-self-dealing and charging back of losses-when it occurred or was given sufficient information that he should have discovered the injury. Laches is no defense to a beneficiary who is justifiably ignorant of the trustees' default or where the default has been concealed. The question of when a beneficiary discovers or with reasonable diligence could have discovered a breach of trust is a question of fact to be determined from the parties' relationship, the nature of the acts involved, and all other cireumstances.

119 Just as the record supports the entrance of summary judgment in favor of the trustee on the issue of the manner in which investments were handled, it militates against it on Verbon's claim for losses associated with the sale of mineral interests. The record reveals that the Foundation advised Verbon on October 18, 1984, and on November 9, 1984, that the mineral interests had been transferred from the trust to "general endowment" with the trust receiving $94,132.00, or $200.00 per acre, for the sale. Nevertheless, the record is devoid of any item specifically indicating that the trust-which Verbon legitimately could have presumed no longer even held title to the mineral estate-was being charged back a loss suffered by the Foundation when the minerals were sold to a private individual.

¶ 20 The only evidence the trustee proffers to support notice to Verbon that such a charge against the trust was being taken is a 1985 tax return which indicates that the trust suffered a capital loss of $23,891.47 on the sale of "land." Although the trustee implies that Verbon was forwarded a copy of the tax return, there is nothing in the record to indicate that the return was provided to him contemporaneously with its filing -there is no copy of correspondence indicating that the document was attached for mailing to Verbon and there is no other memorial of such a mailing. The only record evidence of when tax returns were received comes from the testimony of the guardian ad litem indicating that although the Foundation failed to produce some items of third-party verification and trust information from investment personnel she had requested, the tax returns were provided sometime after April of 1995 when she became involved in the cause. Clearly, there is a question of fact concerning when Verbon may have had notice of facts sufficient to advise him that he had been harmed by the trustee's business transactions. Furthermore, nothing on the tax return indicates that the loss is associated with the sale of a mineral estate or that the loss is actually the Foundation's loss being charged back to the trust estate.

¶ 21 We are unconvinced that the bare information appearing on the 1984 tax return would have alerted Verbon that the Foundation was charging back a loss on the sale of minerals when he had previously been informed that the minerals were sold for $94,182.00. Because material issues of fact exist concerning when Verbon was provided with a tax return which may have alerted him that the trustee was charging the estate with losses associated with the sale of mineral interests and whether, when provided, the return would have advised him of the nature of the transaction resulting in the loss, we hold that summary judgment on these issues was inappropriate.

IIL

¶ 22 WHERE THE ONLY EVIDENCE THAT THE PURCHASE OF LIFE INSURANCE POLICIES WAS CONTEMPLATED FROM THE REVENUES OF THE TRUST IS A QUOTATION FROM A DEPOSITION NOT INCLUDED INTHE RECORD, LOST INSURANCE PREMIUMS MAY NOT BE RECOVERED AS CONSEQUENTIAL DAMAGES.

¶ 23 Verbon's guardian asserts that Ver-bon should be able to recover consequential damages in the nature of premiums paid for insurance on his life intended to guarantee his children an inheritance. Her theory is that the policies were cancelled or sold because the trust did not generate enough income to pay the premiums as a result of the trustee's breach of its fiduciary duty. The trustee contends that there is no basis in law or in fact for the award of insurance premiums as consequential damages.

¶ 24 Verbon's guardian's memorandum of law filed on April 26, 2001, contains quotations from the deposition of Judson Cook (Cook), the individual who first approached Verbon about the possibility of executing a trust benefitting the Convention. Those excepts contain testimony indicating that Ver-bon clearly expressed his concern that trust income should be sufficient to pay insurance premiums purchased to ensure his children an inheritance. Further, the quotation includes a statement by Cook that everyone expected the trust income to be adequate to pay the insurance premiums and to provide Verbon with income during his lifetime. Except for these quotations, the record is devoid of material to support the assertion that the insurance policies were purchased in conjunction with the execution of the trust document.

125 We are not free to take notice of any item not properly before the trial court. Evidentiary materials in the summary judgment process must be placed into the record in compliance with Rule 18, Rules for the District Court, 12 0.8.2001, Ch. 2, App. Rule 13 requires a party opposing a motion for summary judgment to file any evidence relied upon as an attachment to the pleading in opposition. All deposition material to be reviewed on appeal must be shown by the record to have been tendered for the trial court's consideration.

126 There are portions of Cook's deposition testimony attached to the trustee's motion for summary judgment and brief in support. In the attached material, Cook clearly testifies that Verboun's first intent was to care for his children. Additional pages of the deposition are attached to Verbon's guardian's response. However, the pages cited to in the memorandum of law indicating that Verbon communicated to the trustee that returns on investments should be sufficient to both pay insurance premiums on his life and provide for his income are missing from the record. They are not attached to the surreply brief and they are not located elsewhere in the record tendered.

127 The appellant bears the burden of presenting the appellate court with a record to support issues raised. Legal error may not be presumed from a silent record. Under the facts presented, where the only evidence that the purchase of life insurance policies was contemplated from the revenues of the trust is a quotation from a deposition not included in the record, we hold that lost insurance premiums may not be recovered as consequential damages.

CONCLUSION

128 A trustee is a fiduciary of the highest order in whom the hope and confidence of the settlor are placed with the expectation that the trustee will exercise the obligations of the office for the exclusive benefit of those holding beneficial interests. Without exception, a trustee owes its beneficiaries the most abundant good faith, absolute and perfect candor, openness and honesty. The trustee of a charitable trust has all the same responsibilities and duties of the trustee of a private trust. These trustees are inescapably burdened with the positive responsibility of exercising prudence in trust administration and may be subject to an even higher measure of sagacity in pursuance of the integrity required by the trust relationship. Certainly, where a settlor places property in trust with the same entity to which religious allegiance is pledged, the set-tlor should have every confidence that trust matters will be handled forthrightly.

¶ 29 In Oklahoma, charitable trusts are subject to superintendence by the appropriate district court. Courts are reluctant to apply the doctrine of laches to express trusts. The trend across the nation in both legislation and judicial decision continues to favor increased openness and disclosure in situations like this one where the trust is irrevocable-beneficiaries are entitled not only to accounting information but also to relevant information concerning the bases upon which the trustee's discretionary judgments have been or will be made. The question of laches in the enforcement of a trust should not be disposed of by summary judgment where there is a genuine issue of material fact. Nevertheless, we determine that a settlor who is advised of the nature of investments utilized and the return on those investments may not acquiesce in procedures throughout the years and preserve a cause of action.

T 30 The Court notes that the trustee apparently engaged in self-dealing transactions prohibited both by the trust agreement and by statute. Although these actions tend to demonstrate that the trustee here has not met the high standards imposed upon charitable trustees generally, we express no opinion on whether Verbon may ultimately recover on claims associated with the handling of the sale of the mineral interests and determine that the record is insufficient to avoid summary judgment on the issue of the recovery of lost premiums as consequential damages.

CERTIORARI PREVIOUSLY GRANTED; AFFIRMED IN PART, REVERSED IN PART; CAUSE REMANDED.

HARGRAVE, C.J., LAVENDER, KAUGER, BOUDREAU and WINCHESTER, JJ., concur.

WATT, V.C.J., concurs in part and dissents in part.

OPALA, J.,

dissenting:

I dissent from reviewing the certified interlocutory order; I would withdraw the earlier order that grants certiorari.

SUMMERS, J., not participating.

      . We need not determine whether, under different circumstances, lost premiums might qualify as consequential damages. Nevertheless, we note that consequential damages for breach of trust have been determined recoverable in extant jurisprudence. See, City of Dubuque v. Iowa Trust, 519 N.W.2d 786, 788-89 (Iowa 1994) [A trust provision holding trust advisors and consultants liable to trust participants for gross negligence and reckless disregard of duties suggests that consequential damages stemming from lack of access to trust funds may be recovered.].

      . Deposition of Robert L. Ross taken on January 15, 1999, providing in pertinent part at pp. 21-22:
      "... Q. As an agency of the Convention, what does The Baptist Foundation do?
      A. As an agency of the Convention, The Baptist Foundation receives, invests, manages endowment gifts and distributes the income from those gifts to Baptist causes and others that may be designated by donors...."

      . The suit is brought solely in Verbon's behalf with Hazel seeking no damages. Therefore, the plaintiffs/appellants are referred to individually except to the extent that the context requires the couple to be referred to collectively as "the Smiths." At this time, both Verbon and Hazel are incompetent. Hazel's granddaughter, Cheryl Kerr, has been appointed as guardian ad litem for the couple.

      . Title 12 0.$.2001 § 952 provides in pertinent part:
      "... (b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof:
      ... (3) Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; provided, however, that the Supreme Court, in its discretion may refuse to hear the appeal. If the Supreme Court assumes jurisdiction of the appeal, it shall indicate in its order whether the action in the trial court shall be stayed or shall continue...

      . On March 13, 2002, the Smiths filed a motion to strike the Foundation's and the Convention's answer briefs as untimely asserting that they had been filed in excess of the ten-day time limitation of Rule 1.55, Oklahoma Supreme Court Rule, 12 ©.$.2001, Ch. 15, App. Title 12 O.$.2001 § 2006(A) provides in pertinent part:
      "A. COMPUTATION. 1. In computing any period of time prescribed or allowed by this title, by the rules of any court of this state, or by order of a court of this state, the day of the act, event, or default from which the designated period of time begins to run shall not be included.... [When the period of time prescribed or allowed is less than eleven (11) days, intermediate legal holidays and any other day when the office of the court clerk does not remain open for public business until the regularly scheduled closing time, shall be excluded from the computation...."
      The Oklahoma Comment to § 2006 provides:
      ''The proposed change extends a ten day deadline from ten calendar days to two weeks to allow a party a full ten working days to meet a ten day deadline. The same change was made to Fed.R.Civ.P. 6, the federal counterpart of 12 0.8. Supp.1997 § 2006, in 1985."
      The Smiths' brief in chief was filed on February 20, 2002. When the rule for computation set forth in 12 0.9.2001 § 2001(A)(1), this note, supra, is applied to the computation for determining the outtermost date for the filing of the respective answer briefs, both the Convention's brief, filed on March 5, 2002, and the Foundation's brief, filed on March 6, 2002, are timely. KJ. Constr. v. Puente, 2000 OK CIV APP 138, 13, 16 P.3d 481. The Smiths appear to have followed the computation equation set forth in 12 O.S. § 2001(A)(1), this note supra, in filing their reply brief which was submitted five working days, and seven calendar days, after the response briefs were filed.

      . Harrison v. Eaves, 1942 OK 339, 10, 130 P.2d 841; Ludey v. Pure Oil Co., see note 7, infra; Hivick v. Hemme, 1926 OK 247, T7, 247 P. 692.

      . See, Ludey v. Pure Oil Co., 1931 OK 527, 116, 11 P.2d 102 [Where a trust or fiduciary relationship exists, the statute of limitations does not begin to run until the termination of that relationship.]; Becker v. State, 1957 OK 102, 10, 312 P.2d 935 [Statute of limitations do not begin to run in favor of trustee until the trustee clearly repudiates the trust and the repudiation is brought to the attention of the cestui que trust.]. See also, Catron v. First Nat'l Bank & Trust Co. of Tulsa, 1967 OK 107, 131, 434 P.2d 263 [In order to set statute of limitations in motion on constructive trust, clear repudiation of trust must occur and beneficiary must be aware of repudiation.].

      . See also, Kinzy v. State ex rel. Oklahoma Firefighters Pension & Retirement System, 2001 OK 24, T6, 20 P.3d 818; Dotson v. Rainbolt, 1995 OK 39, 12, 894 P.2d 1109.

      . Resolution Trust Corp. v. Greer, 1995 OK 126, 115, 911 P.2d 257; Mud Trans v. Foster-Dicken-son & Co., see note 11, infra; 12 0.S. Supp.1996 § 95(3) providing in pertinent part:
      "Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
      ... 3. Within two (2) years: ... an action for relief on the ground of fraud-the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud
      Title 60 0.$.2001 § 175.57 was enacted effective June 10, 1999. The statute contains a specific limitations period for causes of action associated with breach of trust claims. It provides in pertinent part:
      "... E. 1. Unless previously barred by adjudication, consent, or other limitation, a claim against a trustee for breach of trust is barred as to a beneficiary who has received from the trustee a report or other statement adequately disclosing the existence of the claim unless: a. a judicial proceeding to assert the claim is commenced within two (2) years after receipt of the report or statement or, if no report or statement is received, within two (2) years after the termination of the trust relationship between the beneficiary and that particular trustee, and
      b. The report or other statement informs the beneficiary of this time limitation.
      A report or statement adequately discloses the existence of a claim if it provides sufficient information so that the beneficiary knows of the claim or reasonably should have inquired into its existence. A claim thus barred does not include an action to recover for fraud or misrepresentation related to the report or other statement. ..."
      Statutes of limitation are generally considered procedural in nature and may be applied retroactively. Trinity Broadcasting Corp. v. Leeco Oil Co., 1984 OK 80, 18, 692 P.2d 1364; House of Norvelle v. Queen Ins. Co. of America, 1961 OK 249, 10, 365 P.2d 977; Sheffel v. Cities Serv. Oil Co., 1950 OK 234, 10, 222 P.2d 1024; Clark v. Keith, 1924 OK --, 1--, 229 P. 613. Nevertheless, § 175.57's inclusion of the requirement that a statement denominating the limitations period in the report to the beneficiary adds a substantive requirement not previously existing in the statutory scheme. See, Noggle v. Bank of America, 70 Cal.App.Ath 853, 82 Cal.Rptr.2d 829, 833 (1999), rehearing denied (1999), review denied (1999) [New statutory requirements for written advisory statement applied retroactively where it did not result in a change in prior law.].
      We note that the Court of Civil Appeals determined in Atwood v. Atwood, 2001 OK CIV APP 48, §25, 25 P.3d 936 that the portion of the statute authorizing the imposition of attorney fees was procedural and applied retroactively. Atwood was released for publication by order of the Court of Civil Appeals, is persuasive only, and lacks precedential effect. Rule 1.200, Supreme Court Rules, 12 0.$.2001, Ch. 15, App. 1. Nevertheless, we note that the appellate court's determination was based, in part, on our decision in Qualls v. Farmers Ins. Co., 1981 OK 61, 10, 629 P.2d 1258 determining that a statute relating to the award of attorney fees was procedural and was to be given retrospective application.

      . Digital Design Group, Inc. v. Information Builders, Inc., 2001 OK 21, §17, 24 P.3d 834; Samuel Roberts Noble Found., Inc. v. Vick, 1992 OK 140, 122, 840 P.2d 619; Reynolds v. Porter, 1988 OK 88, T 6, 760 P.2d 816.

      . Dotson v. Rainbolt, 1995 OK 39, 122, 894 P.2d 1109; Mud Trans, Inc. v. Foster-Dickenson & Co., 1993 OK 94, [ 18, 856 P.2d 282.

      . Holmes v. McKey, 1962 ok 278, 10, 383 P.2d 655; American Nat'l Bank of Enid v. Crews, 1942 OK 182, 1 0, 126 P.2d 733.

      . Sooner Federal Savings & Loan Ass'n v. Smoot, 1995 OK 31, 121, 894 P.2d 1082; Olan-sen v. Texaco, Inc., 1978 OK 139, 1 34, 587 P.2d 976.

      . Phelan v. Roberts, 1938 OK 139, 1 14, 77 P.2d 9; Nickel v. Janda, 1923 OK 944, 1 0, 242 P. 264; Harn v. Smith, 1921 OK 328, % 38, 204 P. 642.

      . Olansen v. Texaco, Inc., see note 13, supra; Marshall v. Amos, 1968 OK 86, 10, 442 P.2d 500; Crumley v. Smith, 1964 OK 218, 10, 397 P.2d 119. It is this sense of fairness that will, under appropriate circumstances, support application of the doctrine in favor of the trustee at the expense of the beneficiary-the doctrine is based on the view that it is inequitable to permit the beneficiary to surcharge the trustee when a review of the surrounding circumstances indicates that the beneficiary has unreasonably delayed the prosecution of the claim. D. Baker, "Defending the Fiduciary," 2001 Handbook-IIL CLB, 54.

      . Sooner Federal Savings & Loan Ass'n v. Smoot, see note 13, supra; Nadel v. Zeligson, 1952 OK 278, 117, 252 P.2d 140.

      . Clark v. Unknown Heirs, 1989 OK 145, 14, 782 P.2d 1384; Phelan v. Roberts, see note 14, supra.

      . Walker v. Oak Cliff Volunteer Fire Protection Dist., 1990 OK 31, ¶ 15, 807 P.2d 762; Nadel v. Zeligson, see note 16, supra.

      . Chisholm v. House, 183 F.2d 698, 705-06 (10th Cir.1950); Lawson v. Haynes, 170 F.2d 741, 744 (10th Cir.1948); Walker v. Oak Cliff Volunteer Fire Protection Dist, see note 18, supra; Phelan v. Roberts, see note 14, supra.

      . Clark v. Unknown Heirs, see note 17, supra.

      . Lewis v. Smith, 1940 OK 276, ¶ 12, 103 P.2d 512.

      . See, Independent School Dist. No. I-2 of Stephens County v. Independent School Dist. No. I-23 of Jefferson County, 1976 OK 104, ¶ 21, 553 P.2d 150.

      . Phelan v. Roberts, see note 14, supra.

      . Canning v. Bennett, 1952 OK 191, ¶ 0, 245 P.2d 1149.

      . Independent School Dist. No. I-2 of Stephens County v. Independent School Dist. No. I-23 of Jefferson County, see note 22, supra; Thomas v. United Royalty Co., 1937 OK 183, ¶ 0, 68 P.2d 490; Ammann v. Foster, 1937 OK 4, ¶ 22, 64 P.2d 653.

      . Pooled investment accounts or funds put individual small investors together with others to leverage their funds so that they can participate in investment opportunities generally unavailable to the individual small investor. See, Securities & Exchange Comm'n v. Banner Fund International, 211 F.3d 602, 614 (C.A.D.C. 2000); Matz v. Department of Treasury, 155 Mich.App. 778, 401 N.W.2d 62, 64 (1986). Pooled assets are normally placed in rautual funds or other regulated investments. See, In re Estate of Brock, 420 Pa. 454, 218 A.2d 281, 284-85 (1966).
      The settlor asserts that although the utilization of pooled investments may have been appropriate, the specific pooled investments utilized were not selected with his needs in mind. However, just as the settlor received statements showing the utilization of asset pools, he also possessed disbursements from the trustee. The two together-notice of utilization of pooled investments and the resulting income-alerted him both of the nature of investments utilized and the result of making those investments, ie. the resulting income.

      . The trustee relies on an exculpatory clause in the trust agreement for the proposition that it is not subject to liability for any action which might have arisen from negligence. The trust agreement provides in pertinent part at p. 5:
      c . 6.2 Discretion of Trustee. The Trustee shall use its best judgment in exercising the powers, discretion and rights conferred by this Agreement, and in performing its duties as Trustee which are imposed upon it by law, and, in order to feel free in doing so, the Trustee shall be exempt from liability for any action taken or omitted in good faith...."
      Nevertheless, the argument that the clause bars all lability is unconvincing. The same irust agreement contains a provision prohibiting the trustee from engaging in self-dealing. It provides in pertinent part at pp. 7-8:
      "... 8.1 ... [The Trustee shall not: ... (2) Engage in any act of self-dealing ..."

      . Defendants exhibit 2 is a letter from the trustee to Verbon dated October 27, 1987. It provides in pertinent part:
      "... Please find enclosed a report of the activity and status of your trust with the Baptist Foundation of Oklahoma, as of September 30, 1987. In the future you may expect to receive a similiar [sic]} report on your trust after the end of each quarter...."
      The report attached to the letter indicates that income of $26,169.52 was received from "pooled investments."

      . A portion of Hazel Smith's deposition is attached to the Smiths' response to the trustee's motion for summary judgment. The deposition was taken on July 24, 1997, and provides in pertinent part at p. 57:
      "... Q. Okay. Now, my question was did Ver-bon Smith ever call anybody at the Foundation and talk to them?
      ... A. No, he didn't. I don't imagine he did. I don't know. I better just say I don't know
      and at p. 11:
      "... A. And they just kept dropping, dropping, dropping, and I felt like the Baptist Foundation was doing real good, you know, but they just-and I don't know why. I don't know why that-like that and it shouldn't have been. It shouldn't have been, and we trusted them. We just trusted them, you know, and my husband and I, we didn't want to do anything, and we waited until the last minute it seemed like and we felt like we had to have some help...."

      . A letter from the trustee to the Smiths dated July 27th indicates that it is in response to inquiries about the handling of the mineral interests and problems associated with the low production of income from the cash investments. Defendant's exhibit #1 is a letter from Celinda K. Oszewski to the Smiths dated July 27, 1994, providing in pertinent part:
      66 . As I indicated last week, the mineral interests originally contributed to the above-referenced unitrust were sold in 1984 as indicated in the correspondence to you dated October 18 and November 9, 1984, copies of which are enclosed for your records....
      We fully understand the problems associated with the low production of income from the cash investments within this account of late...."

      . Mud Trans, Inc. v. Foster-Dickenson & Co., Inc., see note 11, supra. See also, Kinzy v. State ex rel. Oklahoma Firefighters Pension & Retire ment System, see note 8, supra; Dotson v. Rain-bolt, see note 8, supra.

      . Kinzy v. State ex rel. Oklahoma Firefighters Pension & Retirement System, see note 8, supra. Even if the settlor's claims were not barred by the doctrine of laches through acquiescence, it appears that the settlor had sufficient information to put him on notice of his injury and that the two year statute of limitations would have run on a substantial portion of the claimed losses before the cause was filed in February of 1997. Title 12 O.S. Supp.1996 § 95(3), see note 9, supra. Further, with reports indicating that pooled investments were being utilized as early as 1987, the settlor's cause was filed well outside the longest possible statutory bar of five years. Resolution Trust Corp. v. Greer, see note 9, supra. Title 12 0.$.2001 § 95(10) provides:
      "An action for relief, not hereinbefore provided for, can only be brought within five (5) years after the cause of action shall have accrued."

      . The trustee agrees with the trial court's finding that the defining period for barring claims due to the settlor's acquiescence in the investment strategies is January 1, 1995. The trustee's answer brief, filed on March 6, 2002, provides in pertinent part at p. 14:
      "... Verbon Smith knew for years that The Baptist Foundation was putting his trust assets in 'pooled investments.' Even if that was not a proper investment (a point which The Baptist Foundation does not concede and which Petitioner did not prove), Verbon had approved those investments-he acquiesced. So, it was reasonable for The Baptist Foundation to assume that it could continue to manage the Trust assets the same way. There is no error in the trial court's decision that any claims for damages accruing before 1995 are barred by acquiescence. ..."
      Admissions in the brief may be regarded as a supplement to the appellate record. Keating v. Edmondson, 2001 OK 110, 19, 37 P.3d 882; World Publishing Co. v. White, 2001 OK. 48, "19, 32 P.3d 835; Oklahoma Urban Renewal Auth. v. Medical Technology & Research Auth. of Oklahoma, 2000 OK 23, { 14, 4 P.3d 677.

      . Title 60 0.$.2001 § 175.11 provides:
      "No trustee shall directly or indirectly buy or sell any property for the trust from or to itself or an affiliate; or from or to a director, officer or employee of such trustee or of an affiliate; or from or to himself, a relative, employer, partner, or other business associate; provided a national banking association or a state bank and trust company performing trust functions, where acting as executor, administrator, guardian, or trustee, may sell stock of itself to one or more of its officers, stockholders, or directors upon a court of competent jurisdiction finding that such sale will be for the best interest of the trust estate and making an order for such sale."

      . The use of "shall" generally signifies a legislative command. Davis v. GHS Health Maintenance, 22 P.3d 1204, 2001 OK 3, 19; United States through Farmers Home Admin. v. Hobbs, 1996 OK 77, 17, 921 P.2d 338; State ex rel. Macy v. Freeman, 1991 OK 59, T8, 814 P.2d 147. Nevertheless, the term can be permissive. Minic v. Hudson, 1997 OK 26, T7, 934 P.2d 1082; Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, 19, 619 P.2d 869.

      . See note, 27, supra.

      . The trustees motion for summary judgment and brief in support, filed on April 2, 2001, provides in pertinent part at p. 1:

        "... The Foundation transferred the mineral interests from Smith's farms to the Foundation for the sum or $200 per acre for a total of $94,132..."

      . American Nat'l Bank of Enid v. Crews, 1942 OK 182, ¶ 21, 126 P.2d 733.

      . Dotson v. Rainbolt, see note 8, supra; Mud Trans, Inc. v. Foster-Dickenson & Co., see note 11, supra.

      . Digital Design Group, Inc. v. Information Builders, Inc., see note 10, supra; Samuel Roberts Noble Found., Inc. v. Vick, see note 10, supra; Reynolds v. Porter, see note 10, supra.

      . Chisholm v. House, 183 F.2d 698, 705-06 (10th Cir.1950); Restatement 2nd Trusts § 219 (1957).

      . Holmes v. McKey, see note 12, supra; McNeal v. Steinberger, 1943 OK 99, ¶ 4, 135 P.2d 490.

      . The trustee's answer brief, filed on March 6, 2002, provides in pertinent part at p. 11:
      "... The same is true for the allegations made about the mineral interest transactions. The tax return provided to Verbon Smith for 1985 shows the capital loss of more than $23,000 associated with the mineral transactions. Again, this was enough information to put Ver-bon Smith on notice of the way the transaction was handled. Had he asked back in 1985, the transaction either was, or could have been, explained to him...."

      . Deposition of Cheryl Kerr, taken on February 23, 1999, providing in pertinent part:
      at p. 41: "... Q After you became involved in April of '95, did the Baptist Foundation ever refuse to furnish information to you or Mr. Breeze or to the Smiths?
      . A No, they didn't provide everythmg we asked for, but they didn't refuse..
      at pp. 63-64: " Q Page 3 is a hst of items that you requested?
      A Yes.
      Q Were all of those made available to you?
      A No.
      Q Okay.
      A They provided us with the tax returns, the general ledgers, the unitrust spreadsheets...."

      . Plaintiff's Memorandum of Law, filed on April 26, 2001, providing in pertinent part at p. 3:
      . Based on Judson Cook's explanation of the arrangement, Verbon Smith expected that the trust would generate enough income to pay the insurance premiums and meet his living expenses:
      [Deposition of Judson Cook, p. 33, In. 21-p.34, In. 3]
      Q: But was it-from these discussions, was it-do you recall that it was everyone's expectation that the trust could generate sufficient income to meet these obligations, the obligations of the insurance policies and taking care of Mr. Smith for the rest of his life until death? Is that the concept that was discussed?
      A: Yes, it was...."

      . Davis v. Fieker, 1997 OK 156, 16, 952 P.2d 505; Anderson v. Eichner, 1994 OK 136, 1 6, 890 P.2d 1329; Hulsey v. Mid-America Preferred Ins. Co., 1989 OK 107, 17, 777 P.2d 932.

      . Rule 13, Rules for the District Court, 12 O.S. 2001, Ch. 2, App. provides in pertinent part:
      "... b. In the statement, the adverse party or parties shall set forth and number each specific material fact which is claimed to be in controversy and reference shall be made to the pages, paragraphs, and/or lines of the depositions, admissions, answers to interrogatories and to requests for admissions, affidavits, exhibits and other material either filed by the moving party or by the adverse party, and he {[sic] shall attach to the statement the portions relied upon...."
      Anderson v. Eichner, see note 40, supra.

      . Anderson v. Eichner, see note 40, supra.

      . Deposition of Judson Cook taken on September 29, 1998, providing in pertinent part at p. 11:
      "... Q What do you think he wanted, what was his 'main purpose in doing this, as he expressed to you?
      A Okay. He-his first objective was to take care of his children, and then he wanted to provide the future-have a part in providing for the future of Baptist agencies and institutions...."

      . Jackson v. Jackson, see note 45, infra; Bailey v. Bailey, 1994 OK 6, \ 14, 867 P.2d 1267 [Superseded by statute on other grounds.].

      . Jackson v. Jackson, 2002 OK 25, 1 12, 45 P.3d 418; Younge v. Younge III, 2002 OK 12, 114, 41 P.3d 966.

      . First Nat'l Bank of Wichita Falls v. Stricklin, 1959 OK 208, 1 0, 347 P.2d 652.

      . State ex rel. Oklahoma Bar Ass'n v. Wallace, 1998 OK 65, 10, 961 P.2d 818; Panama Processes v. Cities Serv. Co., 1990 OK. 66, 135, 796 P.2d 276.

      . Harrison v. Barton, 1960 OK 256, ¶ 38, 358 P.2d 211.

      . Title 60 § 175.23; Wilkin v. R.H. Wilkin Trust, 261 F.Supp. 977, 981 (W.D.Oka.1966).

      . Stephenson v. Stephenson, 351 Mo. 8, 171 S.W.2d 565, 568 (1943). See also, Bogert, Trusts & Trustees, § 948 (Rev.2d ed.).

      . E. Halbach, "Uniform Acts, Restatements, & Trends in American Trust Law at Century's End," 88 CaLL.Rev. 1877, 1913 (Dec.2000).

      . See, Baskin v. Griffith, 127 So.2d 467, 474 (Fla. See also, Wallace v. Timmons, 232 S.C. 311, 101 S.E.2d 844, 847 (1958) [Defense of laches should not be disposed of on a demurrer where the complaint alleged some explanation of the reason for failure to attempt to enforce the trust earlier.].

      . See, 116, supra, and accompanying footnotes.


source: Caselaw Access Project

author: JOE C. TAYLOR, Presiding Judge.

license: Public Domain

text:
    2002 OK CIV APP 72
    STATE of Oklahoma ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff/Appellee, v. OPUBCO, INC., a Delaware Corporation; and the County Treasurer for Oklahoma County, Defendants, and Patricia Presley, Oklahoma County District Court Clerk, Real Party In Interest/Appellant.
    No. 96,537.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    April 23, 2002.
    Certiorari Denied June 25, 2002.
    Mark J. Caywood, Mark James Caywood, PLLC. Oklzhoma City, OK, for Plaintiff/ Appellee.
    Timothy E. Rhodes, Oklahoma City, OK, for Real Party In Interest/Appellant.
   Opinion by

JOE C. TAYLOR, Presiding Judge.

{1 The Court Clerk of Oklahoma County (Court Clerk) seeks review of the trial court's denial of its motion seeking court costs from the State of Oklahoma ex rel. Department of Transportation (ODOT). Based on our review of the record, the parties' briefs, and the applicable law, we affirm.

12 This matter originated as a condemnation proceeding filed by ODOT against OPUBCO, Inc., in January 1999. The property at issue was appraised and a commissioners' report was filed. ODOT objected to the commissioners' award and filed a demand for a jury trial. The demand was subsequently withdrawn, pursuant to an agreed settlement with OPUBCO, for an amount less than the commissioners' award. Court Clerk thereafter filed a motion seeking a court order requiring ODOT to pay statutory court filing costs pursuant to 28 0.8.2001 §§ 152 and 152.3. The trial court denied the motion, relying on a 1978 opinion of the Oklahoma Attorney General, Op. 78-280, which construed 69 O.S. Supp.1978 § 1203(f) as exempting ODOT from lability for court costs and poundage fees in condemnation cases, except "in the event of an appeal resulting in a jury verdict in excess of the commissioners' original award."

18 This appeal followed, with Court Clerk asserting the trial court erred by failing to reject the Attorney General's interpretation, and by refusing to assess court costs against ODOT pursuant to state statutes. The issue for review thus requires us to examine the Attorney General opinion and construe the state statutes on which the trial court's and the Attorney General's respective decisions were based. Statutory construction presents an issue of law for resolution and therefore is reviewed de novo on appeal. Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, ¶ 5, 895 P.2d 731, 732-33 (approved for publication by the Oklahoma Supreme Court). An appellate court claims for itself plenary, independent, and non-deferential authority to re-examine legal rulings. Id. at ¶ 5, 895 P.2d at 733.

[ 4 There are a number of Oklahoma statutes relevant to resolving the issue in the case at bar. First, however, we note the general principle, also true at common law, that the state as sovereign is not liable for costs in the absence of a statute authorizing an award of costs against the state in specific circumstances. See State ex rel. Dep't of Highways v. Marshall, 1974 OK 150, ¶ 2, 530 P.2d 1023, 1024; State ex rel. Dep't of Pub. Safety v. $5,809.00 in U.S. Currency, 1991 OK CIV APP 82, ¶ 5, 817 P.2d 750, 751; 20 Am.Jur.2d Costs § 39 (1995); but see Sholer v. State ex rel. Dep't of Pub. Safety, 1999 OK CIV APP 100, ¶¶ 17-19, 990 P.2d 294, 300.

T5 In Oklahoma, a number of statutes have been enacted to serve this function. Title 12 0.8.2001 §$ 66(A), though it exempts state agencies from pre-paying, or advancing, court costs, further provides that, in the event of "an adverse decision," costs are taxable against the state, and in its final order the court should direct "the nonprevail-ing party to pay all costs of the action." Title 28 0.8.2001 $ 152(A) imposes certain flat fees as mandatory, non-refundable court costs in certain cases, including condemnation proceedings, and 28 0.8.2001 § 152.3, dealing specifically with court costs in condemnation proceedings, provides that "[elv-ery condemnor, be it the state, a political subdivision thereof, or a private entity," is liable for court costs in such proceedings. Section 152.3 also allows public entities such as,0 DOT, which are "restricted by law from advancing costs," to file condemnation proceedings without pre-payment of costs, though at the termination of the case "the court clerk will render to the condemnor an itemized bill for costs and shall claim payment of all costs due in the case."

16 Particularly. applicable to this matter is 69 0.8.2001 § 12083(f), which states, with reference to costs related to district or appellate court review of a commissioners' award in ODOT condemnation cases, that:

[In no case shall the [ODOT] be liable for the costs on such review or appeal unless the owner of the real property shall be adjudged entitled, upon either review or appeal, to a greater amount of damages than was awarded by the commissioners. The [ODOT] shall in all cases pay the cost of the commissioners' fees and expenses, for their services, as determined and ordered paid by the judge of the district court in which such case is pending, however, poundage fees and condemmation fees shall only be paid by the [ODOT] in the event of appeal resulting in a jury verdict in excess of the commissioners' award....

(Emphasis added.)

¶ 7 Enacted as part of the Oklahoma Highway Code in 1968, § 1203(f) at the time contained a provision stating that ODOT "shall in all cases pay the costs and expenses of the first assessment." The statute was based on a prior version of the statute that had been adapted from a state law concern-costs only in the event of "an adverse decision." None of the situations contemplated by the statutes for imposition of costs against ODOT is presented in the case at bar, where the parties reached a settlement for less than the commissioners' award, prior to an award by verdict.

ing condemnation by railroad corporations, and which was repealed and reenacted as part of the Highway Code of 1968. State ex rel. Dep't of Highways v. Marshall, 1974 OK 150, 118-11, 530 P.2d 1023, 1025-26. The prior version of the law had been interpreted generally as requiring a condemning authority to pay all of the costs associated with the initial filing of condemnation proceedings, including court costs and the court clerk's poundage fee. See Grand River Dam Auth. v. Grand-Hydro, 1941 OK 79, 111 P.2d 488; Kelly v. Okla. Turnpike Auth., 1954 OK 112, 269 P.2d 359.

T8 It was not until 1974, however, in Marshall, that the Oklahoma Supreme Court found "express authority" in § 1203(f) specifically requiring the state Highway Department (now the ODOT) to pay all "costs and expenses of the first assessment," 1974 OK 150, 113, 530 P.2d at 1025, and held that ODOT was lable not only for poundage fees but also for initial filing costs in the case.

T9 In the following year, 1975, the Oklahoma Legislature amended § 1208(f) by deleting the phrase stating that ODOT would "in all cases pay the costs and expenses of the first assessment," and by adding the phrase, "however, poundage fees and condemnation fees shall only be paid by the [ODOT] in the event of appeal resulting in a jury verdict in excess of the commissioners' Award...." 1975 Okla. Sess. Laws ch. 277 § 1. The measure was enacted as an emer-geney measure effective June 1, 1975, and, given its timing, appears to have been in direct response to the Marshall decision, which was issued November 26, 1974. Later in 1975, the legislature enacted § 152.3, which was not effective until October 1, 1975, and as noted above specifically provides that all condemnors, including the state, "shall be liable for poundage fee and court costs" except in certain situations involving inverse condemnation.

{10 In 1978, the Attorney General interpreted these two statutory provisions in answer to a question asking whether 69 O.S. Supp.1978 § 1208(f) or 28 0.8. Supp.1978 § 152.3 prevailed "in determining under what conditions, court costs and poundage fees should be paid" by ODOT in condemnation cases. The Attorney General reconciled the apparent conflict in the statutes by opining that, under rules of statutory construction, the specific prevails over the general, and, because § 1203(f) dealt specifically with the conditions under which ODOT would be liable for "poundage and condemnation fees," ODOT would be liable "for court costs and poundage fees only in the event of an appeal resulting in a jury verdict in excess of the commissioners' original award." Implicit in the Attorney General's conclusion is a determination that "court costs" were included in the term "condemnation fees."

T11 Although an opinion by the Attorney General construing a state statute is not controlling, and the final construction of a statute rests with the court, the Attorney General's opinion is accorded great respect. State ex rel. John L. Clifton, Dist. Attorney v. Reeser, 1975 OK 126, 180, 548 P.2d 1879, 1884. In this instance we agree with the Attorney General's conclusion. As noted in its opinion, the primary goal of statutory construction is to ascertain the intent of the legislature. "The fundamental rule of statutory construction is to ascertain and, if possible, give effect to the intention and purpose of the Legislature as expressed in the statute." Jackson v. Indep. Sch. Dist. No. 16, 1982 OK 74, 1 4, 648 P.2d 26, 29. It also is a general rule of construction that where two statutes deal with the same subject matter, one specific and one general, the specific statute controls, with both provisions being given harmonious effect. City of Tulsa v. Smittle, 1985 OK 837, 117, 702 P.2d 867, 371; Beidlemam v. Belford, 1974 OK 72, 1 17, 525 P.2d 649, 651.

1 12 Reading the foregoing statutory provisions as a whole, and considering also the legislative reaction to the Supreme Court's decision in Marshall, we agree that the statute specifically on point with this situation, § 1203(f), imposes liability on ODOT for court costs only when a property owner is adjudged as being entitled to an amount greater than the commissioner's original award. The general tenor of the other procedural statute on costs is consistent with this view as well, with 12 0.8.2001 § 66 contemplating liability against the state for

¶ 13 As noted above, it is implicit in the Attorney General's opinion and in our decision here that the phrase "condemnation fees" in § 1203(f) encompasses and includes the "court costs" associated with initial filing of a condemnation proceeding. The phrase "condemnation fees" is not defined in state statutes or prior case law. The plain meaning of the term appears to refer, without limitation, to all fees which might be associated with a condemnation proceeding in addition to the clerk's poundage fee. The parties direct us to no authority that would exclude "court costs" from being considered as just one of the many fees or potential fees associated with condemnation proceedings and, in fact, do not specifically argue this point at all. We thus consider court costs to be part and parcel of the "condemnation fees" referenced in § 1208(f) as being payable by ODOT "only . in the event of appeal resulting in a jury verdict in excess of the commissioners' award."

¶ 14 We also note the Oklahoma Legislature, in another area, dealt specifically with the handling of costs in a situation in which the condemning authority and a landowner reach a settlement before trial. This is in the area of inverse condemnation, where 27 ©.8.2001 § 12 provides that the court rendering judgment for a plaintiff in an inverse condemnation case, or the "state's attorney effecting a settlement" of such a proceeding, "shall determine an award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court or the acquiring entity's attorney ... reimburse such plaintiff for his reasonable costs, disbursements and expenses" incurred because of the proceeding. (Emphasis added.) Section 12 was enacted in 1972, and the Oklahoma Legislature presumably was aware of it in 1975, when it wrote and enacted 28 0.8. Supp.1975 § 152.3 and amended 69 0.8. Supp.1975 § 1203(f), yet it did not include a similar provision in the latter statutes. "[Llegislative silence, when it has authority to speak, may be considered as giving rise to an implication of legislative intent." City of Duncan v. Bingham, 1964 OK 165, ¶ 12, 394 P.2d 456, 460.

[ 15 A state generally is not liable for costs in the absence of a specific authorizing statute. Here, in the situation presented, there is no specific statutory directive authorizing costs to be imposed against ODOT; in fact, the opposite situation appears to be the case. Therefore, ODOT is not required to pay court costs in a situation where it settles a case for less than the commissioners' original award to the land owners. The trial court's determination is, accordingly, affirmed.

T 16 AFFIRMED.

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

      . Our recitation of the facts and procedural filings preceding the Court Clerk's motion is based in large part on the undisputed facts gleaned from the parties' appellate briefs. See Brock v. Thompson, 1997 OK 127, n. 4, 948 P.2d 279, 283 (admissions made in briefs considered as supplementing and curing an otherwise deficient appellate record).


author: KENNETH L. BUETTNER, Judge. JOPLIN, V.C.J.,

text:
    2002 OK CIV APP 73
    Terri ROBERTS, individually, and as mother and next friend of Rachel Roberts and Taylor Roberts, Plaintiff/Appellant, v. GOODNER'S WHOLESALE FOODS, INC., d/b/a Buy For Less, and John E. Roberts, Defendants/Appellees.
    No. 96,649.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    April 26, 2002.
    Certiorari Denied July 2, 2002.

      Laurie W. Jones, Robin A. Wiens, Welch & Smith, P.C., Oklahoma City, OK, For Plain-tif{/ Appellant.
    Richard Glasgow, King Law Firm, Oklahoma City, OK, For Defendants/Appellees.
   Opinion by

KENNETH L. BUETTNER, Judge.

¶ 1 Terri Roberts (Mother), individually and as mother and next friend of Rachel Roberts and Taylor Roberts (Daughters), sued Goodner's Wholesale Foods, Inc. d/b/a Buy For Less, and John E. Roberts (respectively, Store and Roberts, or collectively, Defendants) for malicious prosecution, false arrest, false imprisonment, defamation, and abuse of process as a result of Store's detention of Mother and Daughters-through Roberts-and subsequent criminal charges against Mother for petty larceny. The trial court granted Defendants' Motion for Summary Judgment based on the presence of probable cause. We affirm.

¶ 2 On August 6, 1996, Mother and her eight- and four-year-old daughters went to the Store in Norman, at approximately 10:00 pm. Roberts, Store's security guard, observed Mother in an isolated part of Store placing packs of cigarettes from her shopping cart into her purse. When Mother failed to pay for the cigarettes, Roberts detained her after checkout and determined that five of the seven packages of cigarettes had Store's "mark" on them. Mother and Daughters were detained pending arrival of a Norman police officer who issued Mother a citation for petty larceny and allowed her to leave.

¶ 3 Upon filing of municipal misdemeanor charges the City Attorney and Mother's counsel reached an agreement, under which Mother agreed to forego any civil action against Store and the City Attorney agreed to dismiss the eriminal charge. The City Attorney did in fact dismiss the eriminal charge against Mother without prejudice. There is no evidence that Store was made aware of the agreement and dismissal.

¶ 4 Mother thereafter filed a civil action against Store. When Store was served, it inquired into the status of the criminal charge and, upon learning it had been dismissed without prejudice, sought to refile it with the agreement of the City Attorney. After the criminal charge was refiled, Mother dismissed the civil action. Mother was ultimately tried and acquitted on the refiled criminal charge in 1998. She then filed a second civil action against Store and Roberts in 1999. Store filed its motion for summary judgment, asserting it had probable cause to detain Mother on a shoplifting complaint. The trial court agreed, granted judgment to Store, and Mother appeals.

¶ 5 In this accelerated review proceeding, Mother asserts that the evidentiary materials on summary judgment demonstrate a question of fact on the existence of probable cause for her detention. Particularly, Mother avers her evidentiary materials establish that she purchased the cigarettes during a previous visit to Store in preparation for a trip; that she therefore had seven packs of cigarettes in her purse (five from Store, two bought elsewhere), as well as candy, children's medicines, and other goods in her purse at the time of her detention; and that she was observed putting the cigarettes in her purse after her children turned the purse over and spilled its contents out into the shopping cart. Mother also complains that Roberts refused to let her take her daughter to the rest room and instead had a female Store employee escort the child. While Mother insists she was not allowed to call someone to pick Daughters up, Roberts insists he would have allowed that request.

¶ 6 False arrest has been defined as "an unlawful restraint of an individual's personal liberty or freedom of locomotion.... An arrest without proper legal authority is a false arrest and because an arrest restrains the liberty of a person it is also a false. imprisonment." Black's Law Dictionary (5th Ed.1979). This court has held that an arrest without probable cause is a false arrest. See Overall v. State, 1995 OK CIV APP 107, 910 P.2d 1087. In an action for false arrest, a plaintiff has the burden of proving lack of probable cause. Irwin v. SWO Acquisition Corp., 1992 OK CIV APP 48, 830 P.2d 587, 590. In an action for malicious prosecution, the burden rests on the plaintiff to prove 1) that the defendant maliciously instituted the action; 2) without probable cause; 3) which the plaintiff successfully defended; and 4) with resulting damage to the plaintiff. Callaway v. Parkwood Village, L.L.C., 2000 OK 24, 1 P.3d 1003, 1005, n. 1. Finally, the elements of an abuse of process claim are 1) the improper use of the court's process; 2) primarily for an ulterior or improper motive; 3) with resulting damage to the plaintiff, Id., 1 P.3d at 1004.

¶ 7 "Probable cause" is defined as "reasonable cause" or "an honest suspicion or belief ... founded upon facts sufficiently strong to warrant the average person in believing the charge to be true," and the existence of probable cause is a complete defense. Lewis v. Crystal Gas Co., 1975 OK 26, 532 P.2d 431, 433. (Emphasis supplied). The following statutory provision is applicable in the instant case:

Any person concealing unpurchased merchandise of any mercantile establishment, either on the premises or outside the premises of such establishment, shall be presumed to have so concealed such merchandise with the intention of committing a wrongful taking of such merchandise ..., and such concealment or the finding of such unpurchased merchandise concealed upon the person or among the belongings of such person shall be conclusive evidence of reasonable grounds and probable cause for the detention in a reasonable manner and for a reasonable length of time, of such person by a merchant, his agent or employee, and any such reasonable detention shall not be deemed to be unlawful, nor render such merchant, his agent or employee criminally or civilly liable. (Emphasis added.)

22 0.8.1991 § 1344. This statute has been held to create a presumption of probable cause to protect a merchant in a civil suit for false imprisonment. Matter of L G.M., 1985 OK CR 97, 704 P.2d 88, 90. It has also been held that in an action for malicious prosecution, whether probable cause exists is a question of law for the court. Ewing v. Kutch, 1958 OK 214, 330 P.2d 361, 362, citing Hopkins v. Stites, 70 Okla. 177, 173 P. 449 (1918). Additionally, the fact that a plaintiff has been bound over for trial on the criminal matter constitutes prima facie evidence of the existence of probable cause for the detention. See Delong v. State, ex rel. Okla. Dept. of Public Safety, 1998 OK CIV APP 32, 956 P.2d 937 (affirmed summary judgment in favor of State on issue of probable cause in false arrest case, based on finding that nolo contendere plea in the underlying criminal matter established probable cause to arrest.); Christopher v. Circle K Convenience Stores, Inc., 1997 OK. 27, 937 P.2d 77 (in false arrest case, summary judgment in favor of merchant was affirmed based on finding that plaintiff being bound over for trial in the underlying criminal matter barred relit-igation of the existence of probable cause); James v. Southwestern Ins. Co., 1960 OK 164, 354 P.2d 408, 412. Nor does later acquittal on the underlying criminal charge establish want of probable cause. Missouri Kansas and Oklahoma Coach Lines v. Meister, 1958 OK. 227, 330 P.2d 579.

¶ 8 In the present case, Roberts witnessed Mother in a vacant aisle, checking behind her, placing the packages of cigarettes in her purse from the shopping cart in which Daughters were sitting, proceeding through the checkout line and not paying for the cigarettes. Mother claimed that she purchased the cigarettes from Store and elsewhere several days earlier, that she simply put the seven packs of cigarettes in her purse along with numerous other items, and that Roberts merely observed her replacing the cigarettes in her purse after Daughters spilled them out. While Mother's statements created a factual dispute as to whether she was guilty of larceny, which was successfully resolved in her favor in the criminal trial, the observations by Roberts were sufficient to establish an honest suspicion that Mother concealed merchandise with the intention of committing a wrongful taking, ie. probable cause to proceed with a criminal complaint.

T 9 We find the trial court correctly determined probable cause existed as a matter of law. Because probable cause is a complete defense to the claims made in the instant case, summary judgment in favor of Defendants is AFFIRMED.

JONES, J., concurs.

JOPLIN, V.C.J.,

dissents:

T10 I dissent. In the present case, the store security guard attested that he observed Plaintiff in a vacant aisle, checking behind her, and placing the packages of cigarettes in her purse from the shopping cart in which her children were sitting. However, the security guard did not witness Plaintiff taking the cigarettes from a store shelf and placing them in her purse, a fact which the materials suggest the guard may or may not have revealed to the City attorney before filing (or refiling) of the criminal charges. Moreover, Plaintiff claimed that she purchased the cigarettes from Store and elsewhere several days earlier, that she simply put the cigarettes in her purse along with numerous other items, and that the guard merely observed her replacing the cigarettes in her purse after her children spilled them out. Given these facts, I believe reasonable people might differ on whether the guard had probable cause to detain Plaintiffs. I would consequently hold the order of the trial court granting Defendant's motion for summary judgment should be reversed and the cause remanded for further proceedings.

      . Mother apparently abandoned the defamation claim. '

      . The matter stands submitted for accelerated appellate review on the trial court record under Rule 13(h), Rules for District Courts, 12 O.S. Supp.1993, Ch. 2, App., and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp.1997, Ch. 15, App.

      . Although false arrest and false imprisonment are often used interchangeably, "there is a distinction in the manner in which causes of action for false arrest and false imprisonment arise .... in a false arrest, false imprisonment exists, but the detention is by reason of an asserted legal authority to enforce the processes of the law; in a false imprisonment, the detention is purely a matter between private persons for a private end, and there is no intention of bringing the person detained before a court, or of otherwise securing the administration of the law." McGlone v. Landreth, 1948 OK 85, 195 P.2d 268, 271, 200 Okla. 425, citing 22 Am.Jur., p. 354, § 3.

      . While Roberts insists Mother looked around and then put the cigarettes in her purse, Mother is equally insistent that she looked around after the fact.


author: CAROL M. HANSEN, Presiding Judge:

text:
    2002 OK CIV APP 74
    John ALLEN, Petitioner, v. LENAPE LURE COMPANY, First Nations Compensation Plan and The Workers' Compensation Court, Respondents.
    No. 97,084.
    Court of Civil Appeals of Oklahoma, Division No. 8.
    April 26, 2002.
    Certiorari Denied July 2, 2002.

      Walt Brune, Fred L. Boettcher, Ponca City, OK, For Petitioner.
    Mark K. Blongewicz, Robert P. Fitz-Pat-rick, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, OK, For Respondents.
   Opinion by

CAROL M. HANSEN, Presiding Judge:

T1 In seeking review of the Workers' Compensation Court's order denying his claim, Petitioner, John Allen (Claimant), contends the court misinterpreted 85 0.8.1991 §§ 65.2 and 65.8, which together are referred to as the "estoppel act." Section 65.2 provides:

Every employer and every insurance carrier who schedules any employee as a person employed by the employer for the purpose of paying or collecting insurance premiums on a Workmen's Compensation insurance policy or who pays, receives or collects any premiums upon any insurance policy covering the liability of such employer under the Workmen's Compensation law by reason of or upon the basis of the employment of any such employee shall be estopped to deny that such employee was employed by the employer in a hazardous employment subject to and covered by the Workmen's compensation law if such person receives an accidental personal injury arising out of and in the course of his employment, during the period for which such premium was so received, regardless of the type of business in which the employer was engaged or the type of employment in which the employee was engaged at the time of such injury.

¶ 2 Where, as here, the issues presented turn on interpretation of statutes, such issues are questions of law, and we will examine the Workers' Compensation Court's ruling independently with no deference given to that ruling. Fink v. State ex rel. Department of Public Safety, 1992 OK CIV APP 169, 852 P.2d 774.

¶ 3 The facts here are essentially undisputed. Claimant was an employee of the Le-nape Lure Company, one of the names under which the Delaware Tribe of Oklahoma (the Tribe) does business. On January 11, 2001, while employed by the Tribe and on its premises, Claimant slipped on some ice and was injured. From the date of injury to February 22, 2001, the Tribe, paid Claimant "wages in excess of $1,500.00", although he was off work with the injury at the time. From the latter date, the Tribe's insurance carrier, First Nations Compensation Plan (First Nations), paid Claimant four "additional" weeks temporary total disability compensation totaling $672.00.

¶ 4 In response to Claimant's Form 8, the Tribe filed its answer admitting Claimant was its employee, but denying injury and coverage under the Workers' Compensation Act, The Tribe asserted non-compensability due to "neutral risk", and lack of jurisdiction, alleging tribal sovereign immunity. After filing its answer, the Tribe moved to dismiss, both as to itself and First Nations.

¶ 5 After presentation of evidence, the trial court entered its order finding Claimant's injury, which occurred while he was returning from the restroom on a direct route back to his duty station, arose out of and in the course of his employment. The trial court found at the time of injury the Tribe had in foree a workers' compensation insurance policy from First Nations . The trial court further found while the Tribe is a sovereign Indian nation immune from Oklahoma workers' compensation liability, First Nations was estopped in accordance with 85 ©.8.1991 §§ 65.2 and 65.3 from denying liability. The trial court dismissed the Tribe, but ordered First Nations to pay compensation to Claimant.

¶ 6 First Nations filed an appeal to a three-judge panel of the Workers' Compensation Court,. The three-judge panel, with one judge dissenting, vacated the order of the trial court. Citing Dominic v. Creek Nation, 1997 OK 41, 986 P.2d 985, the panel found Claimant had failed to satisfy his burden of establishing First Nations' insurance premiums were calculated in part upon Claimant's salary. Claimant seeks review of the order of the three-judge panel.

¶ 7 In Dominic, the State Insurance Fund carried the tribe's workers' compensation insurance, basing its premiums on the salaries of the tribe's employees. The Oklahoma Supreme Court reversed the trial court and the three-judge panel and vacated the Court of Civil Appeal's opinion, all of which had found the claimant was not covered because the tribe was not an "employer" under the Workers' Compensation Act.

¶ 8 The Dominic Court held the State Insurance Fund was "statutorily estopped" to deny the tribe's "cover-employed status" pursuant to §§ 65.2 and 65.3. The Court stated the purpose of statutory estoppel is to prevent both an employer's and an employee's ensnarement in the false belief that compensation had been provided, only later to discover the protection to be unavailable.

¶ 9 Noting the tribe's claim of sovereign immunity was not at issue, Justice Opala, writing for the Court, focused on the rights of the injured claimant against the tribe's insurer. These rights, he stated, were statutory rather than contractual. The decision held that the claimant who relies upon estop-pel must show (1) an injury that occurred during the time his employer maintained a compensation liability policy, (2) the insured employer's payment of premiums based the claimant's salary, and (8) the claimant's injury occurred in and arose out of her employment with the insured employer. "This proof brings the insurer under the estoppel act's compensation liability."

¶ 10 First Nations claims the second element above is missing in Claimant's case. In fact, in its brief, it acknowledges it "specifically modified the method by which it caleu-lated premiums and charged its customers" to avoid coverage under Dominic. "Rather than calculate those premiums based on the wages of salaries of particular tribal employees, First Nations instead calculated premiums based on the number of employees and their various job classifications."

¶ 11 The effect of First Nations formulation, whether intended or not, allows it to use its insured's immunity to deny Workers' Compensation coverage to any or all of the Tribe's employees, notwithstanding that it admittedly had collected premiums based on each of those employees. We find this result contrary to the letter and spirit of the estop-pel act. We do not believe either the Legislature or the Supreme Court designed or interpreted the statutes to provide an "out" for a tribe's insurance carrier.

¶ 12We agree with the trial court that Dominic and related cases are good law, but the formalistic distinction drawn by First Nations is irrelevant. As the trial court noted, "Itlhe fundamental basis for estoppel is that the premium paid for coverage is based upon the fact of claimant's employment and the activities performed." The result would be different if First Nations, as did the State Insurance Fund in Dominic, computed its premiums based on salaries of its employees, and Claimant's salary was not included.

¶ 13 If a carrier does set its premiums for a tribe, or any other employer, according to wages of its employees, then certainly the criteria set out in Dominic would apply. Whereas here, when the carrier bases its premiums on the number of employees and the types of job duties in which those employees, including Claimant, are engaged, the statutory provisions for estoppel will nevertheless apply. This clearly falls within the intent and unambiguous language of the es-toppel act.

¶ 14 The estoppel act prohibits an employer or insurance carrier from contesting covered employment of an employee where the employee is scheduled for the purposes of paying or collecting premiums, or where premiums are paid, received or collected "by reason of or upon the basis of the employment of any such employee." There is no statutory mandate that those premiums must be based on wages or salary. That is an element which has been judicially added under facts peculiar to the case on review. While the Dominic Court, and other decisions, makes collection of premiums based on wages or salaries a requisite element, that is because premiums were so calculated by the carriers in those cases.

¶ 15 There are, however, Supreme Court decisions where the estoppel act was found to apply without reference to the method of calculating premiums. Seq eg. Atlas Rock Bit Service Co. v. Henshaw, 1979 OK. 20, 591 P.2d 294 (What triggers application of the estoppel act is the employer's act or paying and the insurer's act of receiving premiums, citing Miller v. Sears, Roebuck & Co., 1976 OK 67, 550 P.2d 1330); Jot Davis Welding Service v. Davis, 1962 OK 243, 376 P.2d 259 (If the employer is obligated to pay, and the insurer is authorized to collect, the premiums on the employee, the employee is covered by the Workman's Compensation Act); Fuller White Chevrolet Co. v. Graham, 1960 OK 179, 355 P.2d 557 (Stated intention of both employer and insurer was to insure all employees of employer).

{16 In determining applicability of the estoppel act, we need also examine the see-ond component section, § 65.3, which provides:

Every contract of insurance issued by an insurance carrier for the purpose of insuring an employer against liability under the Workers' Compensation Act shall be conclusively presumed to be a contract for the benefit of each and every person upon whom insurance premiums are paid, collected, or whose employment is considered or used in determination of the amount of premium collected upon such policy for the payment of benefits as provided by the Workers' compensation Act regardless of the type of business in which the employer of such person is engaged or the type of work being performed by the employee at the time of any injury received by such employee arising out of and in the course of his employment, which contract may be enforced by such employee as the beneficiary thereof.

117 In one of the earliest cases considering the estoppel act, and in which §§ 65.2 and 65.8 were found to be constitutionally proper, the Supreme Court held with respect to § 65.8:

The effect is that when a contract of insurance, as mentioned, has been issued for the purpose of insuring an employer against liability under the Workmen's Compensation Law, and when a persons employment is considered or used in determination of the amount of premiums collected upon such policy for the payment of benefits as provided by the Workmen's Compensation Law, such person on sustaining injury in the employment may proceed under the Workmen's Compensation Law for compensation. (Emphasis added).

National Bank of Tulsa v. Goldsmith, 1951 OK 5, 226 P.2d 916.

As one of the employees whose employment First Nations concedes was considered in determining the amount of premium, Claimant has an enforceable right to seek compensation against First Nations under the contract with the Tribe.

1 18 It has long been a rule in this jurisdiction that the Workers' Compensation Act is to be liberally construed in favor of the workers it is intended to benefit. Phillips v. Duke Mfg., Inc., 1999 OK 25, 980 P.2d 187. The Oklahoma Supreme Court spoke to the purpose of the estoppel act in Jot Davis Welding Service v. Davis, 376 P.2d at 260:

If it were not for these statutory provisions both the employer and employee might go along, seeing premiums on the policy collected and being lulled into believing that the latter's job was covered by the policy, then, when an accident occurred and a claim was filed thereunder, suddenly find to their joint dismay, that they had no such protection.

¶ 19 First Nations' contended interpretation of the estoppel act would allow it to avoid liability for Workers' Compensation benefits which were bargained for and which the Tribe's employees believed would be available if they sustained employment related disabilities. We find that interpretation, the one adopted by the three judge panel, to be erroneous as a matter of law.

¶ 20 In addition, as in Dominic, there is another basis for our determination. In Dominic, as here, the compensation carrier paid temporary total disability benefits before it began to question the Workers' Compensation Court's jurisdiction. Here, First Nations, by its own admission, paid Claimant temporary total disability benefits from February 28, 2001 to March 22, 2001. The record reflects First Nations first contested the court's jurisdiction in its Answer filed March 26, 2001. The Dominic Court held that payment of benefits "sams contest of the employment-related nature of the claimant's harm constitutes a waiver of its defenses against liability."

¶ 21 Accordingly, we hold Claimant was covered by First Nations' policy at the time he was injured, and First Nations is estopped from asserting the Tribe's sovereign immunity in defense of his claim. The order of the three-judge panel is vacated and the cause is remanded to the three-judge panel for a hearing on the other issues submitted by First Nation in its appeal to the panel.

¶ 22 VACATED AND REMANDED.

ADAMS, J., concurs; MITCHELL, J., concurs by stare decisis.

      . The customers of First Nations are exclusively limited to Indian Tribes recognized by the federal government.

      . See also, the progeny of Dominic-Little v. Muscogee (Creek) Nation, 1997 OK 57, 938 P.2d 739; Wahpepah v. Kickapoo Tribe of Oklahoma, 1997 OK 63, 939 P.2d 1151; Muscogee (Creek) Nation v. Smith, 1997 OK 66, 940 P.2d 498. In each case the carrier was the State Insurance Fund.

      . Claimant limits his appeal to the jurisdictional issue of liability of First Nations. He does not appeal the finding the Tribe is immune from suit.


author: KENNETH L. BUETTNER, Presiding Judge:

text:
    2002 OK CIV APP 71
    Wanda WEBSTER, Petitioner, v. INTEGRIS BASS HOSPITAL, Own Risk, and The Workers' Compensation Court, Respondents.
    No. 96,512.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    June 7, 2002.
    Walt Brune, Walt Brune, P.C., and Fred L. Boettcher, Boettcher Law Offices, Inc., Ponea City, OK, For Petitioner.
    Lori R. Roberts, Integris Health, Inc., Oklahoma City, OK, For Respondent Integ-ris Bass Hospital.
   Opinion by

KENNETH L. BUETTNER, Presiding Judge:

11 Petitioner Wanda Webster seeks review of an order of the Workers' Compensation Court which found that charges for certain medications prescribed by an unauthorized physician were not reimbursable under 85 0.8.S8upp.2000 § 14(). Respondent Integris Bass Hospital (Employer) asserts that the trial court's order is correct. Because we find no basis in § 14(G) for the denial of reimbursement for prescription medications, we vacate the order and remand for proceedings consistent with this opinion.

{2 Webster filed her Form 3 December 14, 1999. She claimed that she injured her back, neek, left shoulder, and left arm while lifting laundry while working for Employer. The trial court's order determining compens-ability and awarding temporary total disability (TTD) benefits was filed May 15, 2000. That order provided in part that "respondent shall pay all reasonable and necessary medical expenses incurred by claimant as a result of said injury."

13 Webster later sought an order that Employer pay $1448 for medical treatment she received from Enid Therapy Center. The Workers' Compensation Court entered an order March 22, 2001, in which it ordered Employer to pay $500 to "Enid Physical Therapy." The order indicated that the reduced amount of the award was because Webster "is in a certified workplace medical plan and Enid Physical Therapy is an unauthorized medical provider."

T 4 The Workers' Compensation Court entered an order April 6, 2001 which awarded PPD benefits. That order also provided, in paragraph 9, that Employer shall provide Webster with "continuing medical care, in the nature of prescription medication, with Dr. Robert Rivers, including reasonable and necessary office visits to monitor same. This continuing benefit will be reviewed annually...." Paragraph 10 ordered Employer to pay all reasonable and necessary medical expenses incurred by Webster as a result of her compensable injury.

4 5 Webster then filed her Form 9, seeking trial on the issue of payment of $680.94 to Toni's Westside Healthmart, plus attorney fees. The Workers' Compensation Court entered its order June 20, 2001, in which it held that Webster "was enrolled in a Certified Work Plan and was treating with a plan physician simultaneous with her seeking treatment by Dr. Richard Rivers, who was unauthorized." That order also provided that "the prescriptions ordered by Dr. Rivers and filled at Toni's Westside Pharmacy are therefore not covered under the Workers' Compensation Act." The court also found that 85 00.98.1991 § 14(G) "allows for payment to providers such as diagnostic facilities and Allied Health providers," but that the statute does not include pharmacies who fill pre-seriptions from unauthorized physicians. The court therefore denied the request for payment to Toni's Westside Pharmacy. Webster seeks review of this order.

16 Webster argues that the question on review is "whether or not a request for reimbursement of prescription medication ordered by an unauthorized physician falls within the medical provisions" in § 14. However, because the trial court expressly based its denial on § 14(G), we limit our review to whether § 14(G) afforded a basis on which to deny the prescription reimbursement. We have found no cases interpreting § 14(G). That subsection states:

If the employee chooses a physician for treatment and subsequently changes physicians without the prior approval of the Court or Administrator except when prior approval is waived for good cause shown, or without agreement of the parties, the maximum liability of the employer for the aggregate expenses of all such subsequent physicians shall be Five Hundred Dollars ($500.00). Provided, the limitations shall not apply to referrals by the treating physician for treatment or diagnostic procedures.

The question is whether the limitation for physician expenses also applies to prescriptions ordered by the physician. We find nothing in § 14(G) that supports the denial of prescription reimbursement. Section 14(G) limits the employer's liability for "the aggregate expenses of all such subsequent physicians" (who are unauthorized). This language refers only to payments for doctor's bills, not medication.

T7 Because we have determined that the trial court erred in finding that § 14(G) prohibits reimbursement for medicines prescribed by an unauthorized physician, we VACATE the trial court's order and REMAND for proceedings not inconsistent with this opinion.

JOPLIN, V.C.J., and JONES, J., concur.

      . Title 85 0.$.Supp.2000 § 14(G) provides:
      If the employee chooses a physician for treatment and subsequently changes physicians without the prior approval of the Court or Administrator except when prior approval is waived for good cause shown, or without agreement of the parties, the maximum liability of the employer for the aggregate expenses of all such subsequent physicians shall be Five Hundred Dollars ($500.00). Provided, the limitations shall not apply to referrals by the treating physician for treatment or diagnostic procedures.

      . Apparently this is a scrivener's error and the order actually refers to Dr. Richard Rivers.

      . Respondents suggest allowing payment of prescriptions ordered by unauthorized physicians will encourage doctor shopping which § 14(6) is intended to discourage. We fail to see how the payment for prescriptions to a third-party pharmacist, which are otherwise found to be necessary and proper for a covered injury, will encourage doctor shopping.


author: BAY MITCHELL, Judge.

text:
    2002 OK CIV APP 75
    In the Matter of M.D.R., Deprived Child, Lisa Reagan, Respondent/Appellant, v. The STATE of Oklahoma, Petitioner/Appellee.
    No. 96,013.
    Court of Civil Appeals of Oklahoma, Division No. 8.
    June 21, 2002.
    Kristi K. Sanders, Bartlesville, OK, for Respondent/Appellant.
    Teressa H. Williams, Assistant District Attorney, Bartlesville, OK, for Petitioner/Ap-pellee.
   Opinion by

BAY MITCHELL, Judge.

11 Lisa Reagan, Respondent/Appellant, appeals an order terminating her parental rights. The order was entered by the trial court based on a unanimous jury verdict. The ground for termination recited in the order was that "Appellant has failed to correct the conditions" and that termination "is in the best interests of [the] child."

T2 In 1997, the State first filed a petition seeking to have the child found deprived. That petition alleged, and it was subsequently found, the child had been sexually molested by her uncle, grandfather and another, had witnessed domestic violence in the home, had been cared for (while Appellant was incarcerated) by the step-father who abused aleohol, and had been physically abused for speaking to Department of Human Services (DHS) workers. Appellant did not dispute these allegations. A service plan was adopted by the court which required Appellant to correct the conditions which led to the adjudication of deprived. The care and custody of M.D.R. was placed with DHS.

T3 The State subsequently amended the "deprived" petition adding that the grandfather had continued to bring aleohol into Appellant's home since the adjudication, that M.D.R. had been counseled to lie to DHS workers about alcohol in the home, that stepfather had overdosed on drugs and alcohol and was increasingly violent, that Appellant had indicated she would leave step-father and divorce him, but was living with him again since the adjudication. The mother again did not dispute these allegations. An amended adjudication order was entered requiring Appellant to correct the conditions.

¶ 4 Appellant substantially complied with the service plan adopted by the trial court and the child was returned to her home. However, approximately two months later, the child was again removed from Appellant's home due to allegations of contact between the child and one of her former sexual abusers. The State filed a motion for termination of Appellant's parental rights. The motion asserted Appellant had failed to protect the child from abuse and neglect. The motion also alleged that Appellant had been given in excess of 90 days to correct a condition which led to M.D.R. being adjudicated as deprived and had failed to correct the condition. Because one of the child's parents was a member of the Osage Tribe, that tribe was given notice of the pendency of the motion to terminate the parental rights and allowed the opportunity to intervene. When the trial was set, the tribe was given notice of the date and time of the jury trial and again given the opportunity to intervene. There is no evidence in the record of the tribe having done so.

¶ 5 Following a jury trial the court entered judgment on the verdict. Appellant appeals and contends as error: The Order terminating her parental rights does not refer to specific statutory grounds for termination; the State's expert witness was not a properly qualified expert under the Indian Child Welfare Act; the Order contains no finding of compliance with the Indian Child Welfare Act; and the State failed to prove beyond a reasonable doubt that Appellant had failed to correct the conditions which led the child to being adjudicated deprived.

¶ 6 The statutory grounds for terminating a parent's parental rights are found at 10 0.8.2001 § 7006-1.1. Ordinarily, the State's obligation is to prove one or more of these grounds by "clear and convincing" evidence. However, where, as here, the Indian Child Welfare Act is involved the State must prove "beyond a reasonable doubt" that continued custody by the parent is likely to result in serious damage to the child. 25 U.S.C.1912(f); Matter of J.W., 1987 OK CIV APP 60, 742 P.2d 1171, 1175. Our review of factual issues is no different than on any appeal from a judgment on jury verdict; where there is competent evidence reasonably tending to support the verdict the judgment thereon will not be disturbed on appeal. Matter of T.R.W., 1985 OK 99, 722 P.2d 1197, 1200. Legal errors, of course, are reviewed de movo.

¶7 Appellant first contends that the order terminating her parental rights does not contain "statutorily mandated predicato-ry findings." She relies on Matter of L.S., 1990 OK CIV APP 94, 805 P.2d 120 and Matter of E.M., 1999 OK CIV APP 32, 976 P.2d 1098. Both cases were reversed and remanded because the termination orders failed to identify the specific statutory basis relied on, did not contain the specific findings required by that statutory provision and did not identify what conditions Appellant failed to correct which led to the adjudication order. See also, Matter of B.M.O., 1992 OK CIV APP 89, 838 P.2d 38, 40.

I 8 Such is the situation in the instant case. The termination order merely states that Appellant "has failed to correct the conditions" and that termination of Appellant's rights "is in the best interests of said child". The specific statutory basis is not identified, necessary statutory findings are absent and the "conditions" are not identified. Although there appears to be evidence supportive of certain underlying facts in this case, the order appealed is fundamentally deficient and must be vacated.

T9 A related allegation of error is that the termination order also lacks a finding of compliance with the Indian Child Welfare Act as required by Rule 8.2, Rules for District Courts of Oklahoma, 12 O.S. Supp. Ch. 2, App. 1. This is mandatory, not optional. Being mandatory, this oversight also requires the termination order be vacated.

[ 10 The order terminating Appellant's parental rights is vacated and this matter is remanded to the trial court, not for a new trial, but with instructions for the trial court to enter a proper final order correcting the deficiencies described herein. It is unnecessary to address Appellant's remaining allegations of error at this time.

{11 VACATED AND REMANDED WITH INSTRUCTIONS.

HANSEN, P.J., and ADAMS, J., concur.

      . The Appellant and her child are members of the Osage tribe.

      . "All decrees of adoption, divorce or separate maintenance where custody of a minor Indian child or children is given to a third party, all orders of adjudication in juvenile proceedings, termination of parental rights and all final orders in Habeas Corpus and guardianship of the person proceedings resulting in the adjudication of status, custody or wardship of minor children, shall contain a finding of compliance with 25 U.S.C.A.1901 et seq. (Indian Child Welfare Act of 1978), ..."