author: LAVENDER, J. OPALA, J., BOUDREAU, J.,

text:
    2002 OK 85
    In the Matter of the Assessment of REAL PROPERTY OF INTEGRIS REALTY CORPORATION, an Oklahoma not-for-profit corporation (Parcel Nos. 2847-14-225-0640) Integris Realty Corporation, an Oklahoma corporation; Integris Prohealth, Inc., an Oklahoma corporation; and Baptist Medical Plaza Associates, Ltd., an Oklahoma limited partnership, Appellees, v. Oklahoma County Board of Tax Roll Corrections and Mike Means, Oklahoma County Assessor, Appellants.
    No. 96,504.
    Supreme Court of Oklahoma.
    Oct. 29, 2002.
    As Corrected Nov. 7, 2002.

      Robert L. Garbrecht and Drew D. Webb of McAfee & Taft, Oklahoma City, Oklahoma, for the appellees.
    Gretchen Crawford, Assistant District Attorney for Oklahoma County, Oklahoma City, Oklahoma, for the appellants.
   LAVENDER, J.

¶ 1 Today’s cause requires the Court to determine whether earlier-recognized constitutional guidelines (for determining availability to a charity of an exemption from [ad valorem] taxation under' the provisions of OKLA.CONST. art. 10, § 6) remain viable. After review of applicable extant jurisprudence, we hold that the Court’s earlier-declared entitlement-guidelines for an art. 10, § 6 exemption-from-taxation correctly state the parameters of the sought-after exemption. After the Oklahoma County Board of Tax Roll Corrections denied Baptist Medical Plaza Associates, Ltd. [BMPA], Integris Realty Corporation and Integris Prohealth, Inc.’s [collectively appellees or Integris] application for a refund of earlier-paid ad valo-rem taxes, appellees appealed to the district court for a de novo trial. We conclude the district court properly adjudged appellees entitled to summary judgment and the requested exemption.

I

FACTS AND PROCEDURAL HISTORY

¶ 2 Integris Prohealth, Inc. (a charitable corporation) is the owner of certain real estate which was leased to BMPA during all times relevant to the requested tax-exemption. BMPA constructed a multi-story office building containing 146,006 square feet of rentable space upon the leased acreage. BMPA leased 44,645 square feet to Integris Realty Corporation [Corporation] during the 1997 to 1999 tax years and 45,191 square feet during the 2000 tax year. Corporation sublet the leased space to various Integris nonprofit entities who used the space for charitable, educational and scientific purposes. Appellees contended below that the exclusive use of the leased facilities for charitable purposes qualified it for exemption from ad valo-rem taxation.

¶ 3 Mike Means, Oklahoma County Assessor, and the Oklahoma County Board of Tax Roll Corrections [collectively County or appellants] assert as bases for denying Integ-ris’ exemption-claim (1) that BMPA' — the building’s owner — is not a charitable organization and (2) that BMPA leases part of the building in issue for profit to entities which are not charities. County claims these facts — when viewed through the provisions of 68 O.S.2001 § 2887(9) — preclude BMPA’s entitlement to the requested exemption. County also asks the Court to overrule Cox v. Dillingham, 1947 OK 250, 184 P.2d 976, where the Court held in assessing entitlement to an art. 10, § 6 exemption from taxation:

“ ‘It is immaterial what name the institution, organization, or society may bear, or who may own the property in question. But it is the use to which the property is dedicated and devoted which constitutes the test as to whether it is exempt.’ ” [citing Beta Theta Pi Corp. v. Bd. of Com’rs, 1925 OK 176, 234 P. 354, 356] Id. at 978.

County asserts that when deciding Cox the Court focused on use alone without giving adequate consideration to the - exclusivity of use required under the applicable constitutional provisions.

¶ 4 BMPA paid all assessed ad valorem taxes and then timely pursued a refund of the same. The Oklahoma County Board of Tax Roll Corrections denied the sought-after exemption and the Integris entities appealed the denial to the district court. Integris moved for summary judgment which was granted. County then brought today’s appeal, over which we previously retained jurisdiction.

II

THE STANDARD OF REVIEW

¶ 5 Today the Court is called upon to review a trial court’s grant of summary judgment. Such review is conducted de novo. Although in its consideration of a motion for summary judgment the trial court considers factual matters, it ultimately must decide entitlement to judgment as a matter of law. When reviewing summary judgment, the Court focuses on (1) whether the eviden- tiary materials as a whole demonstrate undisputed facts on material issues and (2) whether they support but a single inference in favor of the moving party. Only when the evidentiary materials eliminate all factual disputes relative to a question of law is summary judgment appropriate on that issue. Summary process is properly invoked only when it serves to eliminate a useless trial.

¶ 6 Today’s cause also presents a question of law concerning the scope of the constitutionally-mandated exemption from ad va-lorem taxation for real property used by charities. Questions of law are reviewed de novo which necessitates a plenary, independent and non-deferential examination of the trial court’s legal rulings.

Ill

THE DISTRICT COURT CORRECTLY APPLIED OKLA.CONST. ART. 10, § 6’s PROVISIONS IN DETERMINING APPELLEES’ ENTITLEMENT TO SUMMARY JUDGMENT

¶ 7 County predicates its denial of an ad-valorem-tax exemption for the space leased to the Integris-related charitable entities upon the fact that BMPA (the building owner) is economically benefitted by the lease payments received. The Court’s attention is further drawn to the fact that BMPA is leasing space in the same building to for-profit organizations. County’s legal argument is that the (economic) use of rental space in BMPA’s building for financial gain affronts art. 10, § 6’s exclusive-use provision.

¶ 8 County does not refute that the In-tegris-related entities which are physically using the space (for which the exemption is claimed) are charitable. Rather in support of the tax-exemption denial County points to BMPA’s (the building owner) legal status which is neither that of a 501(c)(3) organization under applicable Internal Revenue Code provisions nor that of a charitable entity under Oklahoma statutes. County asserts that under the provisions of 68 O.S.2001 § 2887(9) the latter facts disqualify BMPA from receiving the requested exemption. The essence of County’s legal argument is that the term “used exclusively for religious and charitable purposes” (as employed in the art. 10, § 6 grant of a tax-exemption) should be redefined to include both economic and physical use components and that both uses must be of a charitable character. To accomplish this County would have the Court overrule Cox v. Dillingham, 1947 OK 250, 184 P.2d 976, which focuses solely on the physical use (for a constitutionally recognized exempt-purpose) of the property sought to be taxed.

A

THE CONSTITUTIONAL EXEMPTION FROM TAXATION HERE IN ISSUE IS PREMISED UPON THE EXCLUSIVE (PHYSICAL) USE OF THE SOUGHT-TO-BE-TAXED REAL PROPERTY FOR A CHARITABLE PURPOSE

¶ 9 Oklahoma’s extant jurisprudence teaches that the proper interpretation of the words “used exclusively”in the constitutional provision in issue is “the use to which the property is dedicated and devoted.” The Court in Autumn House v. State ex rel. Oklahoma Tax Com’n, 1991 OK 73, 814 P.2d 1036, 1038, further clarified the framers’ intent in crafting the art. 10, § 6 exemption, when it held that the phrase “used exclusively” was not to be viewed in the abstract but rather in the context of constitutionally-recognized exempt purposes. In Autumn House the Court also held that “use” denotes the application or employment of something for a purpose. Id. at 1039. Extant jurisprudence teaches that the absence or presence of pecuniary profit to the property’s owner is not what determines whether or not a property is exempt from taxation. Rather the physical use to which the property is devoted is the determinative factor.

¶ 10 In Cox v. Dillingham land owners leased real property to Cox to build a school. While rent was minimal during the first years of the lease term, it increased from a flat rate to an additional amount equal to five percent of the Cox’s gross operating receipts. The lessee was given credit against lease payments for taxes and insurance. In allowing the exemption the Court rejected Dilling-ham’s [Washington County Treasurer] argument that the exemption should be denied because the land owner profited from Cox’s lease payments. The Court instead focused upon the purpose to which Cox devoted the leased premises — i.e., a school — as determinative of entitlement to the ad-valorem-tax exemption. The Cox Court emphasized that for a “use” to qualify property for exemption, it must be “exclusive,” i.e., the land for which the exempt status is sought must be used exclusively for a constitutionally recognized purpose.

¶ 11 In seeking Cox’s repudiation County is attempting to resurrect a construction of the pertinent art. 10, § 6 language which was earlier considered and rejected by the Court not in Cox v. Dillingham but rather in Oklahoma County v. Queen City Lodge No. 197, I.O.O.F., 1945 OK 55, 156 P.2d 340. There the International Order of Oddfellows [Lodge] purchased a twelve story building in Oklahoma City. Lodge [a charitable organization] physically occupied and used the twelfth floor and leased the remaining eleven floors to various for-profit businesses and shops. It sought an exemption from ad valorem taxes for the entire building on the basis that it used the rental income received to support its charitable purposes. The Court rejected the Lodge’s analysis deciding that entitlement to a constitutionally permitted exemption was predicated not upon how the building owner used the rents from the leased premises but rather upon consideration of the purpose to which the property was physically dedicated and devoted. In Queen City Lodge the Court [for the first time] held that real property could be taxed in proportion to its respective uses, i.e., pro rata. The Court held Lodge was entitled to an exemption for the twelfth floor which was devoted — i.e., physically used' — for the promotion of its charitable purposes but not for the remaining floors which were physically used for purposes other than those constitutionally recognized as bases for entitlement to a tax exemption. In its holding the Court overruled Board of Commissioners of Garfield County v. Phillips University, 1930 OK 310, 289 P. 720, to the extent that it held that “mere use of income from property could alone be applied as the test of the use of the property itself in determining tax exemption under the constitutional provision [art. 10, § 6] here considered.” Queen City Lodge, 156 P.2d at 348. In sum, the Court rejected the idea that how a building’s owner economically uses income from a property is a factor in determining entitlement to an art. 10, § 6 ad-valorem-tax exemption.

¶ 12 The Court in Queen City Lodge succinctly stated the principles under which the Court would consider overruling longstanding precedent such as Cox, when it quoted Corpus Juris Secundum:

It is generally held that a court will not as a rule inquire into the construction of a constitutional provision or the constitutionality of a statute or ordinance where this question has been passed on in previous decisions by a court of last resort ... unless such “previous decisions are manifestly envneous, and there are cogent reasons for overruling them; and this is especially true where such decisions have been long relied on as authoritative, or where such decisions have become rules of property. ... [Emphasis in original.] Queen City Lodge, 156 P.2d at 345.

County offers, and we see, no cogent reason why the Court’s earlier construction of “used exclusively” should be changed. The Queen City Lodge Court’s analysis is extensive and rings as true today as it did in 1945. The framers of Oklahoma’s Constitution no doubt were mindful that charitable institutions such as the Integris-related entities provide services which relieve the State of burdens which it would otherwise have to bear and in crafting the art. 10, § 6 tax-exemption intended to foster such charitable acts. The record demonstrates that the non-profit In-tegris entities were given credits against rentals in the amounts of the tax exemptions allowed. This clearly comports with what the framers sought to accomplish. For these reasons we affirm our earlier precedent.

B

TO THE EXTENT THE PROVISIONS OF 68 O.S.2001 § 2887(9) IMPOSE A GREATER BURDEN UPON THE CONSTITUTIONAL TAX-EXEMPTION AUTHORIZED BY OKLA. CONST. ART. 10, § 6’s TERMS THAN THE ORGANIC LAW ITSELF DOES, THE STATUTE IS CONSTITUTIONALLY INFIRM

¶ 13 Section 2887(9) sets as a precedent to entitlement to an art. 10, § 6 tax exemption that the property owner be either a § 501(c)(3) charitable institution or a § 501(c)(19) veterans organization under applicable federal law or that it charge no rent for the space leased or used by a charitable organization. The provisions of art. 10, § 6 do not condition receipt of a tax exemption upon such terms rather the constitutional language in issue simply requires that the property (for which the exemption is claimed) be used exclusively for religious and charitable purposes.

¶ 14 As discussed above it is the “use” to which property is dedicated and devoted which is determinative of entitlement to the art. 10, § 6 tax exemption. The above statutory restrictions focus upon (a) the property owner’s legal and tax status and (b) how it will economically use the property for which the ad-valorem-tax-exemption is sought. The added statutory qualifications for receipt of the constitutionally-mandated exemption are not predicated upon how the property is physically used. The placement of the Court’s imprimatur upon the contested statutory language would effect an abrogation of the framers’ intent — as identified in Oklahoma’s extant jurisprudence — in crafting a constitutional-based tax exemption. This we will not do. Hence, to the extent that the provisions of 68 O.S.2001 § 2887(9) impose greater burdens on entitlement to receipt of an art. 10, § 6 tax-exemption than Oklahoma’s organic law itself requires, the same are disapproved.

C

THE DISTRICT COURT’S SUMMARY JUDGMENT FOR THE INTEGRIS-RELATED ENTITIES IS AFFIRMED

¶ 15 The evidentiary materials submitted by the Integris-related entities demonstrate there is no factual controversy since those seeking the constitutionally-mandated tax exemption do charitable work and were in fact physically using the leased space for charitable purposes. Also, it is not refuted that the Integris-related charitable entities under their sub-leases will be given the economic benefit of the sought-after ad valorem tax exemption. The district court properly applied the Court’s holding in Cox which is an accurate and correct exposition of the entitlement-parameters for the art. 10, § 6 tax exemption. Hence, summary judgment is affirmed.

IV

CONCLUSION

¶ 16 County today questions the viability of extant jurisprudence which teaches that entitlement to a tax exemption — authorized under the terms of art. 10, § 6 — from ad valorem taxation is predicated solely upon the physical use to which the property is dedicated and devoted. Upon review we conclude that the Court’s earlier pronouncements correctly state what the framers of Oklahoma’s Constitution intended in crafting art. 10, § 6. In recognition of the burden on state government which is lifted by the charitable acts of others, the framers allow an exemption from taxation for property which is “used exclusively” — i.e., property which is physically dedicated and devoted — for charitable purposes. The statutory language employed in 68 O.S.2001 § 2887(9) to the extent that it creates a burden on entitlement to an art. 10, § 6 exemption in a way inconsistent with the constitutional provision’s language is disapproved.

THE DISTRICT COURT’S JUDGMENT IS AFFIRMED.

¶ 17 HARGRAVE, C.J., WATT, V.C.J., HODGES, SUMMERS and WINCHESTER, JJ., concur.

¶ 18 OPALA, KAUGER and BOUDREAU, JJ., dissent.

OPALA, J.,

with whom KAUGER, J., joins, dissenting.

¶ 1 I dissent from the court’s pronouncement because Integris Realty’s summary process evidentiary substitutes do not offer a factual basis for concluding that the rentable square footage of Building B — here in contest — was, during the period in question, used exclusively, on a day-to-day basis, for charitable purposes and hence stands exempt from ad valorem tax liability. I would reverse the summary judgment and remand the cause for further proceedings.

BOUDREAU, J.,

with whom OPALA and KAUGER, JJ., join, dissenting.

¶ 1 The majority opinion affirms the ad valorem tax charitable-purposes exemption for certain office space occupied by “Integris Nonprofit Entities” identified as engineering, education and training, facility planning, physician services, foundation, legal, plaza hotel, managed care, CVI lab, diabetes center, heart center, surgery center, and fertility institute. Because the record before us is void of any evidence showing the charitable character of the use of this office space, I must respectfully dissent.

¶2 Our state constitution exempts from ad valorem taxation “all property used for free public libraries, free museums, public cemeteries, property used exclusively for nonprofit schools and colleges, and all property used exclusively for religious and charitable purposes”. (Emphasis added.) The intent of the exemption is to encourage and assist institutions which benefit the public and, to some extent, relieve the government of some of its burdens.

¶ 3 Whether property is “exclusively used for charitable purposes” is necessarily a question of fact to be established by the evidence. To determine the “exclusive use” of the property, there must be a showing that the property is dedicated and devoted to a particular use.

¶4 The charitable character of the particular use is the determinative factor that brings the property within the constitutional exemption. The charitable use of property by an institution, such as a hospital, is determined by a single test: Are the doors open to all, poor persons and paying persons alike. If yes, it is a charitable hospital and the property it uses is exempt from taxation.

¶ 5 In this case, the charitable use of the office space by the “Integris Nonprofit Entities” was disputed in the pleadings before the district court. For summary adjudication to be appropriate, the disputed material fact of charitable use must be conclusively established by the evidence in the record.

¶ 6 The majority opinion, at footnote 11, notes that the evidence substantiated the type and quantum of charitable work which the tenants performed in the office space. I have carefully examined the summary adjudication record. I find no evidence that substantiates the charitable uses of the office space at issue.

¶ 7 There is documentary evidence establishing the general identities of the tenants as engineering, education and training, facility planning, physician services, foundation, legal, plaza hotel, managed care, CVI lab, diabetes center, heart center, surgery center, and fertility institute. However, there is no evidence that these tenants are care centers providing services to the public or that these tenants’ doors are open to the public, poor persons and paying persons alike.

¶ 8 There is affidavit evidence relating to the charity afforded by Integris Baptist Medical Center (Baptist Hospital) and affiliated care centers including Family Care Center Northwest. However, the affidavits do not claim that Baptist Hospital or the Family Care Center occupied the office space at issue or otherwise used the space for charity.

¶ 9 Article 10, § 6 provides an exemption from ad valorem taxation for property used exclusively for charitable purposes. The majority opinion expands this narrow exemption of property utilized exclusively for charitable purposes to encompass all property used by hospital-related, not-for-profit entities in furtherance of charity-related purposes.

¶ 10 The property owners’ bare statement that the office space was used for charitable purposes does not entitle them to summary adjudication that the property is exempt from ad valorem taxation as a matter of law. Charitable use is the material, determinative fact that would bring the property within the constitutional exemption. Without proof of the charitable use of the property, summary adjudication is premature. Accordingly, I would reverse the summary adjudication and remand this controversy for trial de novo in the district court.

      . The pertinent provision of OKLA.CONST. art. 10, § 6 is:
      [A]U property used exclusively for religious and charitable purposes ... shall be exempt from taxation ....

      . See 68 O.S.2001 § 2871(H), which provides in pertinent part:

        Both the taxpayer and the county assessor shall have the right of appeal from any order of the board of tax roll corrections to the district court of the same county. In case of appeal the trial in the district court shall be de novo. [Emphasis added.]

      . In their arguments to the district court County asserted that the Integris entities wholly failed to prove that the property for which the exemption is sought was used “exclusively and directly " for charitable purposes.

      . It is not contested that BMPA is a for-profit Oklahoma limited partnership.

      . The pertinent terms of 68 O.S.2001 § 2887 are:
      The following property shall be exempt from ad valorem taxation:
      9. All property used exclusively and directly for charitable purposes within this state, provided the charity using said property does not pay any rent or remuneration to the owner thereof unless the owner is a charitable institution described in Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C., Section 501 (c)(3), or a veterans' organization described in Section 501(c)(19) of the Internal Revenue Code, 26 U.S.C., Section 501(c)(19) .... [Emphasis added.]

        .Prudential Ins. Co. of America v. Glass, 1998 OK 52, ¶ 2, 959 P.2d 586, 588.

      . Meadows v. Fain, 1989 OK 100, 776 P.2d 1270, 1272.

      . Russell v. Bd. of County Com’rs, 1997 OK 80, ¶ 7, 952 P.2d 492, 496-97.

      . Glass, supra, page 202 note 6, 1998 OK 52, ¶ 3, 959 P.2d at 588-89; Martin v. Chapel, Wilkinson, Riggs, and Abney, 1981 OK 134, 637 P.2d 81, 84.

      . Jackson v. Jackson, 2002 OK 25, ¶ 2, 45 P.3d 418, 422; Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8, 33 P.3d 302, 305.

      . In its appellate paperwork County does assert that appellees have not proven they are engaged in charitable work but offers nothing to contravene the evidentiary materials submitted to the trial court substantiating the type and quantum of charitable work in which the Integris-related entities engage. The summary judgment record before the trial court, contrary to the assertion in the dissent by Justice Boudreau, indisputably and unequivocally shows that the portions of the involved building for which tax exemption is sought were used for hospital-related services in furtherance of the charitable, educational and scientific purposes of various Integris nonprofit entities, and that the facilities occupying the space for which exemption is sought were open to the public without discrimination regardless of ability to pay. The summary judgment record also plainly shows that most, if not all, of the nonprofit entities occupying the space for which exemption is sought are merely part of Integris Baptist Medical Center, i.e. Baptist Hospital.

      .For the pertinent terms of 68 O.S.2001 § 2887(9), see supra note 5.

      . Immanuel Baptist Church v. Glass, 1972 OK 79, 497 P.2d 757, 760.

      . Board of Com'rs of Tulsa County v. Tulsa Business College, 1931 OK 400, 1 P.2d 351, 353.

      . Cox v. Dillingham, 1947 OK 250, 184 P.2d 976, 978.

      .We do not read London Square Village, Inc. v. Okla. County Equalization and Excise Bd., 1976 OK 159, 559 P.2d 1224, to support the proposition that a property which produces income is incapable of qualifying for an art. 10, § 6 tax exemption. Rather the Court’s decision in London Square Village is based upon the fact that property was let to tenants in no need of charity who were very capable of paying the rents charged, i.e., the property was not physically used [in several instances] for charitable purposes.

      . For the provisions of 68 O.S.2001 § 2887(9), see supra, page 202 note 5.

      . Cox, supra', Queen City Lodge, supra; Beta Theta Pi Corp. v. Bd. of Com’rs, 1925 OK 176, 234 P. 354.

      . Okla. Const., art. 10, § 6.

      . Cox v. Dillingham, 1947 OK 250, 199 Okla. 161, 184 P.2d 976.

      . London Square Village, Inc. v. Oklahoma County Equalization and Excise Board, 1976 OK 159, 559 P.2d 1224; Beta Theta Pi Corporation v. Board of Commissioners of Cleveland County, 1925 OK 176, 108 Okla. 78, 234 P. 354.

      . Rule 13(b), Rules for the District Courts, 12 O.S.2001, ch. 2, app. 1.

      . 68 O.S.2001, § 2871(H).

      . Holland Hall School v. Glass, 1972 OK 81, 497 P.2d 763; Oklahoma County v. Queen City Lodge No. 197, 1945 OK 55, 195 Okla. 131, 156 P.2d 340.

      . Tulsa County v. St. John’s Hospital, 1948 OK 84, 200 Okla. 176, 191 P.2d 983; Cox v. Dillingham, supra, page 206, footnote 2.

      . In re Farmers Union Hospital Association of Elk City, 1942 OK 128, 190 Okla. 661, 126 P.2d 244.

      . Meadows v. Fain, 1989 OK 100, 776 P.2d 1270.

      . The property owners submitted lists of the tenants and sublessees of the office building for each tax year involved as attachments to an affidavit. The lists categorize the occupants as: 1) "private or for-profit," 2) "Integris not-for-profit,” or 3) "other not-for-profit.” The lists also contain comments that six of the "Integris not-for-profit” occupants are "part of IBMC," leaving the other six or seven "Integris not-for-profit” occupants without such comment. The affidavit and the attached lists do not, however, provide any information regarding the work performed by the occupants. Further, there is no other evidence in the record that describes the occupants or their charitable works.

      .Expansion of the narrow charitable-purposes exemption is precisely the wrong that was redressed in Oklahoma County v. Queen City Lodge No. 197, 1945 OK 55, 195 Okla. 131, 156 P.2d 340. Recognizing that our constitution, art. 5, § 50, prohibits our Legislature from expanding the charitable-purposes exemption, Oklahoma County v. Queen City Lodge No. 197 determined that prior jurisprudence impermissibly expanded the constitutional exemption to include charity-related property, i.e., property used to economically support another entity’s charitable work. Finding that economic support of a charity does not bring property within the constitutional exemption, Oklahoma County v. Queen City Lodge No. 197 overruled Board of Commissioners of Garfield County v. Phillips University, 144 Okla. 57, 289 P. 720(which exempted farm land used to support a college); Sands Springs Home v. State, 168 Okla. 323, 32 P.2d 928(which exempted a gasoline plant used to support a home for orphans and widows); and University Scholarship Corporation v. Parduhn, 1937 OK 447, 180 Okla. 446, 70 P.2d 84(which exempted an apartment building used to support scholarship fund).


source: Caselaw Access Project

author: LUMPKIN, Presiding Judge: JOHNSON, V.P.J.: CHAPEL, J.,

license: Public Domain

text:
    2002 OK CR 34
    Gregory Kyle MALONE, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-2000-1585.
    Court of Criminal Appeals of Oklahoma.
    Oct. 14, 2002.
    As Corrected Oct. 22, 2002.
    Julie O’Connell, Office of the Public Defender, Tulsa, OK, for Appellant at Trial.
    Larry Edwards, Assistant District Attorney, Tulsa, OK, for the State at Trial.
    Paula J. Alfred, Stephen J. Greubel, Stuart W. Southerland, Assistant Public Defenders, Tulsa, OK, for Appellant on Appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Kellye Bates, Assistant Attorney General, Oklahoma City, OK, for the State on Appeal.
    Robert A. Ravitz, Oklahoma County Public Defender, Oklahoma City, OK, James D. Bednar, Executive Director, Oklahoma Indigent Defense System, Norman, OK, Amicus.
   OPINION ON REHEARING

LUMPKIN, Presiding Judge:

¶ 1 Appellant, Gregory Kyle Malone, was tried by jury and convicted of First Degree Burglary (Count I), in violation of 21 O.S. 1991, § 1431, First Degree Rape (Count II), in violation of 21 O.S.1991, § 1114, and Sexual Battery (Count III), in violation of 21 O.S.Supp.1999, § 1123(B), all after former conviction of two or more felonies, in the District Court of Tulsa County, Case No. CF-99-6051. The jury set punishment at twenty (20) years imprisonment and a $10,000 fine on Count I, fifty (50) years imprisonment and a $10,000 fíne on Count II, and (20) years imprisonment and a $10,000 fine on Count III. The trial judge, the Honorable Thomas C. Gillert, sentenced Appellant accordingly and ordered the sentences to be served consecutively.

¶ 2 Malone appealed to this Court, and raised one proposition of error. He was denied a fair sentencing proceeding when the trial court precluded the admission of mitigating evidence relevant to the jury’s exercise of discretion. We rejected this claim in our Summary Opinion of March 18, 2002, and affirmed Appellant’s convictions and sentences. The Summary Opinion adopted a new approach to the concept of allocution and the ability of a non-capital defendant to present mitigating and aggravating evidence in the sentencing stage of a bifurcated jury trial, after the jury’s verdict. It also found that a trial court “has the power and is authorized to reject a jury’s recommended sentence and modify the sentence upwards or downwards.... ” The Summary Opinion was thereafter published. See Malone v. State, 2002 OK CR 14.

¶3 Malone filed a Petition for Rehearing on April 8, 2002, pursuant to Rule 3.14(B)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002). Therein, he claimed we had overlooked a decisive question in the case. The Office of the Oklahoma County Public Defender simultaneously filed a “Motion to File Amicus Brief in Support of Rehearing.” This Court granted rehearing in its order of June 5, 2002. In so doing, we granted the Public Defender’s motion to file an amicus brief and invited the State to file one as well.

¶ 4 Having further reviewed the issue at hand, the applicable authorities, and the additional briefs filed by Appellant, the State Attorney General, and the Oklahoma County Public Defender, we hereby order that our Summary Opinion of March 18, 2002 is stricken, removed from publication, and superceded by this Opinion on Rehearing in its entirety, including all matters .pertinent to the issue Appellant raised in his original appeal.

¶ 5 Defendants in criminal trials deserve to have their day in court, to require the State to meet its burden of proof through evidence presented in open court, to tell their stories, and to defend themselves against the crimes of which they have been charged. The Oklahoma Legislature defines how and when defendants accomplish those purposes. In the instant case, Appellant was not denied a fair sentencing hearing by the trial judge’s decision to preclude Appellant from presenting mitigating evidence to the jury at his non-capital sentencing proceeding.

¶ 6 Oklahoma’s criminal statutes allow non-capital defendants, at the time of formal sentencing, to explain to the trial judge “any legal cause” they have why judgment should not be pronounced against them. 22 O.S. 2001, § 970. But 22 O.S.2001, § 971 qualifies the phrase “any legal cause” by giving specific grounds for such a showing of cause, i.e., insanity and those grounds that would support a motion for new trial in'22 O.S.2001, § 952. This appears to be a purely legal matter-except where there is the discovery of new evidence-and the full extent of “allocution” provided under Oklahoma law, except as set forth below.

¶ 7 22 O.S.2001, § 973 allows “either party” at the sentencing stage to raise “circumstances which may be properly taken into view, either in aggravation or mitigation of punishment,” but only in those eases where the issue of punishment has been left to the judge. In all other cases, i.e., when the defendant has demanded the jury to assess punishment or the trial judge has allowed the jury to assess punishment, there simply is no provision allowing for mitigating evidence to be presented in the sentencing stage of the trial. This is a limitation enacted by our Legislature, and the limitation is undoubtedly constitutional.

¶8 Certain evidence that may be in fact “mitigating” or “aggravating” will inevitably be introduced throughout any trial, although that evidence is admitted to prove the elements of the crime, to support a legal defense, or to impeach a witness. A criminal defendant’s story will in fact be told, by the witnesses he or she chooses and through his or her own testimony. But a criminal trial is not to be based upon so-called “character” evidence, and the same principle applies to sentencing proceedings.

DECISION

¶ 9 The judgments and sentences are hereby AFFIRMED.

STRUBHAR and LILE, JJ.: concur.

JOHNSON, V.P.J.: concur in part/dissent in part.

CHAPEL, J.: dissent.

JOHNSON, V.P.J.:

concurs in part/dissents in part.

¶1 I concur in the Court’s Opinion on Rehearing as it relates to the affirmance of the conviction and the sentences imposed by the trial court. I respectfully dissent to the Opinion on Rehearing and the changes that have been made since the original summary opinion.

¶ 2 Some years ago, Judge James Lane, a former member of this Court, proposed that all trials be two-stage trials. His reasoning had to do with the fact that aggravating evidence could come in during a one-stage trial. A defendant could be found guilty based upon the aggravation and not for the charged crime. He pointed out that in a bench trial after the judgment of the court, the defendant has the right of allocution and can present mitigating evidence to the court that the court can consider in the sentencing. This now seems reasonable. In the original summary opinion, as Judge Chapel points out in his dissent, Oklahoma law does not allow a trial judge to modify the jury’s sentence. He notes this modification can only come in a bench trial. 22 O.S.1991, § 973.

¶ 3 After a jury sentence, justice demands that a defendant have a right to present mitigating evidence to the court. The State should also have the right to present any aggravating evidence. The court could get a pre-sentence report, and. the judge has the right to modify the sentence or even increase the sentence. It is my hope that the legislature would enact a statute that would allow this procedure. If this were done, you would not need the two-stage trial as set forth in our original summary opinion. You would truly have allocution.

¶ 4 I am a great believer in the judicial system and the wisdom of judges who have been on the bench and heard numerous cases. With very few exceptions, their judgments are wise and the sentences given may be fairer than those of a jury who may be mad at the defendant or his or her attorney or something that has occurred in the case that makes the jury’s sentence excessive. Hopefully the Legislature will cure this ill. This state should have a system where the jury finds guilt; the judges give the sentence after allocution.

CHAPEL, J.,

dissenting:

¶ 1 Malone filed an appeal raising one proposition of error — that the trial court precluded the admission of mitigating circumstances relevant to the jury’s exercise of discretion. The issue presented is whether mitigating evidence should be presented, in non-capital felony trials, as a part of a criminal defendant’s right to individualized jury sentencing. The majority opinion substituted here for this Court’s original published opinion fails to answer that question. The opinion merely concludes that character evidence is not admissible in either guilt or sentencing proceedings. I would address the question and find Malone’s right to individualized sentencing was violated. As no procedure currently allows criminal defendants the opportunity to exercise this right, I believe this Court is required to fashion such a procedure. After considering all the arguments submitted to the Court, I would adopt a second, sentencing, stage in non-capital felony proceedings, during which the jury may hear evidence in aggravation and mitigation of the crime, in order to assist in the determination of an appropriate individualized sentence.

¶2 As the State admits, the traditional practice of individualized sentencing in non-capital criminal cases is “conceptually favorable and well-grounded in notions of fairness and justice.” There is of course a qualitative difference between sentencing in non-capital and capital cases, where the constitution requires individual consideration of the characteristics of the defendant and the circumstances of the offense. The United States Supreme Court discussed the historical use of individualized sentencing:

“[Bjoth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind the extent of punishment to be imposed within limits fixed by law. Out-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders.”

In Harmelin v. Michigan the Supreme Court reaffirmed the existence of the right to individualized sentencing in non-capital cases.

¶ 3 Congress recognized the importance of individualized sentencing in adopting the federal sentencing guidelines. One of Congress’s goals in enacting the guidelines was to “provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records ... while maintaining sufficient flexibility to permit individualized sentences.” In furtherance of this goal Congress set forth eleven factors the Sentencing Commission must consider in determining categories of defendants, including the offender’s age, education, vocational skills, mental and emotional condition, physical condition (including drug dependence), previous employment record, family ties and responsibilities, community ties, role in the offense, criminal history, and degree of dependence upon crime for a livelihood. Writing well after Harmelin, the United States Supreme Court noted that the Guidelines specifically incorporate a right to individualized sentencing, as the sentencing factors “speak to the offender’s character, the nature or seriousness of the offense, or some other legitimate sentencing concern.”

¶ 4 This Court has not held there is no right to individualized sentencing in non-capital cases. We have noted that the determination of an appropriate individual sentence is a goal of the criminal justice system in capital and non-capital cases. We have recognized the importance of individually tailoring sentences in the youthful offender context. In Applegate v. State, this Court found the defendant had waived his claim that he could not introduce mitigating evidence during the sentencing stage of a non-capital trial; however, we noted that there was no constitutional violation because the defendant had the opportunity to introduce mitigating evidence and did not. Applegate did not address the issue of a right to individualized sentencing not based in the constitution. However, the opinion impliedly recognizes such a right.

¶ 5 Contrary to the majority’s claim, Oklahoma’s current statutory scheme does not preclude recognition of a right to individualized sentencing, or prevent this Court from implementing a procedure to protect that right. In fact, the statutes read as a whole support the use of individualized sentencing in determining an appropriate sentence. There are three categories in which the Legislature has commented on second stages in criminal trials (or aggravating and mitigating evidence): (1) the capital murder statutes; (2) 22 O.S.2001, § 860.1, codifying the second-stage procedure for sentencing hearings in cases where prior offenses are alleged; and (3) the statutes governing judge sentencing. These three categories all represent instances where the Legislature addressed specific areas, often in response to court decisions. They do not represent exclusive expressions of legislative intent, but show how the Legislature works to resolve specific problems, which are presented to it within the context of general law. In briefing this issue, various parties have argued that the lack of any explicit statute granting the right to individualized sentencing signifies a legislative intent to prohibit the right. I disagree. As the United States Supreme Court has noted, “[n]ot every silence is pregnant.” In some cases, legislative “silence signifies merely an expectation that nothing more need be said in order to effectuate the relevant legislative objective.” That is the case here.

¶ 6 The death penalty statutes, and this Court’s rulings interpreting those statutes, neither circumscribe nor prohibit a general recognition of the right to individualized sentencing, and an attempt to procedurally address that right. The current capital statutes were initially enacted in direct response to the United States Supreme Court decisions in Furman v. Georgia and Gregg v. Georgia, and have been amended both by the Legislature and by this Court in response to further United States Supreme Court decisions. The capital statutes were designed to enact procedures which would meet the particular, and very complicated, requirements of capital cases. The fact that these statutes provide for aggravating and mitigating evidence in capital cases has no bearing on whether this evidence is appropriate in other sentencing contexts. In McCormick v. State this Court held that a second stage, in which aggravating circumstances and mitigating evidence is presented, should only be conducted in capital cases. McCormick applies only to the specific crime of first degree murder, with its special sentencing scheme. It does not apply to other felonies, including other types of homicide; nor does it shed light on any legislative intent regarding non-capital felonies.

¶ 7 Section 860.1 was enacted as a direct response to Harris v. State, , in which this Court set forth the two-stage procedure later adopted by the Legislature. The Legislature enacted the statute allowing enhancement with prior convictions, 21 O.S.2001, § 51, without any procedure for implementing it. This Court suggested in several cases that the Legislature do so, but the Legislature failed to respond. Finally, in Harris, the Court explicitly discussed this problem and concluded that the Court not only had the authority but was compelled to set forth a procedure which would protect defendants’ constitutional due process rights. For this reason § 860.1 cannot be read as any expansive statement of Legislative intent. It is narrowly drawn because it was a legislative remedy for a narrow problem identified by this Court.

¶ 8 Three statutes govern judge sentencing procedures. These statutes also address a narrow and unusual situation. Jury sentencing is the norm in Oklahoma. The Oklahoma constitution provides for unanimous jury sentencing in criminal felony cases. The statutes set forth various procedures for deliberations, verdict, etc., but provide no guidance regarding evidence to be presented in jury sentencing procedures beyond those generally governing the admissibility of evidence. Sections 973-975 were necessary to address the relatively rare instances where jurors do not recommend punishment. As the normal procedures could not apply under these circumstances, the Legislature had to specify procedures. These statutes carve out a judicial sentencing exception to the general rule of jury sentencing. The Legislature had to specifically delineate an entire process. In keeping with traditional statutory interpretation, I presume that the Legislature created this process by reflecting its understanding of common law jury practice, governed by the general statutes, and adapting it to judge sentencing situations.

¶ 9 The parties before this Court have argued that adoption of a second stage to allow for individualized sentencing usurps the legislative function. It does not. These arguments seem to assume that, as a matter of policy, unless the Legislature has explicitly required or promulgated a procedure, this Court has no ability to act. Understandably, no party offers a coherent explanation of this assumption. Rather, they appear to assume that courts cannot act unless a legislature has already commented on an issue by statute; that is, the legislature is the only legitimate source of law. This is not only incorrect, it is absurd. The state and federal constitutions constitute a body of law su-perceding any legislation, and must be interpreted by the judicial, not legislative, branch. “It is emphatically the province and duty of the judicial department to say what the law is.” In addition, much of this country’s law began as, and remains, common law, which is interpreted by the judiciary. Courts are authorized or required to promulgate rules and procedures implementing statutes or constitutional rights, even where the procedures have not been initially set forth by the legislative branch. Most courts are aware of and deferential to the legislature’s role in enacting law. However, no court has taken that deference to such extremes that it has agreed to abdicate its authority to interpret and enforce questions of law. Such a legislation-oriented view of law misunderstands the roles of the legislative and judicial branches. It also appears to require the Legislature to enact specific laws for every eventuality. Traditional statutory interpretation begins by finding the statutes which cover a general area of law, then looking for any specific statutes covering a particular issue. In the absence of specific statutes, the general statutes apply. Here, in the absence of specific statutes authorizing a sentencing stage in felony cases, we should turn to the statutes governing general admissibility of evidence in criminal trials, plus the appropriate constitutional provisions. I believe the statutes support the right to individualized sentencing and do not preclude adoption of a procedure to implement that right. I would do so. I dissent.

      . We want to compliment the parties and Amicus for providing the Court with insightful, professional analysis of the legal issues presented through their respective briefs.

      . This is not supported by the statutory language of the Evidence Code. The Code certainly prohibits aggravating and mitigating evidence from being used during a first stage to secure a conviction, since this type of evidence is not relevant to any criminal charges. However, the issue before the Court concerns sentencing, after a determination of guilt has been made. In sentencing, aggravating and mitigating evidence becomes relevant because it is material to the question of an appropriate sentence, and character evidence becomes an aid to the jury. The defendant is no longer prejudiced by introduction of this evidence because his guilt is established, and his previous acts and character are precisely what jurors are considering in determining an appropriate punishment.

      . Brief of Appellee in Response to This Court’s Order Dated June 6, 2002, at 3.

      . See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 111-12, 102 S.Ct. 869, 874-75, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 602-03, 98 S.Ct. 2954, 2963-64, 57 L.Ed.2d 973 (1978)(plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)(plurality opinion).

      . Williams v. People of the State of N.Y., 337 U.S. 241, 246, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949).

      . 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).

      . Two Justices noted that, given the unique and irrevocable nature of the death penalty, the constitutional right to individualized sentencing was not present in non-capital cases. Harmelin, 501 U.S. at 995-96, 111 S.Ct. at 2701-02 (plurality opinion)(Scalia, Justice, joined by Chief Justice Rhenquist). Three Justices stated that the Eighth Amendment proportionality rule applies to non-capital cases, but limited the consideration of proportionality in most non-capital cases to analysis of the particular offense and offender, which requires consideration of individual characteristics in sentencing. Harmelin, 501 U.S. at 995-96, 111 S.Ct. at 2703 (Kennedy, Justice, concurring in part and concurring in the judgment, joined by Justices O’Connor and Souter). The remaining Justices argued for a broad application of the proportionality rule to non-capital cases. Harmelin, 501 U.S. at 1021, 111 S.Ct. at 2716 (White, Justice, dissenting)(joined by Justices Stevens and BIackmun)(Justice Marshall agreed but wrote separately to emphasize his conclusion that capital punishment is unconstitutional, 501 U.S. at 1027-28, 111 S.Ct. at 2719). See also Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

      . 28 U.S.C. §§ 991-998.

      . 28U.S.C. § 991(b)(1).

      . 28 U.S.C. § 994(d)(l)-(ll).

      . Koon v. U.S., 518 U.S. 81, 91, 116 S.Ct. 2035, 2043, 135 L.Ed.2d 392 (1996). See Burns v. U.S., 501 U.S. 129, 133-34, 111 S.Ct. 2182, 2184-85, 115 L.Ed.2d 123 (1991); Mistretta v. U.S., 488 U.S. 361, 374, 109 S.Ct. 647, 656, 102 L.Ed.2d 714(1989).

      . Giles v. State, No. F-91-44, slip op. at 6-7 (Okl.Cr. Jan. 11, 1993) (not for publication) (introduction in second stage of document showing defendant's suspended sentence had been revoked provided the sentencing jury with valuable information).

      . State v. Hunter, 1990 OK CR 13, 787 P.2d 864, 867; see 22 O.S.2001, § 996.3 (Oklahoma Youthful Offender Act).

      . 1995 OK CR 49, 904 P.2d 130, 137.

      . Burns v. U.S., 501 U.S. 129, 136, 111 S.Ct. 2182, 2186, 115 L.Ed.2d 123 (1991).

      . Id.

      . Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803).

      . 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

      . 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

      . 1993 OKCR6, 845 P.2d 896.

      . 1962 OK CR 15, 369 P.2d 187.

      .22 O.S.2001, §§ 973-75. Section 973 allows aggravating and mitigating evidence where punishment is left to the trial court, either by guilty plea or because the jury fails to recommend punishment. Section 974 provides that the evidence shall be made through depositions or testimony in open court. Section 975 provides that the court may not receive aggravating or mitigating evidence bearing on punishment except as provided in §§ 973 and 974.


author: CHAPEL, Judge:

text:
    2002 OK CR 35
    Osbaldo TORRES, Appellant, v. STATE of Oklahoma, Appellee.
    No. PCD-2002-1047.
    Court of Criminal Appeals of Oklahoma.
    Oct. 31, 2002.

      Vicki Ruth Adams Werneke, Post-Conviction Attorney, Norman, Oklahoma, Attorney for Petitioner.
    No response required for Respondents.
   OPINION DENYING SUBSEQUENT APPLICATION FOR POST-CONVICTION RELIEF, DENYING REQUEST FOR STAY OF EXECUTION, AND DENYING REQUEST FOR EVIDEN-TIARY HEARING

CHAPEL, Judge:

¶ 1 Osbaldo Torres was tried by jury, convicted of first degree murder and other charges, and received the death penalty in the Oklahoma County District Court, Case No. CF-1993-4302. This Court affirmed Torres’s conviction for murder, and the United States Supreme Court denied Torres’s petition for certiorari. This Court denied Torres’s first Application for PosWConviction Relief on August 4, 1998. The District Court for the Western District of Oklahoma denied Torres’s Petition for Writ of Habeas Corpus on August 23, 2000, and Torres’s appeal from that decision is pending in the Tenth Circuit Court of Appeals. On August 20, 2002, Torres filed a second Application for PosWConviction Relief with this Court.

¶ 2 This Court may not consider the merits of a subsequent application for post-conviction relief “unless the application contains sufficient specific facts establishing that the current claims and issues have not been and could not have been presented previously in a timely original application or in a previously considered application filed under this section, because the factual or legal basis for the claim was unavailable.” A legal basis is unavailable if it (a) either was not previously recognized or could not have been reasonably formulated from a decision of an enumerated appellate court, or (b) is a new rule of constitutional law given retroactive effect by an enumerated appellate court. A factual basis is unavailable if it could not be previously ascertained through the exercise of reasonable diligence.

¶ 3 In both his propositions of error Torres relies on Ring v. Arizona, a recent case in which the United States Supreme Court formulated a new rule of constitutional law. In Ring, the United States Supreme Court determined that a capital jury must make any factual findings bearing on capital punishment beyond a reasonable doubt. In Proposition I Torres argues that, under Ring, this Court may not reweigh the evidence of aggravating circumstances after invalidating an aggravating circumstance. This Court has previously held it has the authority to reweigh aggravating and mitigating circumstances on appeal. Torres argues that decision has been superceded by the Ring requirement that capital juries make the factual findings prerequisite to a death sentence. In Proposition II Torres claims the instructions in this ease were unconstitutional because jurors were not instructed that aggravating circumstances must outweigh mitigating evidence beyond a reasonable doubt. This Court has repeatedly rejected this claim.

¶ 4 In Oklahoma, jurors are the actual and ultimate fact-finders throughout both stages of a capital trial. A defendant is only eligible for the death penalty if one or more aggravating- circumstances are present. Where the case is tried to a jury, jurors make the factual findings that aggravating circumstances exist. Jurors must find any aggravating circumstances unanimously beyond a reasonable doubt. At that point, the jury may consider imposing a sentence of death. However, jurors must find that aggravating circumstances outweigh mitigating evidence before imposing a death sentence, and even then jurors are not required to impose death.

¶ 5 Torres argues that Oklahoma jurors should be instructed that aggravating circumstances must outweigh mitigating evidence beyond a reasonable doubt, and that an appellate court may not reweigh aggravating and mitigating evidence in the jury’s place. He argues that this weighing process is a substantive element of capital murder. He claims the jury must conduct the weighing process according to the fact-finding standard set forth in Ring, and argues that a jury must reweigh the evidence if one aggravating circumstance is found invalid on appeal.

¶ 6 Torres misunderstands the structure of Oklahoma’s death penalty statutes. First, a defendant must be found guilty of first degree murder and at least one aggravating circumstance must be alleged. Next, the State must present evidence supporting the aggravating circumstances, and jurors must find at least one aggravating circumstance unanimously beyond a reasonable doubt, before a defendant is eligible for the death penalty. Ring describes a substantive element of a capital offense as one which makes an increase in authorized punishment contingent on a finding of fact. Using this description, the substantive element of capital murder in Oklahoma is the jury’s finding of the aggravating circumstance necessary to support a capital sentence. It is that finding, not the weighing of aggravating and mitigating circumstances, that authorizes jurors to consider imposing a sentence of death. That is, the increase in punishment from life imprisonment without parole to the death penalty is contingent on the factual finding of an aggravating circumstance.

¶ 7 Oklahoma’s provision that jurors make the factual finding of an aggravating-circumstance beyond a reasonable doubt is all that Ring requires. Once that finding is made, the substantive elements of the capital crime are satisfied. Contrary to Torres’s argument, this Court does not engage in fact-finding on a substantive element of a capital crime when reweighing evidence on appeal. The jury has already found the substantive facts — the existence of aggravating circumstances — and this Court does not substitute its judgment for that of the jury’s regarding that finding when reweighing. The jury itself, having found an aggravating circumstance, is free to balance aggravating circumstances and mitigating evidence. These propositions are denied.

Decision

The Subsequent Application for Post-Conviction Relief is DENIED.

LUMPKIN, P.J.: concur.

JOHNSON, Y.P.J.: concur.

STRUBHAR, J.: concur.

LILE, J.: concur.

      . Torres v. State, 1998 OK CR 40, 962 P.2d 3, cert, denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999).

      . Torres v. State, Case No. PCD-1998-213 (Okl. Cr. August 4, 1998) (Order not for publication).

      . Torres v. Gibson, Case No. CIV-99-155-R (W.D.Okla. August 23, 2000).

      . Torres v. Mullen, Case No. 00-6334.

      . 22 O.S.2001, § 1089(D)(8).

      . 22 O.S.2001, § 1089(D)(9).

      . 22 O.S.2001, § 1089(D)(9).

      . -U.S.-, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We review the claim on its merits. 22 O.S.2001, § 1089(D)(9).

      . Ring,-U.S. at---,-, 122 S.Ct. at 2439-40, 2443; see also Apprendi v. New Jersey, 530 U.S. 466, 482-83, 120 S.Ct. 2348, 2358-59, 147 L.Ed.2d 435 (2000) (jury must find fact authorizing greater punishment beyond a reasonable doubt).

      . Sellers v. State, 1991 OK CR 41, 809 P.2d 676, 691, cert, denied, 502 U.S. 912, 112 S.Ct. 310, 116 L.Ed.2d 252.

      . 21 O.S.2001, §§ 701.10, 701.12.

      . 21 O.S.2001, § 701.11. A capital jury trial maybe waived. 21 O.S.2001, § 701.10(B).

      . 21 O.S.2001, § 701.11; Oklahoma Uniform Jury Instructions — Criminal (OUJI-CR) 4-72.

      . 21 O.S.2001, § 701.11; OUJI-CR 4-76; OUJI-CR 4-80. Mitigating circumstances do not have to be found unanimously or beyond a reasonable doubt. OUJI-CR 4-78.

      . Jurors are instructed they must unanimously find that aggravating circumstances "outweigh” mitigating evidence. OUJI-CR 4-80.

      . 21 O.S.2001, § 701.10.

      . 21 O.S.2001, §§ 701.10, 701.11.

      . Ring, — U.S. at —, 122 S.Ct. at 2439. See also Apprendi, 530 U.S. at 494, n. 19, 120 S.Ct. at 2365, n. 19 (an increase beyond a maximum authorized statutory sentence is the functional equivalent of an element of a greater offense).


author: MITCHELL, J:

text:
    2002 OK CIV APP 107
    Tammy BROWN, Plaintiff/Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY and State Farm General Insurance Company, Defendants, and JJMA Investigations and Consultants and Jody Cooper, Defendants/Appellees.
    No. 97,485.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    July 22, 2002.
    Certiorari Denied Oct. 15, 2002.

      Richard D. Gibbon, Tulsa, for Plaintiff/Appellant.
    Ray H. Wilburn, Michael J. Masterson, Philard L. Rounds, Paul A. Derks, Tulsa, for Defendants/Appellees.
   MITCHELL, J:

¶ 1 Plaintiff/Appellant, Tammy Brown (“Brown”), seeks review of an order granting summary judgment in favor of Defendants/Appellees, JJMA Investigations and Consultants (“JJMA”) and Jody Cooper (“Cooper”). Defendant State Farm Fire and Casualty Company (“State Farm”) issued an insurance policy on Brown’s Henryetta, Oklahoma home covering loss due to fire. On March 17, 2000, and again on March 18, 2000, fires occurred at the property causing damage alleged to be in excess of $60,000.00. State Farm engaged Defendants/Appellees, JJMA/Cooper, to investigate the cause of the blaze. In their report, JJMA/Cooper concluded, without interviewing either Brown or any of the fire-fighters involved, that there was only one fire, and that it resulted from “the deliberate act of a person or persons.” The report also stated that some of the damage to the home that the fire-fighters caused in battling the blaze existed prior to the fire. Based at least in part on this report, which it believed to be accurate, State Farm denied Brown’s claim under the policy.

¶ 2 Brown filed suit, alleging bad faith and breach of contract on the part of State Farm, as well as negligent investigation and tortious interference with contractual relations on the part of JJMA/Cooper. Brown settled her claims against State Farm for an undisclosed amount and State Farm is not a party to this appeal.

¶ 3 In granting JJMA/Cooper’s motion for summary judgment on Brown’s remaining claims, the trial court recognized that while there are no reported cases on point in Oklahoma, a majority of courts in other states have held that an insured cannot maintain a separate tort action for negligence directly against an independent insurance investigator employed by the insurer. Noting the lack of contractual privity between a policy holder and an independent insurance investigator, these out-of-state courts have concluded that an investigator owes no duty of care to an insured with regard to the handling of an investigation and that any liability in negligence exists solely between the insurer and its investigator. Consistent with this approach, the trial court held that Brown could not pursue a negligence claim directly against JJMA/Cooper as a matter of law.

¶ 4 Concerning Brown’s claim for tortious interference with contract, the trial court also ruled in favor of JJMA/Cooper, citing “a complete lack of evidence” tending to show that JJMA/Cooper intentionally induced State Farm to deny Brown’s insurance claim. Consequently, the trial court held that Brown also failed to make out a prima facie case of tortious interference with contract. This appeal ensued.

¶ 5 The novel question before this Court is what duty, if any, an independent investigator or adjuster retained by an insurance company owes to one who holds an insurance policy issued by said company. Also before this Court is the question of whether an insured may bring a tortious interference with contract action directly against an independent investigator hired by the insurance company and, if so, whether Brown offered evidence sufficient to defeat summary judgment on her tortious interference claim.

I. Negligence

¶ 6 “The threshold question in any suit based on negligence is whether defendant has a duty to the particular plaintiff alleged to have been harmed.” Rose v. Sapulpa Rural Water Co., 1981 OK 85, ¶ 17, 631 P.2d 752, 756. Whether such a duty exists is a question of law. Wofford v. Eastern State Hosp., 1990 OK 77, ¶ 22, 795 P.2d 516, 521. We review questions of law de novo, which involves a plenary, independent and non-deferential examination of a trial court’s legal rulings. Jackson v. Jackson, 2002 OK 25, ¶ 2, 45 P.3d 418, 422.

¶ 7 “Oklahoma courts have recognized that the existence of a duty depends on the relationship between the parties and the general risks involved in the common undertaking.” Wofford, ¶ 10, 795 P.2d at 519. “Duty of care is not a concept that arises only by statute.... Whenever a person is placed in such a position with regard to another that it is obvious that if he did not use due care in his own conduct he will cause injury to the other, the duty at once arises to exercise care commensurate with the situation in order to avoid such injury.” Id., citing Union Bank of Tucson v. Griffin, 1989 OK 47, ¶ 13, 771 P.2d 219, 222.

¶ 8 The most important consideration in establishing duty is foreseeability. Wofford, ¶ 11, 795 P.2d at 519. “As a general rule, ‘a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous.’ ” Id., citing Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 131 Cal.Rptr. 14, 22, 551 P.2d 334, 342 (1976). “Foreseeability as an element of duty establishes a ‘zone of risk’, that is, whether the conduct ‘creates a generalized and foreseeable risk of harming others.’ ” Smith v. Speligene, 1999 OK CIV APP 95, ¶ 11, 990 P.2d 312, 315, citing Del-brel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶ 8, 913 P.2d 1318,1321 and McCain v. Florida Power Corp., 593 So.2d 500, 503.

¶ 9 While it is well-settled that a non-insurer defendant, such as an adjuster or investigator, who is not a party to the insurance contract is not subject to an implied duty of good faith and fair dealing vis-a-vis the insured, see Timmons v. Royal Globe Ins. Co., 1982 OK 97 ¶ 17, 653 P.2d 907, 913, there are no reported decisions in Oklahoma addressing whether independent adjustors or investigators owe a duty of care to insureds, such that they may be held liable directly to insureds in negligence. The states are divided on the issue, with the majority holding that independent investigators are not directly liable to insureds in negligence.

¶ 10 The decision of New Hampshire’s Supreme Court in Morvay v. Hanover Ins. Co., 127 N.H. 723, 506 A.2d 333 (1986), is exactly on point. Plaintiffs, the Morvays, filed a claim under their insurance policy with Hanover after their property was damaged by fire. Hanover hired Verity Research Limited to investigate the fire. Norman Roberts, the Verity investigator assigned to the case, filed a report with Hanover indicating that the fire was incendiary. Consequently, Hanover refused payment on the Morvays’ claim. In the resultant lawsuit, in addition to claims against Hanover, the Morvays alleged that Verity and Roberts were liable for negligent investigation. The trial court dismissed the claim, and the New Hampshire Supreme Court reversed. The court reasoned that the investigators “were fully aware that the plaintiffs could be harmed financially if they performed their investigation in a negligent manner and rendered a report to Hanover that would cause the company to refuse payment to the plaintiffs,” and that they also knew that there was “a mutual duty of fair dealing between Hanover and the plaintiffs.” Id. at 335. The court further reasoned that “[a]lthough the contractual relationship exists solely between the insurer and the investigators, and the investigators may give reports only to the insurer, the insured is a foreseeably affected third party.” Id. Accordingly, the New Hampshire Supreme Court held that “the investigators owe a duty to the insured as well as to the insurer to conduct a fair and reasonable investigation of an insurance claim and that the motion to dismiss should not have been granted.” Id.

¶ 11 While there is no comparable Oklahoma jurisprudence on point, there are several Supreme Court cases that shed light on this issue. For example, in Keel v. Titan Const. Corp., 1981 OK 148, 639 P.2d 1228, the Supreme Court analyzed whether homeowners could state a cause of action for negligent breach of contract as third-party beneficiaries of an agreement between their construction company and an architect who improperly designed an auxiliary solar heating system for homeowners’ house in violation of the architect’s contractual duty to the construction company. The Court reasoned that because the architect must have known of the homeowners’ general existence, if not their specific identities, both the construction company and the homeowners were primary beneficiaries of the contract between the construction company and the architect, even though the homeowners were not actually parties to the contract. Id. ¶ 6, 639 P.2d at 1231.

¶ 12 Because the action was for negligent breach of contract, the Supreme Court concluded that “the question of whether there is or there is required to be privity ... is not here involved. This being an action in tort, the question ... becomes one of proximate cause.” Id. ¶ 11, 639 P.2d at 1232. Noting that a negligent failure to perform the services promised in a contract “with care, skill, reasonable experience and faithfulness ... is a tort, as well as a breach of contract,” the Court held that “liability for negligent breach of a contract with a third party is not necessarily dependent upon a pre-existing privity in legal relationship between the person injured and the person causing the injury” and that the allegations in the homeowners’ petition were thus sufficient to state a cause of action for negligent breach of contract against the architect. Id. ¶¶ 14, 15, 639 P.2d at 1232.

¶ 13 Having determined in Keel that privity has no applicability in the realm of Oklahoma tort law, the Supreme Court, in Bradford Securities v. Plaza Bank and Trust, 1982 OK 96, ¶¶5-6, 653 P.2d 188, 190-91, held that a bond counsel may be liable to a third party for malpractice for breaching a duty owed to the client. The Supreme Court reasoned that while the nu-merosity or indeterminancy of third parties potentially injured by a defendant’s tortious acts may be “a telling argument as to whether the harm to a particular plaintiff was foreseeable to the defendant,” the significance of this consideration “is relegated to foreseeability as it relates to proximate cause and must be considered only in that light.” Id. (emphasis in original). In reaching this conclusion, the Supreme Court expressly rejected the oft-cited opinion by Cardozo, J., in Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), holding that defendants are not liable for professional malpractice to third parties for the breach of a duty to the client and held that:

the formula that should govern the jury in determinating the issue of negligence is, is the conduct of an ordinarily prudent man based upon the dangers he should reasonably foresee TO THE PLAINTIFF OR ONE IN HIS POSITION in view of all the circumstances of the case such as to bring the plaintiff within the orbit of defendant’s liability; not the particular hurt that actually befell the plaintiff, but the likelihood of some such harm as he suffered; and if the defendant fails to exercise the care that an ordinarily prudent person should have exercised under the circumstances, he is liable for the injuries plaintiff suffered as a result of such negligence.

Id., ¶ 10, 653 P.2d at 191 (emphasis in original).

¶ 14 In addition to its decisions regarding architects and bond counsel, the Supreme Court has also held that an independent auditor’s duty of care in auditing a client’s financial statements extends to persons other than the audit client, where those third parties were foreseeable and it was known that they would rely on the agent’s professional services. In Stroud v. Arthur Andersen & Co., 2001 OK 76, 37 P.3d 783, a former client sued Andersen alleging the negligent performance of financial audits and seeking damages for economic injuries allegedly emanating from flawed audits of Stroud Crop, Inc. (SCI) and Insurance Company of the Prairie States’ (ICOPS) financial statements. Steve Stroud was primary owner of both companies. Plaintiffs claimed that Andersen owed them a professional duty of care which it breached by rendering flawed audits and that in reliance upon Andersen’s defective work product both Stroud and SCI made several business decisions which resulted in their injury. Andersen contended that to the extent the alleged economic injuries were compensable at all, they would be so only to the corporate entity (SCI) and not to its shareholder (Stroud), because Stroud was not a party to the audit contract.

¶ 15 Noting that it was “mindful of the enhanced obligations and responsibilities owed to the public by a person who dons the mantle of a professional,” the Supreme Court cited with favor the Restatement (Second) of Torts § 552, “Information Negligently Supplied for the Guidance of Others”:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Restatement (Second) Torts, § 552 (emphasis added); Stroud, ¶ 34, 37 P.3d at 794. The Supreme Court held that Stroud was a proper party plaintiff as an individual because it was foreseeable that he would rely on Andersen’s audits and he thus fell within the ambit of that group of persons to whom Andersen owed a duty of care. Id. ¶ 17, 37 P.3d at 789.

¶ 16 Unlike in Stroud, only State Farm took any affirmative action in reliance on JJMA/Cooper’s investigation report; Brown herself did not. In the context of her insurance claim, however, it was reasonable for Brown to expect that State Farm, through it’s agent JJMA/Cooper, would perform a non-negligent investigation of the fire. Indeed, it is indisputable that “[b]oth the insured and the insurer [had] a stake in the outcome of the investigation.” Morvay, 506 A.2d at 335. Whether the Oklahoma Supreme Court would find that an insured’s financial interest in the outcome of an insurance investigation would satisfy the reliance component discussed in Stroud is unclear.

¶ 17 Our analysis of Oklahoma case law is not limited to Keel, Bradford, and Stroud, however. In Lockhart v. Loosen, 1997 OK 103, 943 P.2d 1074 — an opinion cited by both parties in their briefs on summary judgment — the plaintiff, Ms. Lockhart, sought damages in simple negligence against her husband’s paramour, Ms. Loosen, for transmitting genital herpes to Mr. Lockhart, who then infected plaintiff. In reversing the trial court’s dismissal of Ms. Lockhart’s claim, the Supreme Court reasoned that:

[a]n essential element of Lockhart’s proof is that a duty of care is owed to her by Loosen. Actionable negligence requires that Loosen’s purported failure to inform Mr. Lockhart of her contagion be the direct cause of the plaintiffs injury — i.e., the contraction of herpes. While normally Loosen would owe no duty of care to the wife, a third party, every person is under a duty to exercise due care in using that which he/she controls so as not to injury another. If Loosen knew or should reasonably have known that she had herpes and copulated with Mr. Lockhart during a period when she was infectious, under common-law principles she had a duty to warn him of her contagion. Further, if Loosen knew that Mr. Lockhart was copulating with another person and could identify that person [whether that person was married to Mr. Lockhart or not] it would be reasonably foreseeable to Loosen that silence about her infectious state — ie. a breach of the duty of care she owed to her sexual partner — could result in the transmittal of herpes to that third person. Under this hypothetical factual scenario, the trial court could determine that it was reasonably foreseeable to Loosen that a natural and probable consequence of her silence would be the transmittal of this highly contagious disease to this plaintiff.

Id., ¶ 13, 943 P.2d at 1080 (emphasis in original). Given that it was unclear from the record whether, before Mr. Lockhart engaged in sex with his wife, either Ms. Loosen informed Mr. Lockhart of her disease or Mr. Lockhart discovered his infection on his own — either of which would have been supervening causes breaking the chain of causation between Ms. Loosen and Ms. Lockhart — the Supreme Court held that this dearth of facts rendered the trial court’s dismissal of Ms. Lockhart’s claim premature, and remanded the action to the trial court for additional findings of fact.

¶ 18 In Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, 725 P.2d 300 — which Brown cited in her summary judgment response — the Supreme Court again reversed the trial court’s dismissal of the plaintiffs negligence claim, holding that:

one who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. It is not unreasonable to expect a commercial vendor who sells alcoholic beverages for on the premises consumption to a person he knows or should know from the circumstances is already intoxicated, to foresee the unreasonable risk of harm to others who may be injured by such person’s impaired ability to operate an automobile.

Id., ¶ 17, 725 P.2d at 304. Recognizing that “[ojrdinarily the question of causation in a negligent tort case is one of fact for the jury and becomes one of law only when there is no evidence from which the jury could reasonably find a causal nexus between the negligent act and the resulting injuries,” the Supreme Court concluded that a jury could find that the tavern keeper “could have reasonably foreseen and anticipated the possible consequences in selling alcoholic beverages to a noticeably intoxicated patron who intended to drive an automobile and that the sale may have been a proximate cause of the alleged injuries.” Id., ¶ 23, 725 P.2d at 305.

¶ 19 We believe the decision of the New Hampshire Supreme Court in Morvay is the result most consistent with the Oklahoma decisions in Lockhart and Brigance. Accordingly, we hold, as did Morvay, that independent insurance investigators “owe a duty to the insured as well as to the insurer to conduct a fair and reasonable investigation of an insurance claim.” Morvay, 506 A.2d at 335. For this reason, it was error for the trial court to grant JJMA/Cooper’s motion for summary judgment on Brown’s negligence claim.

II. Tortious Interference with Contract

¶20 To recover in an action for malicious interference with contract or business relations a plaintiff must show: (1) That he or she had a business or contractual right that was interfered with; (2) that the interference was malicious and wrongful, and that such interference was neither justified, privileged nor excusable; and, (3) that damage was proximately sustained as a result of the interference. Mac Adjustment, Inc. v. Property Loss Research Bureau, 1979 OK 41, ¶ 5, 595 P.2d 427, 428. It is well-settled that one who is acting in a representative capacity for a party to a contract cannot be liable for wrongfully interfering with that contract. Voiles v. Santa Fe Minerals, Inc., 1996 OK 13, ¶ 18, 911 P.2d 1205, 1210 (holding that defendant who was acting as agent for mineral owners could not, as a matter of law, intentionally interfere with contracts between mineral owners and their lessees). Although an agent or employee of a principal can be held liable for tortious interference with a contract between the principal and a third party where the agent or employee acts outside the scope of his agency or employment, Brown has made no such claim here. Martin v. Johnson, 1998 OK 127, ¶ 32 975 P.2d 889. Because JJMA/Cooper was acting as an agent of State Farm in carrying out the fire investigation, it cannot, absent an allegation that it was acting outside the scope of its agency, be liable to Brown for tortious interference with Brown’s insurance contract with State Farm.

¶ 21 In addition, we see no reason to disturb the trial court’s finding as to the “complete lack of evidence submitted by the plaintiff which would present the jury with any questions of fact which would tend to show the investigatory company intentionally induced the insurance company to deny this claim by any predatory activity, self dealing, or other tortious conduct.” For purposes of reviewing a summary judgment, this court, like the trial court, makes a de novo review of the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. Fehring v. State Ins. Fund, 2001 OK 11, ¶ 3, 19 P.3d 276, 278. Just as in the trial court, all inferences and conclusions drawn from the evidentiary materials are viewed in a light most favorable to the non-moving party. Id. Because, as noted by the trial court, such material evidence is indeed lacking, the summary judgment on Brown’s tortious interference with contract claim is affirmed.

¶ 22 AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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

      . Brown did not allege bad faith against JJMA/Cooper.

      . The following cases hold that independent insurance adjusters do not have a duty of care visa-vis the insured: Sanchez v. Lindsey Morden Claims Services, Inc., 72 Cal.App.4th 249, 84 Cal.Rptr.2d 799, (Cal.Ct.App.1999) (holding that policy concerns — including the fact that adjuster’s role in claims process is secondary to that of insurer but duty of care could expose adjuster to greater liability, the improbability that imposition of a duty would enhance deterrence, the likelihood that a duty would subject adjuster to conflicting loyalties — as well as the general law of agency militate against imposing a duty of care owed by insurer-retained adjusters to insureds); Meineke v. GAB Business Services, Inc. 195 Ariz. 564, 991 P.2d 267, 270-71 (Ct.App. 2000) (holding that the relationship between adjuster and insured is sufficiently attenuated by the insurer's control over the adjuster that adjuster owes no legal duty to insureds and is not subject to negligence liability for allegedly mishandling claim); Dear v. Scottsdale Ins. Co., 947 S.W.2d 908, 917 (Tex.App.1997) (holding that insured may not maintain negligence action against adjuster because adjuster's duties are contractual ones owed solely to insurer); King v. Nat'l Security Fire and Casualty Co., 656 So.2d 1338, 1339 (Fla.Dist.Ct.App. 1995) (holding that insured may not bring simple negligence action against independent insurance adjuster because adjuster's duty arises out of the underlying contract between adjuster and insurer and is owed to insurer only; adjuster does not owe a duty to insured unless insured is suing for an intentional tort); Velastequi v. Exchange Ins. Co., 132 Misc.2d 896, 505 N.Y.S.2d 779, 780 (N.Y.Civ.Ct. 1986) (holding adjuster's duty is to insurer and based in contract; therefore, insured may not sue adjuster for negligence in investigating claim).
      Whereas the Supreme Courts of New Hampshire and Alaska have held that independent insurance adjusters are liable in negligence directly to insureds: Morvay v. Hanover Ins. Co., 127 N.H. 723, 506 A.2d 333, 335 (1986) (reversing dismissal of insured’s negligence claim against independent agents hired by insurer to investigate cause of fire, and holding that agents owe a duty to insureds as well as to insurer to conduct a fair and reasonable investigation despite lack of privity with insureds, where agents were fully aware that insureds could be harmed financially if agents were to perform their investigation in a negligent manner and render a report that would cause insurer to refuse payment to insureds); Continental Ins. Co. v. Bayless and Roberts, Inc., 608 P.2d 281, 287-88 (Alaska 1980) (holding that insurance adjuster, as an agent acting within the scope of his authority, could be held liable in negligence directly to insured for failure to adequately investigate wrongful death claim despite lack of privity, which is necessary only for claim of breach of fiduciary duty of good faith arising out of insurance contract); see also Bass v. California Life Ins. Co., 581 So.2d 1087, 1090 (Miss. 1991) (holding that while adjusters are not liable to insureds for simple negligence in adjusting claims, they can incur liability when their conduct constitutes gross negligence, malice, or reckless disregard for insureds’ rights); cf. Scott Wetzel Services, Inc. v. Johnson, 821 P.2d 804 (Colo.1991) (holding that an independent claims adjusting service owes a duty of good faith and fair dealing to a claimant asserting a right to benefits under Colorado’s workers’ compensation act, but noting that the duty arises from the act itself, and not from the contract between the employer and the adjusting service or from the law of principal and agent).


author: CARL B. JONES, Judge:

text:
    2002 OK CIV APP 105
    J. Ladon DEWRELL and Carol A. Dewrell, husband and wife, Plaintiffs/Appellees, v. Kathleen R. LAWRENCE, Defendant/Appellant.
    No. 96,261.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Sept. 27, 2002.

      Ted W. Haxel, Purcell, For Plaintiffs/Ap-pellees.
    Tommy L. Sims, Lawton, For Defendant/Appellant.
   OPINION

CARL B. JONES, Judge:

¶ 1 This action was brought by J. Ladon Dewrell and Carol A. Dewrell (Dewrells), Appellees, for partition of 45 acres of land owned in undivided interests one-half by the Dewrells and one-half by Kathleen R. Lawrence (Lawrence), Appellant. The Dewrells and Lawrence are unrelated business partners who jointly purchased significantly improved property north of Lexington, Oklahoma (Ranch) and certain personal property located thereon. The Dewrells paid $225,000.00 cash for their undivided one-half interest. Lawrence contributed $100,000.00 of her own cash and borrowed the remaining $125,000.00 from the Dewrells under a promissory note and mortgage.

¶2 The Ranch has approximately 743 feet of frontage on Highway 77 and is improved with a small house, a large main barn and office, a climate controlled “show barn” used for high value show horses, a hay barn, a training track, outer and inner fencing, pipe and cable working pens and arenas. Lawrence resides on the Ranch and operates a horse breeding and showing business thereon. The Dewrells are Florida residents and do not intend to live in Oklahoma.

¶ 3 Lawrence agreed to the partition. The trial court appointed three commissioners and instructed them “to make partition of the property among the parties according to their respective interests, if such partition can be made without manifest injury.” The trial court further instructed “[i]f partition cannot be made, the [cjommissioners shall make a valuation and appraisement of the property.” The commissioners reported that partition in kind could not be made according to the parties respective interests without manifest injury to the parties and they appraised the property.

¶ 4 Lawrence filed her exception to the commissioners’ report urging the land can be partitioned in kind, and if not so partitioned, Lawrence would suffer “grave manifest injury.” Lawrence suggested the trial court resubmit the matter to the commissioners with instructions to partition the Ranch into various tracts of uneven sizes and values so the court may allot a parcel to Lawrence thereby providing her with a place to live and maintain her livelihood. The Dewrells requested the trial court to approve the commissioners’ report and order the property sold “on the courthouse steps.”

¶ 5 The cause was tried with both parties presenting witnesses and documentary evidence. Lawrence testified she desired 10-acres with 343 feet of frontage and the show barn and she suggested the remaining 35-acres and improvements thereon be allotted to the Dewrells. Lawrence desired that the trial court make the necessaiy adjustments, under the doctrine of owelty, to balance the monetary value of the property allocated to each party.

¶ 6 Mr. Dewrell testified the Ranch is a beautiful showplace and every acre is needed to facilitate the use and utility of the improvements on the Ranch. He testified he would not recover his investment from the 35-acres because this tract was located in the flood plain and had only approximately 400 feet of frontage. Mr. Dewrell testified he wanted the property sold so that the parties can equally profit or suffer their proportionate loss on the Ranch.

¶ 7 All three commissioners testified that based on their instructions to partition according to the parties respective one-half interests and the character, location, frontage and improvements of the ranch, it could not be partitioned in kind without manifest injury. Commissioner Fred Nolen testified the commissioners considered it inequitable to divide the ranch into one-half interests of unequal value. However, he also testified that had the commissioners been provided with different instructions permitting the division of the ranch into unequal allotments, then their opinion might have been different. On cross-examination, Commissioner Nolen agreed that to divide the ranch into a 10-acre and a 35-acre allotment would diminish the whole tract. But, on re-direct, Commissioner Nolen contradicted his earlier testimony by confirming he could not state with certainty, and without a lot of work and re-appraisal, that partitioning the ranch in unequal allotments would have a diminishment on the value of the ranch. Commissioner Ron Wil-hite testified he was in accord with Commissioner Nolen. On cross examination, commissioner George Musgrave testified the commissioners decided the ranch could not be divided because of “complications,” such as barns, houses and fences. On re-direct, commissioner Musgrave was asked if he had different instructions to divide the ranch in unequal allotments, was possible to do so without the parties suffering a dollar loss? He replied, “anything’s possible.”

¶ 8 Upon conclusion of trial, the trial court found the Ranch was overbuilt with tremendous improvements and any attempt to equalize the partition value by cutting out a piece of the Ranch would diminish the value of the whole property. The trial court also openly questioned whether it was legally possible to instruct the commissioners to specifically appraise to partition in kind without the parties agreeing to it and prior to the commissioners rendering an initial report and opinion that the property can be partitioned in kind. The trial court announced it must place great factual deference on the opinion of the commissioners that the ranch could not be partitioned in kind. The trial court denied Lawrence’s exception, approved the commissioners’ report and ordered the land sold. Lawrence filed a motion for new trial which was denied and this appeal ensued.

¶ 9 We begin with an analysis of the applicable law. Partition proceedings are governed by 12 O.S.2001 § 1501.1 et seq. The right to partition is absolute and the proceeding is one of equitable cognizance; therefore, equitable principals apply. Chesmore v. Chesmore, 1971 OK 49, ¶ 6, 484 P.2d 516, 518. “The prevailing rule is that as between partition in kind or a sale of the land and division of the proceeds, the courts and statutes favor a partition in kind, if it can be accomplished without manifest injury to the parties.” Diehl v. Hieronymus, 1967 OK 79, ¶ 10, 426 P.2d 368, 370-371.

¶ 10 Lawrence raised five propositions of error. We find proposition III to be disposi-tive, therefore, we will not address the other allegations of error. Lawrence urges the trial court erred when it determined that after the commissioners’ initial report had been submitted, and absent the parties’ agreement, it did not have the authority to resubmit the matter to the commissioners with instructions to determine if the ranch could be partitioned in unequal tracts.

¶ 11 The Dewrells’ concede the trial court openly questioned its authority to resubmit the matter to the commissioners with new instructions to partition the Ranch into separate tracts absent an agreement of the parties and/or a finding by the commissioners or the trial court that the Ranch could be partitioned in kind. However, they contend the trial court was aware of its authority to resubmit the matters to the commissioners, after exception is filed, if the trial court determined a partition in kind was supported by the evidence. They urge the trial court properly determined partition in kind was not supported by the evidence; therefore, it had no reason to resubmit the matter to the commissioners.

¶ 12 Our standard of review in a partition action is whether the trial court’s decision is either against the clear weight of the evidence, or is contrary to law. Cain v. Christie, 1997 OK CIV APP 7, ¶ 14, 937 P.2d 119,122. After reviewing the evidence in the record, we find the trial court erred when it failed to exercise its authority and consider re-submitting this matter to the commissioners under new instructions to allot unequal portions of the Ranch to the parties and invoke the doctrine of owelty. Id. at ¶ 13.

¶ 13 Title 12 O.S.2001 § 1507 specifically authorizes that “[f]or good and sufficient reasons appearing to the court, the commissioners may be directed to allot particular portions to any one of the parties.” In such event, the doctrine of owelty is available to the trial court in the exercise of its equitable powers, and the party who sought owelty is entitled to a judicial consideration of her application for same. Chesmore, 1971 OK 49 at ¶ 8, 484 P.2d at 519. The Oklahoma Supreme Court explained:

I[n] making divisions along natural and practical lines the allotments cannot always be made of equal area or value, and, when an allotment is made to a party which is in excess of his share, the court may require him to pay such excess, which is called owelty, to the other co-tenants. It would seem more equitable, in a proper case, to require the payment or receipt of a reasonable sum of money than to require lands to be sold as a whole, where a proportionately small sum is required to equalize the shares. The object of partition is a division of the property; a sale of the lands is justified only when partition in kind, with or without owelty, is impractical.

Chesmore at ¶ 6, 484 P.2d at 518-519 (citations omitted).

¶ 14 The trial court was concerned that it could not resubmit this matter for appraisal of unequal allotments unless the parties agreed. Chesmore explains the trial court’s error:

The general rule of equity requiring the payment of owelty does not give defendants an absolute right to receive a share of the land set off to them in kind and pay owelty to equalize the shares awarded to plaintiffs. The rule does give the court the power to consider the application of owelty, without regard to an agreement between the parties that he may do so. Ow-elty, like a division of the lands in kind, is within the broad equitable powers of the court in partition proceedings. The court will not be denied the exercise of its equitable powers in partition proceedings by the failure of all parties to agree that its inherent power may be so exercised.

Id. at ¶ 7, 484 P.2d at 519 (citations omitted).

¶ 15 The commissioners should have been instructed by the trial court to consider whether an allotment of a particular portion of the ranch to Lawrence along with owelty could be accomplished without manifest injury to the parties. The trial court still has the discretion to determine Lawrence’s desired 10-acre allotment along with owelty is not practicable or equitable. Accordingly, we reverse and remand to the trial court for further proceedings consistent with this opinion.

¶ 16 We are asked to award the Dewrells their appeal-related attorney fees pursuant to Rule 1.14(b), Oklahoma Supreme Court Rules, 12 O.S.2001, Ch. 15, App.; 12 O.S.2001 § 696.4(c) and 12 O.S.2001 § 1515. “Whenever there is statutory authority to award attorney fees in the trial of a matter, additional fees may be allowed (to the prevailing party) for legal services rendered in the appellate court.” Sisney v. Smalley, 1984 OK 70, ¶ 20, 690 P.2d 1048, 1051 (parenthesis in original).

¶ 17 We note § 1515 provides:

The court making partition shall tax the costs, attorney’s fees and expenses which may accrue in the action, and apportion the same among the parties, according to their respective interests, and may award execution therefore, as in other cases.

¶ 18 Assuming arguendo § 1515 mandated an award of appeal-related attorney fees to a prevailing party in a partition action, the Dewrells would not be considered “prevailing parties” in this appeal. The Dewrell’s request for appeal-related attorney fees is denied.

¶ 19 REVERSED AND REMANDED; MOTION FOR APPEAL-RELATED ATTORNEY FEES DENIED.

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