author: WATT, Vice Chief Justice. LAVENDER, J., OPALA, J.,

text:
    2002 OK 59
    Chad D. ALEXANDER, A. Marshall Snipes, Judith Pratt, Currie Ballard, Carolyn McLarty, Audrey L. Ewing, Don O’Nesky and Frank Keating, in his official capacity as Governor of the State of Oklahoma, Plaintiffs-Appellees, Steve Edwards and Colby Schwartz, Intervenors/Plaintiffs-Appellees, v. Stratton TAYLOR, in his official capacity as President Pro Tempore of the Oklahoma State Senate, and Larry E. Adair, in his official capacity as Speaker of the House of Representatives of the State of Oklahoma, Defendants-Appellants, Richard Allen, Roosevelt Milton, Greg Robinson and Joel Porter, Interve-nors/Defendants-Appellants.
    No. 97,836.
    Supreme Court of Oklahoma.
    June 25, 2002.
    As Corrected June 27, 2002.

      Fred A. Leibrock, William S. “Bill” Price, B. Kay Carel, Phillips, McFall, McCaffrey, McVay & Murrah, Oklahoma City, OK, Efrem Mark Braden, Baker & Hostetler, Washington, D.C., for Plaintiffs-Appellees, Chad D. Alexander, A. Marshall Snipes, Judith Pratt, Currie Ballard, Carolyn McLarty, Audrey L. Ewing, and Don O’Nesky.
    Kristye Kirk-Shores, Judy Terry, Office of the Governor, and Mike Hunter, Office of the Secretary of State, Oklahoma City, OK, for Plaintiff-Appellee, Frank Keating in his official capacity as Governor of the State of Oklahoma.
    Andrew W. Lester, Lester, Loving & Davies, P.C., Edmond, OK, for Interve-nors/Plaintiffs-Appellees, Steve Edwards and Colby Schwartz.
    Don G. Holladay, Holladay, Chilton & De-Guisti, Oklahoma City, OK, for Defendants-Appellants.
    Lee Slater, Oklahoma City, OK, for Defendant-Appellant, Stratton Taylor.
    Heidi J. Long, Holladay, Chilton & De-Guisti, Oklahoma City, OK, Thomas J. Per-relli, Jenner & Block, for Defendant-Appellant, Larry E. Adair.
    Ronald “Skip” Kelly, Oklahoma City, OK, for Intervenors/Defendants-Appellants, Richard Allen, Roosevelt Milton, Greg Robinson, and Joel Porter.
   OPINION

WATT, Vice Chief Justice.

FACTS AND PROCEDURAL BACKGROUND

¶ 1 Plaintiffs-Appellees, as residents and registered voters of the State of Oklahoma, filed their petition in this case, seeking in-junctive relief to ensure compliance with the federal laws governing congressional elections in the State of Oklahoma as a result of the 2000 Decennial Census. The petition was amended to request the additional relief of a declaration that The Oklahoma Congressional Redistricting Act of 1991, 14 O.S. § 5.1 et seq., is unconstitutional. Appellees alleged it was determined by the 2000 Census that the number of Congressional districts in Oklahoma must be reduced from six to five because Oklahoma’s population had failed to grow as fast as that of many other states since the 1990 Decennial Census. The 2000 census revealed that Oklahoma’s population as a percentage of the nation’s entire population decreased from what it had been under the 1990 census. Defendants-Appellants were sued in their official capacities.

¶ 2 Appellees alleged in their amended petition, filed February 21, 2002, that the Oklahoma Legislature had not yet adopted a redistricting plan and that the qualifying deadline for candidacy for the United States House of Representatives was July 10, 2002. They alleged that unless the Legislature adopted a redistricting plan in time for it to be implemented before the July 10, 2002 deadline, “the interests and rights of Plaintiffs and all Oklahoma voters in the enforcement of applicable election laws will be further compromised, and their rights under federal and Oklahoma law to participate in the congressional election process in a timely and equal manner will be further violated.”

¶ 3 As the basis of their request for relief, Appellees cited Art. 1, § 2 of the United States Constitution, as amended by the Fourteenth Amendment, § 2, which provides, in part, “the House of Representatives shall be composed of members chosen every second year by the people of the several states” and that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state_” Appel-lees requested that the court ensure enforcement of the laws and adopt and implement a congressional redistricting plan to be in place in sufficient time for the candidate qualification and election process to go forward according to the schedule established by Oklahoma law.

¶ 4 Appellants Stratton Taylor and Larry E. Adair filed a Motion to Stay Redistricting Proceedings, pending the earlier of (1) enactment by the Oklahoma Legislature of a new congressional redistricting plan; (2) the Legislature’s May 24, 2002 sirle die adjournment date; or (3) unanimous agreement among the parties that legislative enactment of a new redistricting plan was not reasonably anticipated to occur by the sine die adjournment date. Appellees objected to the' stay. The trial court overruled the motion to stay, and the case proceeded to trial.

¶ 5 Five redistricting plans were submitted to the court. They are identified as follows:

1. Governor’s, or Continuity, Plan, submitted by Appellees;
2. Senate Plan, submitted by Appellants;
3. Conference Committee Plan, submitted by Defendants and Defendants/Interve-nors;
4. House Plan #3, submitted by Defendants and Defendants/Intervenors; and
5. Edwards-Intervenors’ Plan

¶ 6 Following a five-day, non-jury trial, the court filed its judgment on May 31, 2002, establishing the Governor’s Plan as the Congressional redistrieting plan to be implemented for the State of Oklahoma. On June 5, 2002, a three-judge panel of the United States District Court for the Western District of Oklahpma entered an order in a pending case involving the same issues as those before us today. The federal court denied the motion of Defendants-Intervenors, Larry E. Adair and Stratton Taylor, to declare that the congressional redistricting plan implemented by the Oklahoma County District Court was void. The federal court’s order also stayed further proceedings there until the conclusion of the appeal process in this Court. Appellants filed their petition in error in this Court on June'7, 2002 and we granted Appellants’ motion to retain this appeal on June 12, 2002.

DISCUSSION

I.

THE OKLAHOMA COURTS HAVE JURISDICTION OVER THE ISSUES PRESENTED BY THIS APPEAL

¶ 7 Appellants argue that because of this Court’s opinion in Jones v. Freeman, 1943 OK 322, 146 P.2d 564 and its progeny, we should hold that Oklahoma courts are without jurisdiction to decide this matter. Appellants also rely on Smith v. Clark, 189 F.Supp.2d 503 (D.C.S.D.Miss.2002), prob. juris, sub nom., Branch v. Smith, — U.S. — , 122 S.Ct. 2355, 153 L.Ed.2d 178 (2002), in support of the proposition that Art. 1, § 4 of the United States Constitution deprives state courts of jurisdiction to consider congressional redistricting disputes. For the reasons stated below, we disagree with Appellants’ analysis and hold that the courts of the State of Oklahoma have jurisdiction to hear and decide this matter.

¶ 8 If we fail to act here, the obvious effect will be that the three judge federal district court that has been empaneled to consider the problem created by the failure of the legislature to agree on redistricting legislation will set new congressional districts in our stead. The parties agree that this will likely be the case. We deem such an outcome unsatisfactory based on both state law and the teachings of the United States Supreme Court.

¶ 9 No specific Oklahoma constitutional or statutory provision provides a procedural blueprint for how the trial court was to handle the issues presented to it here. Nevertheless, we hold that the trial court correctly assumed both that it had jurisdiction and that a justiciable controversy was presented because of Okla. Const., Art. 2, § 6, which provides:

The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.

Given the unsatisfactory alternative to Oklahoma courts hearing and deciding this case, we have reexamined our jurisprudence addressing our jurisdiction in such matters and now hold that the trial court had subject matter jurisdiction and a justiciable case or controversy was presented. Further, after carefully reviewing the record, we find that the trial court’s judgment was not clearly contrary to the weight of the evidence, is entitled to a presumption of correctness, and must, therefore, be affirmed.

¶ 10 In Smith v. Clark, which Appellants strongly rely on, a three judge federal district court in Mississippi enjoined the state courts from proceeding with carrying out the creation of new congressional districts. The court made clear that it was doing so for two reasons, neither of which is present here. First, it was unclear whether the state courts could have a redistricting plan in place in time for congressional elections because of the necessity of having any such plan pre-approved under the Voting Rights Act, 42 U.S.C. § 1973c. No such problem exists here as the parties agree that no minority rights would be endangered if the court adopted either of the plans at issue, which the parties agree are the plan passed by the Oklahoma State Senate and the plan proposed by the Governor. Second, the Mississippi court made clear that there was at least a possibility that the Mississippi legislature might reapportion itself in time to provide for congressional elections. Here, by contrast, the legislature could not agree on a plan for two years and, in any case, has adjourned sine die, leaving no time for legislative action before the filing period for congressional offices begins in a matter of days. In any event, to the extent Smith v. Clark can be interpreted to stand for the proposition that state courts have no power to act in redistricting disputes because Art. 1, § 4, of the United States Constitution, prohibits state courts from acting, we decline to follow it. It is clear to us that Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) and Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075 1081, 122 L.Ed.2d 388 (1993), both discussed at some length later in this section, stand for the proposition that Art. 1, § 4 does not prevent either federal or state courts from resolving redistricting disputes in a proper case.

¶ 11 In Jones v. Freeman, 1943 OK 322, 146 P.2d 564, we declined to reapportion the Oklahoma Legislature despite the fact that the legislature was extremely mal-appor-tioned. The Court said, “The inequality is so glaring that it repels any presumption that the legislation constituted a fair approximation of what was required by the fundamental law. It represents an instance where fair-minded men can entertain no doubt that the inequality of representation is grave, unreasonable, and unnecessary.” 1943 OK 322 at ¶ 11,146 P.2d at 569 (quoting with approval, from Stiglitz v. Schardien, 239 Ky. 799, 40 S.W.2d 315, 321 (1931)). Nevertheless, this Court held in Jones that it lacked jurisdiction to “make the reapportionment ourselves, since that duty is legislative in nature....” To the extent that it is contrary to our holding today, Jones is expressly overruled.

¶ 12 In Wagoner County Election Board v. Plunkett, 1956 OK 329, 305 P.2d 525, we refused to assume jurisdiction under Okla. Const Art 2, § 6 to correct the result of an election that had turned on fraudulent absentee ballots because the election laws provided a recount procedure. The dissents in Plunk-ett, however, took the position that no legislation could be construed to • take away a court’s duty under Art. 2, § 6 “to correct wrongs when they occur regardless of the area of the life in which they may arise.” We agree with the Plunkett dissents and expressly overrule the Plunkett majority opinion on this score.

¶ 13 At the time Jones was decided, many state courts (and federal courts, too) took the position that reapportionment and congressional redistricting were strictly legislative “political matters,” beyond the power of the courts to revise or correct, regardless of the constitutional problems created by a legislature’s failure to act. In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the court changed all this and made clear that reapportionment is not a strictly legislative enterprise. There, a three judge federal district court in Tennessee had held that it lacked subject matter jurisdiction and that no justiciable claim had been stated in an action brought to require the reapportionment of the Tennessee legislature, which had failed to reapportion itself since 1901. The United States Supreme Court reversed the three judge district court’s dismissal and held that the plaintiffs, who had sued on behalf of all Tennessee voters, stated a cause of action based on the denial of equal protection of the law and directed the three judge district court to hear and decide the case.

¶ 14 In retrospect, the reason the court felt it necessary to so profoundly change the law in Baker v. Carr is clear. Many state legislatures, including the Oklahoma legislature, had routinely refused to reapportion themselves, and many state courts, including this Court, routinely ruled that they were powerless to do anything about it. Thus, something had to be done and was done in Baker v. Carr. The court in Baker v. Carr also recognized that courts have jurisdiction in congressional redistricting matters under Art. 1, § 4 of the federal constitution, pointing out, “The first cases involved the redistricting of states [under Art. 1, § 4].” 369 U.S. at 201, 82 S.Ct. at 701.

¶ 15 There is now no doubt that both state and federal courts have jurisdiction to craft both legislative reapportionment and congressional redistricting plans when, as here, the legislature has failed to act. In Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075, 1081, 122 L.Ed.2d 388 (1993) the court stressed that both state legislatures and state courts are appropriate “agents of apportionment.” The court went on to explain that the responsibility was primarily one for the states when it said,

The primacy of the State in designing [Congressional] districts compels a federal court to defer [to state action in drafting a redistricting plan] where the State through its legislative or judicial branch, has begun that highly political task itself.

[Emphasis as in the original, bracketed material added for clarification.] 507 U.S. at 35 and 33,113 S.Ct. at 1081 and 1080.

¶ 16 The teaching of Emison and Baker is that citizens have a right to have their legislature properly apportioned and their congressional districts properly drawn and the responsibility for seeing that this right is enforced rests with the states, not the federal courts. The failure of a legislature to act is a violation of the state’s citizens’ constitutional rights under Art. 1, § 2 and the 14th Amendment to the U.S. Constitution. Such a failure is subject to redress by the state court if it will act and only by the federal court if it will not.

¶ 17 Given the profound changes brought about in the law by Baker, Emison, and other cases, this Court can no longer afford the luxury of declining to act in matters such as the one before us today on the ground that such decisions are exclusively vested in the legislature. It is now clear that Art. 1, § 2 and the 14th Amendment to the federal constitution provide a right to citizens of this state to seek redress from the Oklahoma courts when the legislature fails to create new congressional districts consistent with constitutional requirements and that if this Court does not grant the relief sought, the federal courts will do it for us. For these reasons, we expressly overrule Jones v. Freeman, Wagoner County Election Board v. Plunkett, Brown v. State Election Board, Davis v. McCarty, and any other of our opinions to the extent that they might be construed to stand for the proposition that the courts of Oklahoma should decline to act when the legislature or another state entity fails to draw congressional districts that are consistent with the requirements of Art. 1, § 2 and the 14th Amendment to the constitution of the United States.

¶ 18 Appellants cite Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001), (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995)); Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000); Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795 (1932); and Davis v. Hildebrant, 241 U.S. 565, 36 S.Ct. 708, 60 L.Ed. 1172 (1916) in support of their claim that the trial court lacked subject matter jurisdiction here. None of these opinions apply here. U.S. Term Limits involved the constitutionality of state enactments that purported to limit the terms of United States Congressmen and Senators and Bush v. Gore arose from the hotly contested Florida election recount of the ballots in the 2000 presidential election. Smiley and Hildebrant were decided in 1932 and 1916, respectively, long before either Baker v. Carr or Emison. We see nothing in any of these opinions that supports Appellants’ contention that state courts are constitutionally prohibited from granting relief for mal-formed congressional districts when their state legislatures have failed to do so.

¶ 19 Appellant also contends that the State Election Board is an indispensable party to this action, whose absence deprives this Court of subject matter jurisdiction. We disagree. Appellees dismissed the State Election Board. Appellants filed a motion to dismiss in favor of the proceedings in federal court, after the deadline passed for re-joining the State Election Board as a party, raising its indispensable party argument for the first time. Appellants cannot now allege as error a situation they helped to create. See Aronson v. Aronson, 1970 OK 74, 468 P.2d 493. Moreover, the record reveals the Board is willing to implement whatever lawful redistricting plan is given to it for implementation. Appellants cannot show they were prejudiced by the Board’s absence as a party. Thus, we reject Appellants’ contention that the absence as a party of the State Election Board deprived the trial court of subject matter jurisdiction.

¶ 20 We hold that the trial court had subject matter jurisdiction over the issues presented to it and that a justiciable controversy was presented, which the court had the obligation to resolve under Okla. Const. Art. 2, § 6. The trial court, therefore, committed no error in so holding.

II.

STANDARD OF REVIEW

¶ 21 We stated the standard of review that applies in equitable actions in Merrill v. Oklahoma Tax Commission, 1992 OK 53 ¶ 7, 831 P.2d 634, 640-41:

Because when the trial court ... was sitting in equity, the standard of review applicable to the ruling is whether it is clearly contrary to the weight of the evidence. While in a chancery case an appellate court may weigh the evidence, it will neither disturb the trial court’s findings nor its decree unless the chancellor’s decision fails to pass muster under this well-known standard of review. Absent the standard’s breach, the appellate court must indulge in the presumption that the decree is correct.

[Emphasis as in the original, footnotes omitted.] In Robison v. Graham, 1990 OK 93 ¶ 30, 799 P.2d 610, 618 we vacated a Court of Appeals opinion and reinstated the trial court’s judgment in an equitable action because “the trial court’s ruling was not against the clear weight of the evidence.” Thus, unless the trial court’s judgment here is clearly contrary to the weight of the evidence we must indulge the presumption that the trial court was correct. For the reasons stated in Part III of this opinion, we hold that the trial court’s judgment was not contrary to the clear weight of the evidence and is entitled to the presumption that it was rightly decided.

III.

THE RECORD SUPPORTS THE TRIAL COURT’S JUDGMENT CHOOSING THE GOVERNOR’S PLAN OVER THE SENATE PLAN

¶ 22 While the Legislature has the power and duty to draw the State’s congressional redistricting plan, the court’s role in this process is limited to determining whether there are constitutional or statutory defects. Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725(1982). All parties have stipulated in the instant case that all the submitted plans satisfy the constitutional requirement of “one person, one vote” under Art. 1, § 2, U.S. Constitution, see Abrams v. Johnson, 521 U.S. 74, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997), and that there are no issues with regard to statutory violations under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. Therefore, this Court must determine whether the district court’s judgment in its selection of the “Governor’s Plan,” also called the “Continuity Plan,” is a plan that continues the policies of Oklahoma as expressed in its previous redistricting plans. See White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973).

¶ 23 A court, as a general rule, should be guided by the legislative policies underlying the existing plan. The starting point for analysis, therefore, is the 1991 Plan. See Abrams v. Johnson, 521 U.S. at 79, 117 S.Ct. 1925; White v. Weiser, 412 U.S. at 795, 93 S.Ct. 2348. Widely recognized “neutral redistricting criteria” may be considered. See Karcher v. Daggett, 462 U.S. 725, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983); Johnson v. Miller, 922 F.Supp. 1556 (S.D.Ga.1995), affd sub nom Abrams v. Johnson, supra. Included among these criteria are: (1) preserving cores of existing districts, or communities of interest; (2) providing geographically compact districts; (3) minimizing splitting of political subdivisions; (4) maintaining historical placement of district lines; (5) fairness to voters; and (6) avoiding contests between incumbents running for reeleetion.

¶ 24 A major dispute between Appellants and Appellees is the treatment of incumbents in the two major proposed plans, the Senate Plan and the Governor’s Plan. Appellees contend that avoiding contests between incumbents is a legitimate objective of the redistricting process, citing Karcher v. Daggett, 462 U.S. 725, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983); Jordan v. Winter, 604 F.Supp. 807 (N.D.Miss.1984). It was held in Karcher, 462 U.S. at 740,103 S.Ct. 2653, that the legislative policy of avoiding contests between incumbents was included among legitimate objectives, which “on a proper showing could justify minor population deviations.” See also White v. Weiser, 412 U.S. at 797, 93 S.Ct. 2348, “The fact that district boundaries may have been drawn in a way that minimizes the number of contests between present incumbents does not in and of itself establish invidiousness.” [Citations omitted.]

¶ 25 Appellants, however, cite cases holding that protection of incumbents should be subordinated after other criteria have been considered. See, e.g., Wyche v. Madison Parish Police Jury, 769 F.2d 265, 268 (5th Cir.1985). They also contend error was committed because the trial court’s starting point in consideration of legislative criteria was protection of incumbents. Appellees respond that this contention is not supported by the record. The statement in the judgment with which Appellants take issue is the reference to principles to be applied, including, “what are called neutral principles, looking to the last clear expression of state policy in not only the current plan but in results of previous elections.” [Emphasis added,] This statement does not imply that the court’s major focus was election results because it also included consideration of the 1991 Legislative Plan and the neutral redistricting criteria. Moreover, evidence was presented to the trial court that the 1991 Plan drew districts in which incumbent representatives were not paired against each other. Compare this to the Senate Plan, in which Representative Istook is paired against Rep. Lucas and Rep. Watkins in District 5, an alleged attempt to remove Rep. Istook through political gerrymandering.

¶ 26 None of the proposed legislative plans is perfect. The task before this Court is to determine whether the trial court chose a plan which is constitutional, complies with the statutory requirements of the Voting Rights Act, and adheres to the legislative policy of the State under the previous plan. Despite the fact five plans were proposed, the parties have narrowed the focus to consideration of: (1) the Governor’s Plan, also termed the Continuity Plan, proposed by Ap-pellees, and (2) the Senate Plan, proposed by Appellants.

¶27 Evidence was presented that each plan has a single district that deviates from the ideal of 690,131 by only one person, and thus maintains population equality. Additionally, evidence was presented that both plans split only four counties, less than any other plan, including the 1991 Plan. The fourth split county in the Senate Plan arises for the sole purpose of moving 83 people from one district to another to achieve the federal constitutional requirement of equal population among the districts. Oklahoma County is divided into at least two districts under both plans. The Senate Plan splits 21 municipalities; the Governor’s Plan splits 15 municipalities. Tulsa is included under one congressional district under the Governor’s Plan, but the Senate Plan separates North Tulsa from the rest of the City. Tulsa’s May- or LaFortune testified it is not in Tulsa’s interest to split it into separate districts. Mayor Kirk Humphreys of Oklahoma City testified in favor of the Governor’s Plan because it retains core historical districts and does not put the metro areas in largely rural districts. Beverly Hodges, Oklahoma County Commissioner, testified that the Governor’s Plan unites Oklahoma City under a single leader in District 5. She also supports the Governor’s Plan, in that Oklahoma, Pottawatomie and Seminole Counties in District 5 have common economic interests and are contiguous. All of the proposed plans create two districts with the majority of the population from rural areas, and three districts, which are predominantly suburban and urban.

¶ 28 As to fairness to voters, evidence was received from the parties’ experts Gaddie and Copeland who agree that competitive districts are essential to a healthy representative democracy. “Competitive districts,” according to Copeland, are “responsive,” that is, they allow for the ability of voters to express changed opinions. When voter preferences change, it is more likely their representation will change. Gaddie and Copeland also agree that the Senate Plan is the most responsive plan, with two competitive seats. In the Governor’s Plan, there are four safe Republican seats and only one competitive seat, which is the district that currently elects a Democrat, according to Gaddie. Copeland opined that one seat in the Governor’s Plan is just barely competitive, and if an incumbent Republican runs for this seat, it will result in a 4 to 1 Republican congressional delegation. As stated above, however, under the 1991 Plan, the 2000 results favored Republicans 5 to 1.

¶ 29 Both proposed plans have merit, and both have faults. When all factors are considered, the record supports the trial court’s decision to choose the Governor’s Plan as more nearly continuing the legislative policies of the 1991 Plan than the Senate Plan. Thus, the trial court committed no error in doing so. Although Appellants urge us to substitute the Senate Plan for the Governor’s Plan, the standard of review applicable here prohibits such a result. As the trial court’s judgment is not clearly contrary to the weight of the evidence, it is entitled to a presumption of correctness and must be affirmed.

CONCLUSION

¶ 30 The trial court had jurisdiction to hear and rule on the issues in this case under Okla. Const. Art. 2, § 6. Our earlier opinions, such as Jones v. Freeman, 1943 OK 322, 146 P.2d 564; Wagoner County Election Board v. Plunkett, 1956 OK 329, 305 P.2d 525; Brown v. State Election Board, 1962 OK 36, 369 P.2d 140; Davis v. McCarty, 1964 OK 5, 388 P.2d 480; and any other opinions reaching the same conclusions, are expressly overruled to the extent that they held the Oklahoma courts must decline to hear cases and grant remedies for violations of congressional redistricting disputes under Art. 1, § 2 and the 14th Amendment to the United States Constitution. This result is necessitated by Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) and Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075 1081, 122 L.Ed.2d 388 (1993).

¶ 31 The absence of the State Election Board as a party to this suit did not deprive the trial court of subject matter jurisdiction as Appellants failed to raise it until it was too late to re-join the election board as a party to the suit. In any event, it is undisputed that the Election Board will act in accordance with the orders of this Court.

¶ 32 The trial court’s judgment is entitled to a presumption of correctness unless it is “clearly contrary to the weight of the evidence.” Merrill v. Oklahoma Tax Commission, 1992 OK 53 ¶ 7, 831 P.2d 634, 640-41. The record reflects that there was ample evidence to support the trial court’s decision to choose the Governor’s Plan over the Senate Plan. The trial court’s judgment is, therefore, affirmed.

AFFIRMED.

HARGRAVE, C.J., HODGES (joins LAVENDER, J.), LAVENDER (by separate writing), KAUGER, SUMMERS, BOUDREAU, WINCHESTER, JJ. — concur.

OPALA, J. (by separate writing) — concurs in part, dissents in part.

LAVENDER, J.,

concurring specially:

¶ 1 The United States Supreme Court has decided that issues of the sort now before us are of a justiciable nature. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)(involving reapportionment of State of Tennessee General Assembly). The United States Supreme Court has also unequivocally determined that the United States Constitution leaves with the States, including a State’s judicial branch in appropriate circumstances, the primary responsibility for apportionment of their federal congressional and state legislative districts. Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993)(three-judge federal district court panel required to defer to state court’s timely efforts to redraw legislative and congressional districts). The Oklahoma Constitution at Article 7, § 7(a) provides in pertinent part that “[t]he District Courts [of the State of Oklahoma] shall have unlimited original jurisdiction of all justiciable matters-” Further, the Oklahoma Constitution at Article 7, § 4 reposes in this Court the appellate jurisdiction to review the decisions of our District Courts. The simple fact is that the Oklahoma state courts and an appropriate federal court have concurrent subject matter jurisdiction over the controversy presently before us. It would be .wrong, therefore, for this Court to rule favorably on Appellants’ request (made at page four of their June 20, 2002 response brief in this case) that we merely vacate the lower court’s judgment entered in this matter and “allow the three-judge [panel for the] Federal District Court for the Western District of Oklahoma to adopt a new congressional plan for use in this year’s elections.” Such a course might be the easier one for this Court to follow, but it would not be the course charted by the United States Constitution, the Constitution of the State of Oklahoma, or the laws of this State or Nation.

¶ 2 Title 2 U.S.C. § 2c (2000) provides as follows:

In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative (except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may elect its Representatives at Large to the Ninety-first Congress).

As I understand the import of the above federal statute the five congressional House of Representative Members from OHahoma that will be elected by virtue of the upcoming election cycle are supposed to be elected from districts “established by law”. As everyone is aware, the current districts that have been in place for about ten years can no longer be used. This is so because OHa-homa is losing a Representative — we are going from six to five — and there are presently six districts rather than five.

¶ 3 I recognize, as I am sure my colleagues on this Court do also, that it was the legislative and executive branches of our State government that had, within their respective roles in the passage and approval of a valid law, the initial and primary responsibility for promulgating a law accomplishing congressional redistricting. I also recognize that no such law was passed by both houses of our State Legislature and approved by the Governor during the recently concluded legislative session. Such recognition is in no way intended to denigrate the co-equal legislative or executive branches of OHahoma’s government, but merely to point out that without court intervention at this juncture no valid congressional redistricting will occur prior to the upcoming election cycle because, practically, there is no reasonable chance that the legislative and executive branches will have the opportunity to again revisit the issue in a timely manner. Although I do not relish having to be involved in the process of congressional redistricting, I simply do not believe I have the luxury of merely passing this matter off on some other court. In that the District Court had subject matter jurisdiction of a justiciable controversy this Court has the duty and responsibility to review the lower court’s judgment that was entered.

¶4 I am authorized to state that Justice Hodges joins in the views expressed herein.

OPALA, J.,

dissenting in part.

¶ 1 I concur in the court’s opinion insofar as it holds that the district court had subject matter jurisdiction and that the State Election Board is not an essential party to the action. Its absence is not an impediment to granting relief. I dissent from today’s approval of the district court’s drawing of OHa-homa’s congressional districts. This case is about neither jurisdiction nor testing the constitutional orthodoxy of legislation. Here the parties camouflage legislative nonfeasance by manipulating the judiciary into filling a political vacuum with a judicially-created district-ing plan. The law does not allow the judiciary to be a roving commission, filling such political voids. Because no party in this lawsuit established that federal congressional districts must be drawn by anyone — much less by this court — and the judiciary should not intrude upon areas where there are no cognizable injuries to be redressed, I recoil from any holding which dignifies this dispute by raising it to a redressible claim.

I

THE ANATOMY OF LITIGATION

¶2 The difficulty of determining “plaintiffs” and “defendants” in this “lawsuit” should give the court pause in assuming that a cognizable claim exists. In the original petition, dated January 29, 2002, plaintiffs Alexander and Snipes sued Governor Frank Keating, members of the OHahoma State Election Board, Stratton Taylor (the President Pro Tempore of the OHahoma State Senate) and Larry E. Adair (Speaker of the OHahoma House of Representatives), all in their respective official capacities. Plaintiffs, as registered voters with an interest in participating in the 2002 elections for members of Congress from the State of OHahoma, sought “injunctive relief to ensure that the State of OHahoma has a constitutional redistricting plan in place in time to comply with the filing deadline for congressional elections in OHahoma.” They based their claim on Article 1, § 2 of the U.S. Constitution, as amended by § 2 of the Fourteenth Amendment. For reasons I will discuss in Part II, the petition should have been dismissed for failure to state a claim for which relief may be granted.

¶ 3 Among other various interventions and realignments of the parties in this case, the Election Board officials were dismissed as defendants, and Governor Keating, a Republican, switched from a defendant to a plaintiff, separating himself from defendants Taylor and Adair, both Democrats. These shifts took place presumably to align more clearly the dominant political interests against one another, lest any court manage to mistake this case for anything more than partisan bickering.

II

FAILURE TO STATE A COGNIZABLE INJURY AND REDRESSIBLE CLAIM

¶ 4 Plaintiffs argue that Art. I, § 2 of the U.S. Constitution, as amended by § 2 of the Fourteenth Amendment, necessitates court action in this case. In my roughly fifty years in the law, I have become fairly familiar with the United States Constitution and the jurisprudence interpreting it. I am unable to make the jump from Art. I, § 2⅛ command that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state ...” and the Fourteenth Amendment to the claim that this (or any other) court must draw such districts when they do not exist. And they clearly do not exist.

¶ 5 Once the results of 2000 decennial census — particularly, that the number of representatives to which Oklahomans are entitled to elect decreased from six to five — were made known, the Oklahoma Congressional Redistricting Act of 1991, 14 O.S.2000 §§ 5.1 et seq., became functus officio — necessarily obsolete and immediately invalid. This leaves Oklahoma capable of electing five representatives, but with no congressional districts. The judiciary’s function is to subject districting plans that are in effect to constitutional testing under the Marshall Doctrine of judicial review. Here, there is nothing to test but legislative vacuum! I remain unconvinced that without congressional districts, the resulting situation — election at-large for each congressional seat — while likely unpalatable to all here involved, is unconstitutional on any grounds. Neither plaintiffs-appel-lees nor defendants-appellants bothered to mention why an at-large election for all five congressional seats would be illegal.

¶ 6 It is no more my job to attempt to craft a cognizable claim than it is to remedy a nonexistent injury. But for the sake of argument and legal education I will attempt to imagine what possible injury this case was meant to redress. First, I recognize that 2 USCS § 2a(c)(5) states that “Until a State is redistricted in the manner provided by the law thereof after any apportionment, ... if there is a decrease in the number of Representatives and the number of districts in such State, exceeds such decreased number of Representatives, they shall be elected from the State at large.” Perhaps if the parties gave this statute any thought (and no evidence of any such thought exists) they felt that 2 USCS § 2c repealed this statute by implication.

¶ 7 Perhaps the parties were encouraged in this reading by a three-judge federal panel which read these possibly overlapping statutes this way in Shayer v. Kirkpatrick, Shayer was summarily affirmed by the Supreme Court, and this vague swipe is the nearest the Court has come to interpreting the two statutes. Its inconclusive approval is insufficient evidence that federal law mandates a division into districts rather than an at-large election.

¶8 Several reasons bolster such a belief. First, repeals by implication are not favored. Second, Shayer was not a petition for certio-rari, but an appeal from a Federal District Court panel, which obligated the Court to decide the matter in some way. Third, summary affirmations of cases with multiple issues may hold little and frequently hold nothing of precedential value. In Mandel v. Bradley the Court held that, “because a summary affirmance is an affirmance of the judgment only, the rationale of the affir-mance may not be gleaned solely from the opinion below.”

¶ 9 Mandel created a two-step test for courts to apply in determining the quantum of precedential weight, if any, of the Court’s summary dispositions. First, the lower court must establish exactly what issues were presented in light of all the facts in the prior case-. Second, the court must determine if the Supreme Court necessarily decided those issues when it summarily disposed of the case. In an enlightening concurring opinion, Justice Brennan wrote that state and federal judges hoping to glean information from a summary affirmation must determine that the affirmation ... “not even arguably [rests] upon some alternative ... ground. The judgment should not be interpreted as deciding the constitutional questions unless no other construction of the disposition is plausible.” It is eminently plausible that the Court’s affirmance of Shayer could have rested on any number of other grounds. I therefore decline to follow the Shayer v. Kirkpatrick opinion’s construction of the federal statutes at issue.

¶ 10 Rather, I read the provisions of 2 USCS § 2c to hold that they prohibit a legislature from deliberately designing a redistricting plan which would elect at-large representatives, but find them silent about forcing a court affirmatively to create districts when the legislative nonfeasance results in the plainly constitutional regime of at-large elections. Public policy and judicial independence counsel such a reading. Since the effect of the 2000 census was to immediately invalidate the 1991 congressional districts and precipitate at-large elections in accordance with the terms of 2 USCS 2a(c)(5), and there is no clear command for a sine qua non requirement to divide states with multiple congressional representatives into districts, I cannot accede to the court’s view that a legally redressible claim or counterclaim exists.

Ill

DE NOVO STANDARD OF REVIEW FOR CONSTITUTIONAL ISSUES

¶ 11 The court is also in error by assigning excessive deference to the trial court’s order. It adopts the equity standard of review. This standard falls short of the federal minimum for constitutional issues. The latter require de novo review. Originating with the 1920 case of Ohio Valley Water Co. v. Ben Avon Borough, the so-called Ben Avon doctrine requires full judicial review when a constitutional issue is raised. Some commentators speculate that the Ben Avon doctrine has been extinguished gradually through numerous inconsistent Supreme Court decisions. Nonetheless, the Supreme Court has never expressly overruled the doctrine, and courts continue to and are bound to apply if. Despite the parties’ failure to prove a constitutional injury, constitutional issues are clearly alive and well in this case.

¶ 12 When a court reviews the rulings or reasoning of a trial court de novo, it gives little or no deference to the trial judge. The reviewing court’s objective is not limited to ascertaining whether the lower court erred. “As such, it is not only at liberty, but is required, to comb the record in search of the facts of the case, the reasonable inferences from those facts, the law applicable to those facts, and proper inferences to be drawn from those facts.” In 1991, Justice Black-mun eloquently described the benefit of de novo review:

Independent appellate review of legal issues best serves the dual goals of doctrinal coherence and economy of judicial administration. District judges preside alone over fast-paced trials: Of necessity they devote much of their energy and resources to hearing witnesses and reviewing evidence. Similarly, the logistical burdens of trial advocacy limit the extent to which trial counsel is able to supplement the district judge’s legal research with memoranda and briefs. Thus, trial judges often must resolve complicated legal questions without benefit of ‘extended reflection [or] extensive information.’- Courts of appeals, on the other hand, are structurally suited to the collaborative juridical process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues. As questions of law become the focus of appellate review, it can be expected that the parties’ brief will be refined to bring to bear on the legal issues more information and more comprehensive analysis than was provided for the district judge. Perhaps most important, courts of appeals employ multi-judge panels that permit reflective dialogue and collective judgment.

The record indicates that this was certainly a “fast-paced” trial, and the Ben Avon doctrine commands us to exercise de novo review of the exigent constitutional issues.

IV

THE CRUCIAL IMPORTANCE OF JUDICIAL NEUTRALITY IN DEALING WITH POLITICAL ISSUES

¶ 13 Judges act without authority and erode whatever faith the public still carries in the insulation of the judiciary from the political process when they limit themselves to choose between two proposals for redistricting congressional seats both obviously laden with partisan advantage. The reapportionment process has been recognized by many observers as politics at its most heated. Indeed, since judicial redistricting'“is inevitably an exposed and sensitive” task, it “must be accomplished circumspectly, and in a manner ‘free from any taint of arbitrariness or discrimination.’ ”

¶ 14 Even if I were convinced that the Shayer v. Kirkpatrick interpretation of 2 U.S.C.S. §§ 2a(c)(5) and 2(c) was indeed appropriate (or that the Supreme Court’s nebulous affirmation of that case could be accepted as precedential authority for the view that districts must indeed be drawn), I would nonetheless disagree with the court’s approval of the trial court’s approach and reverse the trial court’s adoption of a party-sponsored plan as a judicial abnegation of political neutrality.

¶ 15 The costs of potentially compromising the political neutrality of the court system far outweigh any benefits gained by simply choosing from ready-made and obviously partisan plans. Put simply, even if a federal mandate compelling courts to apportion districts did exist, the court must do so in a scrupulously neutral manner, free of any appearance of political influence. This would likely mean drawing districts neither party has suggested based on clearly definable, neutral criteria. I am most certainly aware of Justice Ginsburg’s teaching that “[T]he slim judicial competence to draw district lines weigh heavily against judicial intervention in apportionment decisions....” But when courts claim this reluctance to intrude on a legislative process in order to shift the burden of drawing districts to the political parties who bring suits before them, the reputation costs incurred by punting to a political party are simply intolerable.

V

MY PROPOSED DISPOSITION OF THIS CONTROVERSY

¶ 16 In sum, if I were deciding this case, I would declare the claims and counterclaims in this controversy to be irredressible for want of any law to which judicial testing of constitutional orthodoxy may be appropriate, and I would invite the federal three-judge panel (or any other court drawing districts) to revisit this important issue. Even if I were convinced that this court is under a constitutional mandate to draw districts for Oklahoma, in an attempt to keep the judiciary above reproach, I would most certainly avoid deferring to either of two party-sponsored plans. I am not unduly critical of the court’s approval of the Governor’s plan, nor do I counsel the court to adopt the Senate plan; rather, I rise today to condemn the decisional process by which these irredressi-ble claims came to be decided. I do not invite this or any court ever to be bound by any tendered party-sponsored plan laden with excisable partisan bias, however slight.

¶ 17 It is only when courts discipline the parties involved by refusing to function as a safety valve for political actors (who increasingly favor using the judiciary as a forum for resolving their disputes) that they will truly feel compelled to negotiate a solution on their own. The court has no business cleaning up this political mess, and I retreat from any such enterprise.

      . Governor Frank Keating was sued in his official capacity as Governor of the State of Oklahoma. The parties were later realigned, and Governor Keating became a plaintiff. Glo Henley, Kenneth Monroe and Thomas E. Prince were sued in their official capacities as Members of the State Election Board and were dismissed without prejudice.

      . After its decision in Jones v. Freeman this court declined to act in other cases arising from election laws. See, Wagoner County Election Board v. Plunkett, 1956 OK 329, 305 P.2d 525 (held: Oklahoma courts lacked jurisdiction to grant relief despite clear showing of fraudulent absentee ballots in sufficient numbers to change the result of an election); Brown v. State Election Board, 1962 OK 36, 369 P.2d 140 (held: Supreme Court lacked jurisdiction to reapportion legislature despite clear unconstitutionality of the current legislative apportionment laws); and Davis v. McCarty, 1964 OK 5, 388 P.2d 480 (held: reapportionment act would be modified with respect to state senate but not with respect to house, although federal constitutional "One person, one vote” requirement remained unsatisfied). Because of this Court’s failure to reapportion the state legislature in Davis v. McCarty, a three judge federal district court, relying on Baker v. Carr, did so in Reynolds v. State Election Board, 233 F.Supp. 323 (D.C.W.D Okla.1964).

      . Article 1. § 4 of the federal constitution provides in material part as follows:
      The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

      . Functus officio literally means "a task performed." It is applied to things which have "fulfilled the function, discharged the office, or accomplished the purpose, and [are] therefore of no further force or authority.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (1979), p. 606. See Macy v. Board of County Com'rs, 1999 OK 53 at n. 21, 986 P.2d 1130.

      . As Justice Lavender notes in a concurrence, 2 USCS § 2c states that,
      In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of subsection (a) of section 22 of the Act of June 18, 1929, entitled "An Act to provide for apportionment of Representatives” (46 Stat. 26), as amended [2 USCS 2a(a)], there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative (except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may elect its Representatives at Large to the Ninety-first Congress).
      § 2a(c)(5) was passed in 1929, while § 2c was passed in 1967. Both are still in force.

      . 541 F.Supp. 922 (W.D.Mo.1982).

      . Schatzle v. Kirkpatrick, 456 U.S. 966, 102 S.Ct. 2228, 72 L.Ed.2d 841 (1982). Summary affir-mances such as this are simply dispositions sans an explicitly-reasoned decision-making process; they merely affirm the judgment of a lower court without explanation. ’

      . See, e.g., Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Tratisit Comm., 393 U.S. 186, 193, 89 S.Ct. 354, 358, 21 L.Ed.2d 334 (1968) (citing Wood v. United States, 16 Pet. 342, 363, 10 L.Ed. 987 (1842); FTC v. A.P.W. Paper Co., 328 U.S. 193, 202, 66 S.Ct. 932, 936, 90 L.Ed. 1165 (1946)).

      . The precedential value of summary dispositions is often difficult to determine. According to one scholar, as of 1995, with regard to federal appellate summary affirmations,
      The Federal Circuit has stressed that a summary disposition should not be viewed as a blanket adoption of the district court’s reasoning because it may be based upon "any ground appropriate to tire case.” Quad Envtl. Tech. Corp. v. Union Sanitary Dist., 946 F.2d 870, 874 (Fed.Cir.1991). In the District of Columbia, Second, Third, Seventh, Eighth,- and Ninth Circuits, summary dispositions are not prece-dential. D.C. CIR. R. 11(c); 2D CIR. R. 0.23; 3D CIR. I.O.P. 5.6; 7TH CIR. R. 53(b)(2)(iii); 8TH CIR. R. 47B, APP. I; 9TH CIR. R. 36-3. Tenth Circuit Rule 36.3, denying precedential status to summary dispositions, has been suspended. [See In re Rules of the U.S. Court of Appeals for the Tenth Circuit, 955 F.2d 36, 36 (10th Cir.1992) (giving historical background supporting court's decision to adopt rule that denies precedential weight to unpublished opinions except under doctrines of law of the case, collateral estoppel, and res judicata).] The Federal Circuit allows citation to every disposition of the court except those unanimously designated as nonprecedential. FED. CIR. R. 47.8. Rules permitting summary dis- . positions in the remaining circuits are silent about the precedential value (other than pre-clusive effect) of such dispositions. 1ST CIR. R. 27.1; 4TH CIR. R. 34(a); 5TH CIR. R. 47.6; 6TH CIR. R. 19.
      Martha J. Dragich, Will the Federal Courts of Appeal Perish if they Publish? Or does the Declining use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat?, 44 Am. U.L.Rev. 757, 763 at n.21.

      . 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam).

      . Id. at 176, 97 S.Ct. 2238.

      . See Id. at 175-80, 97 S.Ct. 2238.

      . Id. at 180, 97 S.Ct. 2238 (Brennan, J., concurring) (emphasis added).

        . See generally Rev. John. J. Coghlin, A Comparison of the Administrative Law of the Catholic Church and the United States, 34 Loy. L.A. L.Rev. 81, 183.

      . 253 U.S. 287, 40 S.Ct. 527, 64 L.Ed. 908 (1920).

      . See id. At 289.

      . See, e.g., Leslie A. Glick, Independent Judicial Review of Administrative Rate-Making: The Rise and Demise of the Ben Avon Doctrine, 40 Ford-ham L.Rev. 305, 306-07, 314 (1971). For an inconsistent decision, see Railroad Commission v. Rowan & Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368 (1940).

      . Coughlin, supra note 11 at FN 687 and accompanying text. See Glick, supra note 687, at 313 n. 32, 314. See generally California v. Southland Royalty Co., 436 U.S. 519, 525-26, 98 S.Ct. 1955, 1958, 56 L.Ed.2d 505 (1978) (upholding an administrative interpretation of the Natural Gas Act on the ground that the interpretation was reasonable); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 52, 56 S.Ct. 720, 726, 80 L.Ed. 1033 (1936) (holding that courts must review constitutional issues independently from the findings of the Secretary of Agriculture); Pichotta v. City of Skagway, 78 F.Supp. 999, 1004 (D.Alaska 1948) (stating that when a case presents an issue of constitutional law, the reviewing court may determine the issue upon its own, rather than the administrative, record); Atl. Coast Line R.R. Co. v. Pub. Serv. Comm’n, 77 F.Supp. 675, 680 (D.S.C.1948) (stating that an independent action in equity brought pursuant to an act of Congress deserves de novo review).

      .2 J.App. Prac. & Process 47-2-47, nn. 63-4 and accompanying text.

      . See Salve Regina College v. Russell, 499 U.S. 225, 231-232, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (alteration in original) (citations omitted).

      . See generally Robert Redwine, Comment: Constitutional Law: Racial and Political Gerrymandering — Different Problems Require Different Solutions 51 Okla. L.Rev. 373 (1998); Note: Federal Court Involvement in Redistricting Litigation, 114 Harv. L.Rev. 878 (2001). Pamela S. Karlan, The Fire Next Time: Reapportionment After the 2000 Census, 50 Stan. L.Rev. 731, 731-34 (1998).

      . Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 1834, 52 L.Ed.2d 465 (1977) (quoting Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964)).

      . Some may argue that announcing in advance that a court will solely limit itself to choose the 'most reasonable proposal may encourage the interested parties to work towards the political middle on their own. Such an argument would go on to note that political actors are likely better suited to make such plans than are judges. I may well agree, but hold that such a scheme still intolerably sullies a court in politics by expressly placing itself at the mercy of political actors.

      . Miller v. Johnson, 515 U.S. 900, 935, 115 S.Ct. 2475, 2500, 132 L.Ed.2d 762 (1995) (Ginsburg, J., dissenting).

      . At oral argument, neither party denied that both party-sponsored plans were at least "slightly biased.”


source: Caselaw Access Project

author: LAVENDER, J.

license: Public Domain

text:
    2002 OK 62
    K & H WELL SERVICE, INC., Plaintiff/Appellant, v. TCINA, INC. and Tcina Holding Co., Ltd., Defendants/Appellees.
    No. 93,451.
    Supreme Court of Oklahoma.
    July 2, 2002.

      Thomas A. Thompson, Shawnee, OK, for appellant.
    Larry Jay McMains of Johnston & McMains, Seminole, OK, for appellees.
   LAVENDER, J.

¶ 1 Today’s cause requires review of the process employed by K & H Well Service, Inc. [lien claimant or K & H] to secure a money judgment against named leasehold owners, to establish the validity of its 42 O.S.1991 § 144 oil and gas well liens, and to foreclose the same.

I

FACTS AND PROCEDURAL HISTORY

¶ 2 K & H provided materials, supplies and well services in the reworking and drilling of several oil and gas wells in Seminole and Pottawatomie counties during a period beginning in July 1998 and ending in November 1998. K & H alleges that it was hired to perform this work by Tcina, Inc., the wells’ operator. Upon not being paid for the rendered services K & H filed (in early December 1998) “oil and gas well lien statements” covering the respective wells in the county clerk’s office of either Pottawatomie or Seminole County, depending upon where the specific well which was -worked on was located. Each lien statement contained a legal description of the lands against which it was intended to be impressed.

¶ 3 On December 10, 1998 K & H brought suit in Seminole County District Court seeking a money judgment and to foreclose its liens.' Tcina, Inc., as operator, and Tcina Holding Co., Ltd. [Tcina or defendants], among others, were named as defendants.

After the suit’s initiation but before trial commenced, the liens on all wells but the Salma Wells Nos. 3 and 4 were discharged by payment of the claimed amounts.

¶ 4 The appealed-from judgment addresses the legal efficacy and effect to be given to K & H’s lien statement filed in Book 7453, Page 62 in the Seminole County Clerk’s office. The challenged lien purports to encumber the following described land:

The Fleet Osborn Gilcrease Unit

W/2 NW/4 and N/2 SW/4 and S/2 Lot 2, Lot 4, Lot 5, Lot 6, all in Sec. 25-T5N-R7E, and E/2 NE/4 and NW/4 NE/4 and East 20 acres of Lot 1, Lot 4, Lot 5, all in Section 25-T5N-R7E, including all riparian rights all in Seminole County, State of Oklahoma.

The Salma Well No. 3 — per a filed Oklahoma Corporation Commission report — was reeom-pleted in the SE/4 NW/4 NW/4 of section 25-. T5N-R7E to the Booch formation; and the Salma Well No. 4 — per a filed Oklahoma Corporation Commission report — was recom-pleted in the W/2 NE/4 SW/4 NW/4 of section 25-T5N-R7E to the Wapanucka formation. The defendants did not contest that K & H performed the work which is the subject of the above lien or the amount charged.

¶ 5 At trial Tcina, Inc. alleged that although it was the contract operator of the Salma wells, it did not possess an interest in the leases covering the lands subject to the lien. Berry Doyal (the principal owner of both Tcina, Inc. and Tcina Holding Co., Ltd.) represented that when negotiating with K & H for the well work to be performed he disclosed (1) that Tcina, Inc. was an agent for the owners of the leasehold estate upon which the well work was to be done and (2) the leasehold owners were going to pay for the requested rework. Tcina, Inc. asserts that its status as a non-leasehold owner and an agent for disclosed principals precludes its liability for the work which K & H performed on the Salma wells.

¶ 6 Tcina Holding Co., Ltd., claims that it owns no interest in the leasehold estate against which K & H’s liens were impressed. Nonetheless, there is recorded in the Seminole County Clerk’s office an assignment, dated December 1, 1997, of an undivided 5% interest in leases (covering the same mineral estates as the leasehold estate against which K & H’s lien was impressed) from Grant Oil and Gas Corporation to Tcina Holding Co., Ltd. At trial Tcina Holding Co., Ltd., asserted that the acquired interest was only a carried working interest. However, the allocation of expenses traditionally associated with a carried interest is nowhere reflected in the assignment’s terms. At trial Tcina Holding Co., Ltd., introduced an unrecorded “Disclaimer and Assignment Without Warranty,” dated May 4, 1999, of its interests in the Salma Wells nos. 3 and 4 to the record owners. Also, Tcina Holding Co., Ltd.’s leasehold interest in formations — other than those formations in which the Salma wells were completed — were apparently reserved by Tcina Holding Co., Ltd. as they were excluded from the disclaimer and assignment’s scope.

¶ 7 After trial judgment was entered in favor of the Tcina entities on K & H’s (a) claim for a money judgment and (b) attempt to foreclose its lien. The trial court also awarded an attorney fee to Tcina, Inc. and Tcina Holding Co., Ltd. K & H appealed and the Court of Civil Appeals [COCA] reversed the trial court’s judgment and remanded the cause. The COCA found that Tcina, Inc. was merely a contract operator of the wells subject to the lien in issue, had disclosed the principals for which it was the agent to K & H, and owned no leasehold interests in the lands subject to K & H’s lien. It concluded that Tcina, Inc. was correctly found to have no liability. Nonetheless, the COCA held that Tcina Holding Co., Ltd. did possess a leasehold interest in the wells subject to the lien and remanded the ease with instructions to allow the foreclosure to proceed. It also determined that K <& H was the prevailing party in the action and vacated the trial court’s attorney-fee award.

¶ 8 The Tcina entities sought certiorari which was granted.

II

THE STANDARD OF REVIEW

¶ 9 The judgment presented for review is a compilation of both findings of facts and conclusions of law. When, as here, the case is tried to the court, its determination of facts are accorded the same force as those made by a well-instructed jury. If any competent evidence supports the trial court’s findings of fact, the same will be affirmed. Whether a lien is perfected under applicable statutes — i.e., whether the facts (once established) demonstrate substantial compliance with applicable statutory requirements — is largely a question of law for the trial court to resolve. Issues of law are reviewed de novo since an appellate court has plenary, independent and non-deferential authority to reexamine a trial court’s legal rulings. Lastly, the trial court’s decision not to allow amendment of the plaintiffs lien statement will be reviewed under an abuse-of-discretion standard. Unless the record clearly discloses that the trial court abused its discretion, its decision will not be disturbed.

Ill

SINCE K & H’S PERFORMANCE OF THE CONTRACT AND THE AMOUNT OWED IS UNDISPUTED, THE TRIAL COURT SHOULD HAVE AWARDED A MONEY JUDGMENT AGAINST THE NAMED LEASEHOLD OWNER

¶ 10 The following facts were not controverted at trial: (a) that K & H provided labor and services for the Salma Wells nos. 3 and 4 pursuant to an oral contract with Tci-na, Inc. as agent for the leasehold owners and (b) the correctness of the amount charged for the labor and services provided. Rather, the defendants contested who was liable for the same. Tcina, Inc. and Tcina Holding Co., Ltd.’s defenses to liability were primarily alike — i.e., that neither owned a leasehold interest in the lands subject to the lien in issue.

¶ 11 Subsumed in the trial court’s judgment denying liability on Tcina, Inc.’s part is necessarily a finding that Tcina, Inc. owned no leasehold interest in the lands covered by K & H’s lien for the work done on the Salma wells. A review of the record and appellate paperwork discloses no basis for challenging the trial court’s finding on this factual issue. There is credible evidence in the record which supports Tcina, Inc.’s claims that (1) it was the contract operator of the wells in question and (2) it disclosed those for whom it was agent when it negotiated the work (recompletion of the Salma wells) the subject of K & H’s lien. Also, no evidence was adduced by K & H which would establish that Tcina, Inc. possessed record title to a leasehold interest in the lands covered by the Salma-wells lien. Hence, we decline to reverse the trial court’s judgment denying Tcina, Inc.’s liability for the claimed indebtedness.

¶ 12 The same result does not follow as to Tcina Holding Co., Ltd. The record discloses an absolute assignment of a 5% interest in the oil and gas leases covering the mineral estate on which the Salma wells nos. 3 and 4 were drilled, recorded in the Seminole County Clerk’s office, from Grant Oil and Gas Corporation to Tcina Holding Co., Ltd. The recorded assignment bore no terms relating to payment of expenses attributable to the interest assigned. Tcina Holding Co., Ltd.’s attempt to restrict the recorded assignment’s effect by its introduction at trial of an unrecorded disclaimer and assignment to the “record owners” of the leases is not persuasive for several reasons.

¶ 13 First, when Tcina Holding Co., Ltd. executed the (unrecorded) disclaimer and assignment quitclaiming its interest in the Sal-ma wells,nos: 3 and 4'tó'the “record owners”, it was itself one of the record owners of the leasehold estate in question. Hence, the legal effect of the assignment language employed by Tcina, Inc. would be a reconveyance to itself of some quantum of interest in the leasehold estate covering the Salma wells nos. 3 and 4. Even if its attempted disclaimer and assignment were effective, it would have remained a leasehold owner.

¶ 14 Second, Tcina Holding Co., Ltd was assigned of record a five percent (5%) interest in various leases covering the lands subject to K & H’s lien. A recorded conveyance imparts constructive notice on and after the date it is recorded to the assignee’s [here Tcina Holding Co., Ltd.] creditors [here K & H] that it owns an interest in the oil and gas leases the subject of the assignment. The assignment to Tcina Holding Co., Ltd. was filed December 31, 1997, over six months before K & H worked on the leases in question. K & H, as a creditor of Tcina Holding Co., Ltd., is entitled to rely upon the title to thé leases in question as reflected in the records maintained in the Seminole County Clerk’s office when it (a) supplied the labor and materials the subject of its lien and (b) prepared its oil and gas lien statement. The oral and written variance — sought by Tcina Holding Co., Ltd. — of the recorded assignment is ineffective and as a matter of law affords no basis for the defeat of K & H’s lien.

¶ 15 Since (1) Tcina, Inc. — as the agent for the owners [including Tcina Holding Co., Ltd.] of the leasehold-estate upon which the Salma wells were drilled — negotiated with K & H to furnish the labor and supplies which are the subject of K & H’s lien; (2) Tcina Holding Co., Ltd. is possessed of record with an.interest in the subject leasehold; and (3) there is no controversy that K & H performed the contract by supplying the requested labor and materials and also that its charges were accurate, K & H is entitled to a money judgment against Tcina Holding Co., Ltd. The trial court erred in not giving judgment to K & H for the same.

¶ 16 Because the record does not identify the record owners [other than Tcina Holding Co., Ltd.] of the leases covering the drilling and spacing unit for the Salma wells, we offer no opinion about the legal relationship — i.e., whether a mining partnership existed — between Tcina Holding Co., Ltd. and the unidentified leasehold estate owners. Upon remand unless a mining ‘partnership is found to exist between Tcina Holding Co., Ltd. and the other record leasehold owners, Tcina Holding Co., Ltd. can only be found liable for five percent (5%) of the contracted-for charges.

IV

SINCE K & H PERFECTED ITS LIEN OF RECORD, THE TRIAL COURT ERRED WHEN IT DID NOT ORDER ITS FORECLOSURE AGAINST TCI-NA HOLDING CO., LTD.

¶ 17 Of initial import in deciding K & H’s entitlement to foreclosure of its oil and gas well lien is an assessment of the legal quality and scope of the § 144 lien (filed against the Salma wells nos. 3 and 4) recorded in the Seminole County Clerk’s office. One of the standards for assessing the efficacy of K & H’s lien is whether it was perfected? The perfection requirement has as its central purpose notification — i.e., advisement of record to potential buyers and third parties, as well as those against whose interests the lien is sought to be impressed, of the nature and amount of the vendor’s claim.

18 A 42 O.S.2001 § 144 oil and gas lien statement must be filed in accordance with all, but the temporal, provisions of 42 O.S. 2001 § 142. The pertinent § 142 requirements are that (1) the lien statement be filed in the county clerk’s office for the county in which the land sought to impressed with the lien is located, (2) that the lien statement set forth the amount claimed and, as practicable, the items for which the charges were incurred, and (3) it identify the owner(s), contractor, and claimant’s names and the legal description of the property subject to the lien. When filed in conformity with the statutory requirements, the lien relates back to the date work was first performed on the job site. The provisions of 42 O.S.2001 § 172 allow for the lien statement’s amendment as to the above elements — except for the amount claimed — upon showing that the same would be “in furtherance of justice.”

¶ 19 In applying the above statutory standards the Court has held that a lien is perfected when (1) the labor and supplies are furnished pursuant to either an express or implied contract; (2) the content of the oil and gas lien statement substantially conforms to applicable statutory requirements and is sued upon within the time prescribed by statute; and (3) the hen is filed within the time allowed by law in the county clerk’s office for the county where the land sought to impressed with the lien is located.

¶20 The Tcina entities assert that the contested lien is fatally flawed and hence its foreclosure was properly denied by the trial court. Tcina does not contest the existence of a contract for the supply of materials and labor by K & H nor does it deny the lien’s timely filing and prosecution of the foreclosure action. In fact the record offers proof of the contract’s existence, the lien’s timely filing and foreclosure, and substantial compliance with the § 142 requirements. The flaw suggested by the Tcina entities is that the legal description identifying the lands subject to the lien is incorrect because of its reference to the “Fleet Osborn Gilcrease Unit.” The argument is made that the target zones for the recompletion-work were formations other than the one from which the Fleet Osborn Gilcrease Unit produces; hence, the legal description employed in K & H’s lien is incorrect and constitutes a barrier to the lien’s enforcement. The Tcina entities’ argument is not persuasive.

¶ 21 Oklahoma’s extant jurisprudence has on several occasions since statehood addressed deficient legal descriptions in materi-almen and mechanics’ liens and how to resolve the same. It is not required that the legal description used be precise in every detail. Substantial compliance with the lien statute will be found when the description used would enable a person familiar with the property to identify the premises intended to be impressed with lien or would put the party named on inquiry notice — i.e., give the named party enough notice that he should make inquiry about what land the lien is intended to cover.

¶ 22 In today’s case the record demonstrates that K & H’s § 144 oil and gas lien statement substantially recites the data required by § 142; was timely filed in the office of the Seminole County Clerk’s office— the county in which the Salma wells nos. 3 and 4 are situate; and was timely pursued. No issue is taken with the legal description employed in the recorded lien statement other than the recitation of the “Fleet Osborn Gilcrease Unit” above the legal description. The description used is sufficient to put Tci-na Holding Co., Ltd. on inquiry notice whether its leasehold interest lay within the lien’s scope. Under the facts here present it is unimaginable that Tcina Holding Co., Ltd.— an entity owned by the same person who as the leasehold-owners’ agent negotiated for the labor and materials supplied by K & H— would not know what lands were impressed with K & H’s lien or at a minimum with limited inquiry could discover the same. Since Tcina Holding Co., Ltd owns a leasehold interest in lands lying within the scope of K & H’s liens, K & H’s lien put it on inquiry notice to ascertain whether the recorded lien statement encumbered its interest.

¶ 23 We hold that under the adduced evidence and as a matter of law K & H’s lien is in substantial compliance with statutory requirements and hence perfected. As such it is entitled to foreclosure against the leasehold interest owned by Tcina Holding Co., Ltd.

Y

BECAUSE K & H SECURED A MAJORITY OF THE RELIEF WHICH IT SOUGHT IN THE CASE BEFORE THE TRIAL COURT, IT IS THE PREVAILING PARTY IN THE ACTION AND ENTITLED TO AN ATTORNEY-FEE AWARD UNDER THE PROVISIONS OF 42 O.S.2001 § 176.

¶ 24 K & H originally brought an action on December 10, 1998 seeking a money judgment and foreclosure of four oil and gas liens against the named defendants. Between the latter part of December 1998 and January 31, 1999 Tcina, Inc. paid off three of the liens including the attorney-fee allowed under the applicable lien statute and the same were released of record. Trial on the remaining unpaid lien was had on June 10, 1999. Both Tcina, Inc. and Tcina Holding Co., Ltd. would have the Court uphold their attorney-fee awards below because they prevailed at trial on the efficacy of one of the four liens which were originally at issue.

¶ 25 Extant jurisprudence clearly sets forth the correct standard for assessing who is a prevailing party for purposes of an attorney-fee award under the provisions of 42 O.S.1991 § 176. In Swan-Sigler, Inc. v. Black, 1966 OK 90, 414 P.2d 300, syl. 2 the Court held:

[N]o attorney’s fee may be allowed the attorney for the defendant unless the final judgment be against the lien claim.

Here, K & H prevailed against Tcina Holding Co., Ltd. on its lien claim. Hence, the attorney-fee award for Tcina Holding Co., Ltd. is reversed. Nonetheless, Tcina, Inc. defeated K & H’s lien on the Salma wells and the trial court’s attorney-fee award (as to the litigated lien) in favor of Tcina, Inc. is affirmed.

VI

SUMMARY

¶ 26 Since statehood Oklahoma has sought through legislative enactments to protect those who provide labor and materials to others which result in the enhancement of the latter’s property. It is the application of these statutory procedures to the oil and gas lien statement which K & H filed that is called into issue by today’s cause. When an purveyor of labor and oilfield equipment has supplied the same to another and has not been paid, Oklahoma’s statutes provide an avenue of protection for the former if it substantially complies with the applicable statutory scheme — Title 42, Chs. 3 and 5, Oklahoma Statutes!

¶ 27 Our review of the record in the instant case demonstrates that K & H’s effort to perfect and enforce its liens did substantially comply with the applicable statutory provisions and as a matter of law K & H perfected a § 144 lien against Tcina Holding Co., Ltd.’s leasehold interests, which is enforceable by foreclosure. Since Tcina, Inc. is but an agent of the leasehold owners, it has no liability under the contract which it negotiated with K & H on behalf of the owners of the Salma Wells nos. 3 and 4. The trial court, while correct in giving judgment to Tcina, Inc., erred in not allowing foreclosure of K & H’s § 144 lien to proceed against Tcina Holding Co., Ltd.

¶ 28 Lastly, we hold that the trial court erred when it determined who prevailed below and, hence, was entitled to an attorney-fee award. K & H succeeded on its lien claim against Tcina Holding Co., Ltd and should have been awarded an attorney fee under the terms of 42 O.S.2001 § 176. Since Tcina, Inc. defeated the plaintiffs lien claim on the Salma wells, the attorney-fee award in favor of Tcina, Inc. was not entered in error and is affirmed.

¶ 29 Upon certiorari previously granted,

THE COURT OF CIVIL APPEALS’ OPINION IS VACATED; THE TRIAL COURT’S JUDGMENT IS REVERSED IN PART AND AFFIRMED IN PART; AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH TODAY’S PRONOUNCEMENT.

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

¶ 31 KAUGER, J., concurs in result.

¶ 32 OPALA, J., concurs in part; dissents in part.

        . The pertinent terms of 42 O.S.1991 § 144 are: Any ... corporation ... who shall, under contract, expressed or implied, with the owner of any leasehold for oil and gas purposes, ... or agent of such owner, perform labor or services, ... or furnish material, machinery, and oil well supplies used in the digging, drilling, torpedoing, completing, operating, or repairing of any oil and gas well, ... shall have a lien upon the whole of such leasehold ... or lease for oil and gas purposes, the buildings and appurtenances, the proceeds from the sale of oil or gas produced therefrom inuring to the working interest, ... and upon the material and supplies so furnished, ... and upon all the other oil or gas well fixtures and appliances used in the operating for oil and gas purposes upon the leasehold for which said material and supplies were furnished or labor or services performed.[C]ompliance with the provisions of this shall constitute constructive notice of the lien claimant’s lien to all purchasers and encumbrancers of said property or any part thereof, subsequent to the date of the furnishing of the first item of material or the date of the performance of the first labor or services. [Emphasis added.]

      . At various places in the record and the parties’ appellate paperwork the Salma wells are referred to as either the "Salma” or "Selma" wells. For purposes of this opinion these wells will be referred to as the "Salma” wells because that is the name assigned to them in the paperwork Hied with the Oklahoma Corporation Commission.

      . See Mayfield v. H.B. Oil & Gas, 1987 OK 106, 745 P.2d 732, 733 fn. 1 [citing 8 Williams and Meyers, Oil and Gas, Law Manual of Terms, 102 (1984)], where "carried interest" is defined as follows:
      A carried interest is a fractional interest in an oil and gas property, usually a lease, the holder of which has no personal obligation for operating costs, which are to be paid by the owner or owners of the remaining fraction, who reimburse themselves out of production, if any. The person advancing the cost is the carrying party and the other is the carried party.

      . Barnes v. Okla. Farm Bureau Mut. Ins. Co., 2000 OK 55, 11 P.3d 162, 166.

      . Bradley v. Clark, 1990 OK 73, 804 P.2d 425, 427.

      . Sparks v. Midland Supply Co., Inc., 1959 OK 73, 339 P.2d 1056, 1059.

      . See Dismuke v. Cseh, 1992 OK 50, 830 P.2d 188, 190.

      . Whether K & H should have been allowed to amend its filed lien statement is an issue which lies within the trial court's discretion. See Hemisphere Oil & Gas Co. v. Oil Well Supply Co. et al. 104 Okl. 83, 230 P. 245, 247 (Okla.1924); see also Alberti v. Moore, 20 Okl. 78, 93 P. 543 syl. (Okla.1908).

      . Neither Tcina entity denies that it owned leasehold interests in the lands which were impressed with the liens that were discharged.

      . Oklahoma's extant jurisprudence recognizes the rule that an agent for a disclosed principal has no personal liability for the latter's ex con-tractu breach. See Bane v. Anderson, Bryant & Co., 1989 OK 140, 786 P.2d 1230, 1234; Osenbaugh v. Virgin & Morse Lumber Co., 173 Okl. 110, 46 P.2d 952, 954 (Okla.1935).

      .16 O.S.2001 § 16, whose pertinent terms provide:
      Every conveyance of real property acknowledged or approved, certified and recorded as prescribed by law from the time it is filed with the register of deeds for record is constructive notice of the contents thereof to subsequent purchasers, mortgagees, encumbrancers or creditors. [Emphasis added.]

        See also Straub v. Swaim, 1956 OK 97, 296 P.2d 147, 148.

      . For comparable analysis, see Zone Oil and Gas Co. v. Dudley and Heath Drilling Co., 1970 OK 155, 474 P.2d 395, 399.

      . For comparable analysis, see Pierson v. McCrory et al., 93 Okl. 117, 219 P. 641, 642 (Okla.1923).

      . There is no adduced evidence in the record which establishes the owners of the mineral estate and the respective lessees for the Booch and Wapanucka formations underlying the Salma wells nos. 3 and 4.

      . See Sparks Bros. Drilling Co. v. Texas Moran Exploration Co., 1991 OK 129, 829 P.2d 951, 953., where the test for assessing whether a mining partnership exists is succinctly stated. See also Schulte v. Apache Corp. et al, 1995 OK 148, 949 P.2d 291, 297.

      . The Court notes that the trial court did not reach the issue whether a mining partnership existed between Tcina Holding Co., Ltd and the other working interest owners. The judgment denying Tcina Holding Co., Ltd.'s liability is apparently based upon the trial court's erroneous conclusion that Tcina Holding Co., Ltd. owned no interest in the leases covering the mineral estate upon which the Salma wells were drilled. Such a conclusion obviated the trial court's need to reach the mining-partnership issue.

      . See Sparks, supra note 15 at 952. Appellee misreads Sparks when it asserts that it holds when no mining partnership is found to exist, each participant's liability for a well's drilling costs is in rem only. Sparks holds that each participant's liability — when no mining partnership exists — is limited to that quantum of interest [here 5%] which each participant possesses in the well, i.e., each participant is severally liable for expenses in direct proportion to the quantum of leasehold-interest owned. The obligation is not just in rem but rather is both in rem and in personam.

      . For the pertinent terms of 42 O.S.2001 § 144, see supra note 1.

      . See the provisions of 42 O.S.2001 § 146 which provide that § 144 liens "shall be filed in the same manner as is provided for in Sections 141 through 143.4” of Title 42.

      . 42 O.S.2001 § 144.

      . See Amarex v. El Paso Nat. Gas Co., 1987 OK 48, 772 P.2d 905, 909. See also

      . See paragraph 18 above for the pertinent statutory requirements.

      . Horton v. Wachtman Drilling Co., 1963 OK 219, 385 P.2d 802, syl. 3. The terms of 42 O.S. 2001 § 172 require that the lien claimant bring an action to foreclose its lien within one year from the lien's filing date with the county clerk’s office.

      . See Fourth Nat’l Bank of Tulsa v. Appleby, 1993 OK 153, 864 P.2d 827, 834.

      . Corbitt v. Logan, 1933 OIC 140, 20 P.2d 894, syl.l where the Court held:
      "Where a mechanic's lien is properly and timely filed, containing an incorrect description of the property to be affected thereby, but containing all other requirements, but such description is sufficient, when inquiry is pursued, to enable a person to identify the premises intended to be described with reasonable certainty, such lien statement is sufficient to support an action in foreclosure.” Id.

        See also Blanshard v. Schwartz, 1898 OK 32, 54 P. 303, syl.l, 305.

      . See section III above where Tcina Holding Co., Ltd.'s leasehold-ownership interest is discussed.

      . The pertinent provisions of 42 O.S.2001 § 176 are:

        In an action brought to enforce any lien the party for whom judgment is rendered shall be entitled to recover a reasonable attorney's fee, to be fixed by the court, which shall be taxed as costs in the action.


author: JOE C. TAYLOR, Presiding Judge:

text:
    2002 OK CIV APP 59
    SPECIFIC SYSTEMS OF TULSA, INC., Plaintiff/Appellant, v. AMERICAN BANK & TRUST COMPANY, Defendant/Appellee.
    No. 96,611.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Feb. 5, 2002.
    Certiorari Denied April 23, 2002.
    Stephen P. Gray, Stephen P. Gray, P.C., Tulsa, OK, for Plaintiff/Appellant.
    Therese Buthod, James R. Gotwals & Associates, Inc., Tulsa, OK, for Defendant/Ap-pellee.
   Opinion by

JOE C. TAYLOR, Presiding Judge:

¶ 1 Plaintiff, Specific Systems of Tulsa, Inc., appeals the trial court’s order denying Plaintiffs motion for reconsideration or new trial following the court’s grant of a motion to dismiss filed by Defendant, American Bank & Trust Co. (Bank). Based on our review of the record and the applicable law, we reverse and remand for further proceedings.

¶ 2 The basic underlying facts are not disputed. Plaintiff filed an action against Defendant in April 1994 (“the Í994 action”) alleging breach of a 1991 contract between the parties. In September 1999, the 1994 action was dismissed without prejudice, for lack of prosecution. Pursuant to 12 O.S.1991 § 100, Plaintiff filed a new action against Defendant in August 2000 (within a year of dismissal of the 1994 action). Between the time the 1994 action was filed and dismissed, however, Plaintiffs right to do business in the state was suspended, pursuant to 68 O.S. 1991 § 1212, for failure to pay franchise taxes. The statute of limitations on its breach of contract claim also expired.

¶ 3 Plaintiffs right to do business as a corporation was still suspended at the time it filed this action in 2000. The suspended status formed the basis for a motion to dismiss filed by Bank in April 2001, claiming that Plaintiff lacked the capacity to bring the action, and that the statute of limitations had expired on its claim. In its response to Bank’s motion, Plaintiff submitted a “Certificate of Reinstatement” from the Oklahoma Secretary of State, demonstrating that the corporation had paid all back taxes and fees, and had had its right to do business reinstated pursuant to 68 O.S.1991 § 1212(f). The trial court thereafter denied Bank’s motion to dismiss. Bank moved for reconsideration of the denial, arguing that Plaintiffs suspension from being able to legally file an action under Oklahoma law at the time the one-year savings period of 12 O.S.1991 § 100 expired barred Plaintiff permanently from being able to “revive” its claim on which the statute of limitations had run. The trial court agreed with Bank and granted the motion to reconsider, dismissing Plaintiffs claim.

¶4 Plaintiff then moved for reconsideration, which the trial court denied. Plaintiff timely perfected this appeal, asserting the court’s dismissal was legally erroneous and an abuse of discretion.

¶ 5 Under 12 O.S.1991 § 100, if a plaintiff timely files an action and the action is dismissed “otherwise than upon the merits,” the plaintiff may commence a new action within one year after the dismissal even though “the time limit for commencing the action shall have expired before the new action is filed.” This statute, sometimes called a “savings statute,” has been described as acting’ to “extend the statutorily-established limitations period” for filing common law and statutory actions. Grider v. USX Corp., 1993 OK 13, ¶ 6, 847 P.2d 779, 783; see also Cruse v. Bd. of County Comm’rs of Atoka County, 1995 OK 143, 910 P.2d 998.

¶ 6 In Matter of the Estate of Speake, 1987 OK 61, ¶ 6, 743 P.2d 648, 650, the Supreme Court described the effect of § 100 as follows: “A lawsuit timely filed when brought but later dismissed on grounds unrelated to the merits of the controversy falls within the ameliorative relief affordable under the terms of 12 O.S.1981 § 100. The refiling, if effécted in conformity to the terms of § 100, relates the time of the action’s commencement back to the date the petition was brought originally.” (Footnotes and emphasis omitted.) . The Court also has held that § 100 is a remedial statute that is “to be liberally construed.” Valley Vista Dev. Corp. v. City of Broken Arrow, 1988 OK 140, ¶ 14, 766 P.2d 344, 349.

¶ 7 The Supreme Court also has been liberal in applying the reinstatement provisions of 68 O.S.1991 § 1212, which contemplate revival and reinstatement of a suspended corporation’s charter, including its right to bring or defend suits seeking affirmative relief once it pays back franchise taxes. The Court has recognized that § 1212(c) has a retroactive, or “relation back,” component that applies to the right to bring or defend an action, and that “[o]nce the taxes have been paid and the corporation reinstated, the purpose behind section 1212 has been met and no further penalty should be imposed.” Corman v. H-30 Drilling, Inc., 2001 OK 92, ¶¶ 8-9, 40 P.3d 1051, 1054 (internal quotation marks omitted). The Court has further noted that the purpose of § 1212(c) is “to encourage taxpayers to pay their franchise taxes, hot to trap them into losing their rights to defend lawsuits.” Id. at ¶ 9.

¶ 8 In Corman the Court reversed a trial court decision that prohibited a suspended corporation from defending without first giving it an opportunity to pay its back franchise taxes. Holding that the trial court’s decision was constitutionally infirm, the Supreme Court further held that a suspended corporate defendant should be given a “reasonable opportunity” to pay its franchise taxes, “but if it does not do so at the first opportunity after the fact of its non-payment has been raised in a lawsuit, its right to pay them should be deemed to have been waived.” Id. at ¶ 20.

¶ 9 Applying these decisions to the ease at bar, we find the trial court committed error of law when it dismissed Plaintiffs suit after the corporation demonstrated it had reinstated its corporate charter by paying its franchise taxes. The record reflects Plaintiff originally filed its action in 1994 at a time when its charter was not suspended and it had the capacity to sue. Under the reasoning of Estate of Speake, Plaintiffs action filed in 2000 relates back in time to the date when the case originally was filed, when the corporation clearly had the “capacity to sue” and the right to bring the action, irrespective of its later suspension. Although its failure to thereafter pay its taxes may have deprived it of the right to continue prosecuting the ease as 'long as the- taxes were not paid, the general tenor and reasoning of. the Oklahoma Supreme Court eases which have dealt with this subject lead us to conclude that Plaintiffs action of paying the taxes and obtaining reinstatement immediately upon the issue being raised in the ease cured its later incapacity to sue, even though reinstatement occurred after the commencement of the new action and after the limitations period had expired. In this regard, see Amman Food & Liquor, Inc. v. Heritage Insurance Co., 65 Ill.App.3d 140, 22 Ill.Dec. 242, 382 N.E.2d 562 (1978), and York & York Construction Co. v. Alexander, 296 A.2d 710 (D.C.Ct.App.1972), both of which allowed reinstatement to relate back so as to preserve an action filed by a suspended corporation during the limitations period.

¶ 10 The rationale of the court in Amman is particularly consistent with the policies expressed by the Oklahoma Supreme Court concerning suspension for failure to pay franchise taxes. There, the Illinois court found that the comparable portion of the state’s Business Corporation Act “is a measure designed to encourage payment of taxes,” and that the measure is “coercive rather than punitive in character because it contemplates routine reinstatement of ... tax-delinquent corporations.” 22 Ill.Dec. 242, 382 N.E.2d at 568. Moreover, the court noted, “the goal of maximizing tax revenues,” which the franchise tax provision is intended to promote, “would not be served by a contrary result, for if the rule were that payment of its back taxes would not enable [the plaintiff corporation] to withstand [the defendant’s] motion, [the plaintiff] would have had no incentive to pay its delinquent taxes.” Id.

¶ 11 Although Bank cogently argues that Plaintiffs action should be barred because the limitations period expired while Plaintiffs corporate charter was suspended, the cases from the California Court of Appeal on which Bank relies depend on a statutory provision not present in Oklahoma’s reinstatement provision. See Benton v. County of Napa, 226 Cal.App.3d 1485, 277 Cal.Rptr. 541 (1991); Sade Shoe Co. v. Oschin & Snyder, 217 Cal.App.3d 1509, 266 Cal.Rptr. 619 (1990). That statute, found in California’s Revenue and Taxation Code § 23305a, specifies that issuance of a “certificate of revivor” by the California Franchise Tax Board “shall be without prejudice to' any action, defense or right which has accrued by reason of the original suspension or forfeiture_” The comparable Oklahoma statute, 68 O.S.1991 § 1212, does not contain such language.

¶ 12 Although it is true that, in Bethlehem Steel Corp. v. Giese, 1984 OK 28, 681 P.2d 769, the Supreme Court held that relation back of good standing does not protect corporate officers and directors from incurring personal liability during the period of suspension, the Court relied on specific language in § 1212(c) of the Oklahoma statute imposing such liability. As noted, the Oklahoma statute does not contain language similar to that found in the California provision suggesting that defenses or rights which accrue to persons other than the suspended corporation shall not be affected by reinstatement. We therefore are not persuaded by the reasoning of the California appellate court in Benton and Sade.

¶ 13 Accordingly, for the reasons set forth above, the judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with the views expressed herein.

¶ 14 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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

      . Plaintiff alleged it entered into a contract in 1991 for Bank to be its depository bank, but Bank had deposited checks, made out to Plaintiff, into accounts other than Plaintiff's account.

      . Bank was not served with Plaintiff's re-filed petition until April 10, 2001; Bank's motion to dismiss was filed on April 20, 2001.

      . The certificate from the Secretary of State, submitted by Bank in support of its motion to dismiss, reflects a suspension date in January 1997.

      . Plaintiff also claimed in its petition in error that the trial court's decision was an unconstitutional abridgement of Plaintiff's right to a jury trial. Because this argument was not raised in the trial court before being raised on appeal, and because we dispose of this appeal on other grounds, we do not address this issue. See Northwest Datsun v. Okla. Motor Vehicle Comm’n, 1987 OK 31, ¶ 16, 736 P.2d 516, 520.