text:
    Hans-Martin SCHEMPP, Plaintiff-Appellant, v. LUCRE MANAGEMENT GROUP, LLC and Richard L. Rollings, Defendants-Appellees.
    No. 02CA0731.
    Colorado Court of Appeals, Div. IV.
    July 3, 2003.

      Kennedy & Kennedy, P.C., Cynthia T. Kennedy, Lafayette, Colorado, for Plaintiff Appellant.
    Samson, Pipis & Marsh, LLC, Richard A. Marsh, Longmont, Colorado, for Defendants Appellees.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge NIETO.

In this action under the Colorado Uniform Fraudulent Transfer Act (CUFTA), § 88-8-101, et seq., C.R.8.2002, plaintiff, Hans-Martin Schempp, appeals the judgment entered in favor of defendants, Luere Management Group, LLC and Richard L. Rollings, We affirm.

Plaintiff held a judgment against Helmut Schaal, who is not a party to this action. Plaintiff registered the judgment in Adams County District Court as a foreign judgment. Plaintiff then commenced this action after Schaal sold ten office condominium units to defendants in 1996. Plaintiff asserted that Schaal did not receive a reasonable equivalent value in exchange for the property and that the property was transferred to Luere with actual intent to hinder, delay, or defraud Schaal's creditors.

A trial to the court was held, and the court dismissed plaintiff's claims on defendants' motion at the conclusion of plaintiff's case. Plaintiff appealed, and a division of this court reversed the dismissal order and remanded the case to the trial court for further proceedings. See Schempp v. Lucre Mgmt. Group, LLC, 18 P.3d 762 (Colo.App.2000)(Schempp I ).

After a second trial, in which the parties presented additional testimony and evidence, the court found that Luere paid reasonably equivalent value for the units and therefore plaintiff was not entitled to recover pursuant to §§ 38-8-105(1)(b) or 38-8-106(1), C.R.S. 2002. The court further found that plaintiff was not entitled to recover under § 38-8-105(1)(a), C.R.S.2002, because he failed to prove that Rollings or Schaal made the transfer with the actual intent to hinder, delay, or defraud creditors. The court discharged the receivership concerning the units and ordered that they be returned to Luere. This appeal followed.

L.

As a preliminary matter, we address defendants' contention that this appeal is now moot because plaintiff, through a company that he owns, purchased the units at a foreclosure sale in 2001. Defendants allege facts outside the record to show mootness, and the record has not been supplemented to support these factual allegations. Further, they do not cite any legal authority in addressing this issue. Therefore, we conclude that the issue has not been adequately briefed, and we do not consider it. See Westrac, Inc. v. Walker Field, 812 P.2d 714 (Colo.App.1991)(counsel must inform the court as to the specific errors relied upon, supporting facts in the record, and legal authority supporting claims).

IL.

Plaintiff contends that the trial court clearly erred in its factual findings concerning the factors in § 38-8-105(2), C.R.S.2002, and in its ultimate conclusion that neither Schaal nor Rollings transferred the units with the intent to hinder, delay, or defraud creditors. We disagree.

Section 38-8-105(1)(a) provides that a transfer is fraudulent as to a creditor if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor. Section 38-8-105(2) provides a number of factors that may be considered in determining actual intent under § 88-8-105(1)(a). These factors, or "badges of fraud," are used because the intent to hinder, delay, or defraud creditors is seldom susceptible of direct proof. "While a single badge of fraud may only create suspicion of fraud, several badges of fraud considered together may infer intent to defraud." Schempp L, supra, 18 P.8d at 764.

"[Flor purposes of CUFTA, the intent of the transferee can be imputed to the debtor when the transferee is in a position to dominate or control the disposition of the debtor's property." Schempp I, supra, 18 P.3d at 765.

Whether a debtor intended to hinder, delay, or defraud creditors is a question of fact. Thus, we determine whether there is evidentiary support for the trial court's findings. The credibility of witnesses and the sufficiency, probative effect, and weight of the evidence are committed to the sound discretion of the trial court. On review, we must view the record in the light most favorable to the judgment. Silverberg v. Colantuno, 991 P.2d 280 (Colo.App.1998). The trial court's factual findings must be accepted unless they are so clearly erroneous as to find no support in the record. Tiger v. Anderson, 976 P.2d 308 (Colo.

The trial court considered each of the factors in § 38-8-105(2), and plaintiff challenges the findings on all factors except those relating to § 88-8-105(2)(a), where the court found that the transfer to Luere and Rollings was to an insider; § 38-8-105(2)(F), where the court found that Schaal had absconded; and § 38-8-105(@2)(k), which the court found to be inapplicable. We address each challenged finding in turn.

A. Section 38-8-105(2)(b)

The trial court found that Schaal did not maintain possession or control of the units following the transfer. Plaintiff contends that this finding is erroneous because Rollings, who is Schaal's agent, retained possession, and Rollings's possession of the units should be imputed to Schaal. We are not persuaded.

Initially, we reject plaintiff's assertion that the division in Schempp I mandated that the trial court collapse the debtor and his agent when determining whether to impute the transferee's intent to the debtor. The division in Schempp I held only that the intent of the transferee may be imputed to the debtor, not that the transferee's intent is interchangeable or synonymous with the debtor's intent.

Plaintiff does not allege that defendants' retention of the property allowed Schaal to retain any degree of possession or control over the units, nor does he explain how defendants' retention of the property indicates the fraudulent intent of Schaal. Thus, we conclude that the trial court did not err in finding that this factor was not established.

B. Section 38-8-105(2)(c)

The trial court found that the transfer was not concealed. Plaintiff contends that the trial court erred because there was evidence that Rollings concealed the nature of the transaction from Schaal. We disagree.

This factor, by its plain language, addresses whether the transaction was concealed generally. See In re Thomason, 202 B.R. 768 (Bankr.D.Colo.1996)(transfer was concealed where assignment was never recorded in the public records or revealed to trustee and creditors of defendant); see also Walton v. First Nat'l Bank, 13 Colo. 265, 277, 22 P. 440, 444 (1889)("an agreement between the party giving and the party receiving ... an instrument that it shall be kept from the public, or that it shall not be entered 'of record for an unreasonable or indefinite time, is one of the strongest badges of fraud").

While plaintiff cites to evidence that Rollings sought to conceal the nature of the transaction, plaintiff does not contest the court's findings that the transfer here was not concealed generally, that the purchase agreement discloses that Rollings was the manager of Luecre, and that the transaction was recorded. Thus, we conclude that the trial court properly found that concealment was not established.

C. Section 38-8-105(2)(d)

The trial court found that while Schaal had been sued prior to the transfer in question, there was evidence that he had substantial assets that reduce the significance of these lawsuits. Plaintiff contends that the court erred in considering mitigating cireumstances rather than simply concluding that the factor favored plaintiff.

However, the list of factors in § 38-8-105(2) is not exclusive, and a court should evaluate all the relevant circumstances in considering the factors. "Thus the court may appropriately take into account all indi-cla negativing as well as those suggesting fraud...." Section 38-8-105 emt. 6. Therefore, we perceive no error by the trial court in considering this evidence.

D. Section 88-8-105(2)(e)

The court found that the transfer did not dispose of substantially all of Schaal's assets because Schaal held significant assets following the transfer. Plaintiff argues that the only evidence before the trial court to support this finding was Rollings's testimony concerning Schaal's assets 'and that it was improper for the court to rely on this testimony because it was not based on actual knowledge of Schaal's ownership interests. However, Rollings testified that he was an accountant for Schaal and had knowledge of Schaal's assets. He further testified that in 1995, Schaal was a director and substantial shareholder of certain entities, and that after the transfer at issue here, those entities sold real property for a total of $2,740,000. He further testified that in 1995 the property had no mortgage debt.

Therefore, there is evidence to support the trial court's finding that the transfer did not include substantially all of Schaal's assets.

E. Section 88-8-105(2)(g)

The court found that the evidence did not show that Schaal removed or concealed assets. Plaintiff argues that the transfer of the units to Luere constitutes removal of Schaal's assets from his creditors. Plaintiff's argument assumes that the transfer to Luere was fraudulent. It would be improper for the court to assume that the transfer was fraudulent and then use that assumption in weighing one of the factors used to determine whether the transfer was fraudulent.

Further, as the trial court found, the transfer was not concealed and was recorded. Plaintiff does not explain how the sale constituted concealment of assets by Schaal. To the extent that plaintiff argues that the court erred in finding otherwise, we reject his argument.

F. Section 38-8-105(2)(D)

The trial court found that plaintiff failed to prove that the $94,000 per unit received by Schaal was not reasonably equivalent value under the cireumstances.

Reasonably equivalent value, in the context of CUFTA, is not wholly synonymous with market value. However, market value is an important factor to consider in the assessment. - Determination of reasonably equivalent value requires analysis of all the facts and circumstances surrounding the transaction. The standard of "reasonably equivalent value" implies a rule of reasonableness in light of the particular cireum-stances.

Schempp I, supra, 18 P.3d at 765 (citation omitted); Silverberg v. Colantuno, supra.

Plaintiff argues that the court's finding is clearly erroneous because it ignores the value of the units to plaintiff, who could have sold the units individually for a price greater than Schaal received for their bulk sale. However, the division in Schempp I concluded that the trial court properly considered the bulk sales aspect of the transaction in determining reasonably equivalent value. That conclusion is the law of the case, and we follow it here. See Giampapa v. Am. Family Mut. Ins. Co., 64 P.3d 230, 243 (Colo.2003)("When a court issues final rulings in a case, the 'law of the case' doctrine generally requires the court to follow its prior relevant rulings.").

While there was evidence of a range of offers to purchase similar units, some for more and some for less than $94,000 per unit, the court found evidence of a comparable bulk sale to be most convincing. That transaction involved a bulk sale of similar units and one larger unit in the same complex. There was conflicting evidence concerning how the total sales price in that transaction should be allocated among the units purchased, but the trial court credited evidence that the similar units sold for $90,000 each.

. Thus, the court's finding that Schaal received reasonably equivalent value is supported by the record, and we will not disturb it.

G. Section 38-8-105(@)G)

The trial court found that plaintiff did not prove that Schaal was insolvent at or near the time he transferred the units. The eourt found that there was evidence that Schaal had assets in other states and countries and that plaintiff did not provide evidence of the disposition of those assets. It noted that while there was some evidence that Schaal failed to pay some of his debts as they became due, plaintiff did not show that Schaal generally failed to do so, and thus, there was no presumption that Schaal was insolvent pursuant to $ 38-8-108(2), C.R.S. 2002.

Section 38-8-103(2) provides that "A debt- or who is generally not paying his debts as they become due is presumed to be insolvent."

Plaintiff contends that the evidence was undisputed that Schaal was not paying his debts as they became due. Indeed, there was evidence that Schaal failed to honor checks of $650,000 and $60,000, did not pay taxes as they became due, allowed property belonging to his partnership to be foreclosed on, and had outstanding loans he was not paying. However, as the trial court found, there was evidence that Schaal had significant assets in Colorado and in other states and foreign countries. The court obviously inferred that, given the widespread nature and extent of Schaal's assets, evidence of failure to pay some debts was not sufficient to prove that he was "generally not paying his debts."

Accordingly, this finding was not clearly erroneous.

H. Section 38-8-105(20)(G)

The court found that the transfer did not occur shortly before or after a substantial debt was incurred. Plaintiff argues that this finding is erroneous because Schaal issued a check for $650,000 that did not clear. However, the point in time that the bank failed to honor the check was not the point at which Schaal incurred the underlying debt. Plaintiff does not cite to any evidence indicating the nature of the debt for which Schaal issued the check or the date such debt was incurred. Thus, the evidence presented does not show when the debt was incurred, and we reject his argument.

In conclusion, because the trial court properly weighed and considered all the factors in reaching its conclusion that neither Rollings or Schaal had actual intent to defraud eredi-tors, we perceive no basis to overturn that decision.

IIL.

Plaintiff also contends that, because Schaal could have set aside the transfer to defendants based on Rollings's breach of his fidu-clary duty as Schaal's agent, plaintiff should be placed in Schaal's position and allowed to have the transfer set aside. We disagree.

CUFTA does not provide for a ered-itor to set aside a transaction based on an agent's breach of fiduciary duty to a principal. Instead, a creditor's right to impeach a transfer depends on a finding of its fraudulent character. See In re Int'l Resorts, Inc., 46 B.R. 405 (N.D.Ala.1984)(while an officer's or agent's unauthorized act may be voidable by a corporation, the corporation's ereditor cannot hold the officer or agent responsible for such an act because no fiduciary duty is owed to the creditor); O'Connmer Mining & Mfg. Co. v. Coosa Furnace Co., 95 Ala. 614, 10 So. 290 (1891)(creditors are not entitled to disaffirm a transfer of the property of the corporation made by its directors or other agents merely because the corporation itself or its stockholders could have done so; a creditor's right to impeach the transaction depends on its fraudulent character).

Accordingly, we reject plaintiff's argument that he is entitled to "stand in the shoes" of Schaal and undo the conveyance based on a breach of fiduciary duty by Rollings.

IV.

Plaintiff also contends that the evidence did not support the trial court's finding that the transaction between Schaal and defendants was arm's length. We disagree.

The trial court found that Schaal was aware that he was selling the units to a corporation controlled by Rollings. The court based the finding on evidence that the contract between Schaal and Luere indicated that Rollings was the manager of Lucre and that Schaal initialed or signed each page of the agreement. Thus, the court's conclusion that the transaction was arm's length is supported in the record.

Plaintiff also argues that defendants had made a judicial admission that Schaal was not aware of defendants' involvement in the transfer. However, while this argument is addressed in plaintiff's reply brief, it was not identified as an issue in his opening brief, but mentioned only in a footnote without citation to any legal authority,. Under these cireumstances, this issue was not properly raised on appeal. See Province v. Johnson, 894 P.2d 66 (Colo.App.1995)(arguments raised for the first time in reply brief are not properly raised).

In any event, we reject plaintiffs argument that the statement in question was a judicial admission.

"A judicial admission is a formal, deliberate declaration which a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters or of facts about which there is no real dispute." Kempter v. Hurd, 713 P.2d 1274, 1279 (Colo.1986).

Plaintiff refers to an argument defendants made in their initial trial brief, which was based on an affidavit presented by plaintiff. The argument was not an unequivocal adoption of plaintiff's evidence on that issue and thus was not a judicial admission. See Kemper v. Hurd, supra, 713 P.2d at 1279.

v.

Plaintiff contends that the trial court erred in failing to conclude that the transaction was presumptively fraudulent because an agency relationship existed between Schaal and Rollings. We disagree.

Plaintiff relies on Gutheil v. Polichio, 103 Colo. 426, 86 P.2d 972 (1939), to support his argument. However, that case is inapposite because it involved a transaction between a husband and wife, which is a special situation in which fraud is presumed. See Mohler v. Buena Vista Bank & Trust Co., 42 Colo.App. 4, 588 P.2d 894 (1978). Plaintiff has cited no authority, and we are aware of none, for the proposition that a presumption of fraud attaches to a transfer between a principal and an agent who are not husband and wife.

Moreover, pursuant to § 38-8-105, the intent to hinder, delay, or defraud creditors must be established by the creditor, typically by showing a number of "badges of fraud." Nothing in § 38-8-105 indicates that plaintiffs burden of proving fraudulent intent may be reduced by attaching a presumption of fraud to a transaction between a principal and agent. See In re Thomason, supra, 202 B.R. at 771 ("under [CUFTA], the burden of proof lies with the Plaintiff creditor to prove each and every element of a fraudulent transfer under the statute before the debtor ... Defendants must come forward to prove their entitlement to the defense of good faith and reasonably equivalent value"); Mohler v. Buena Vista Bank & Trust Co., supra, 42 Colo.App. at 6, 588 P.2d at 896 ("We cannot read out of [the former Fraudulent Transfer Act] the explicit requirement that 'intent to hinder, delay, or defraud be established.").

The judgment is affirmed.

Judge GRAHAM and Judge PLANK concur.


source: Caselaw Access Project

author: Judge PIERCE.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Michael J. STOVALL, Defendant-Appellee.
    No. 02CA1340.
    Colorado Court of Appeals, Div. A.
    July 3, 2003.

      Edward J. Rodgers, District Attorney, David A. Bergin, Deputy District Attorney, Canon City, Colorado, for Plaintiff-Appellant.
    No Appearance for Defendant-Appellee.
   Opinion by

Judge PIERCE.

The People appeal a trial court order regarding restitution. We reverse and remand for further proceedings.

Pursuant to a plea agreement, defendant, Michael J. Stovall, pleaded guilty to numerous charges, including first degree murder. He was sentenced to life imprisonment without the possibility of parole on the murder charge and 896 years imprisonment on the remaining charges. All sentences were ordered to be served consecutively.

Thereafter, the trial court declined to order restitution, stating that it would be "useless" to do so given defendant's lengthy sentence and lack of present income or assets. The court further stated that the amount of judicial and other resources required to conduct a restitution hearing "would far exceed ... any amounts that we could expect to ever be generated by" such an order.

The People argued that the court's stated reasons for denying restitution were improper under the restitution statute, § 18-1.3-603(1), C.R.S.2002 (formerly § 16-18.5-103(1)). The court found that, while it "would never desire to flout the authority of the legislature ... it seems that the legislative intent is not thwarted in this unusual set of cireumstances."

On appeal, the People contend that the trial court abused its discretion in denying restitution by failing to follow "the clear mandates" of the restitution statute. We agree.

Our task in construing a statute is to ascertain and give effect to the General Assembly's intent and purpose in enacting the statute. If the plain language of the statute clearly expresses the legislative intent, then we must give effect to the ordinary meaning of that language, unless to do so would lead to an absurd result. People v. Luther, 58 P.3d 1013 (Colo.2002).

Section 18-1.3-608(1) requires that every judgment of conviction for a felony "include consideration of restitution" and "one or more of the following":

(a) An order of a specific amount of restitution to be paid by the defendant;
(b) An order that the defendant is obligated to pay restitution, but that the specific amount of restitution shall be determined within the ninety days immediately following the order of conviction, unless good cause is shown for extending the time period by which the restitution amount shall be determined;
(c) An order, in addition to or in place of a specific amount of restitution, that the defendant pay restitution covering the actual costs of specific future treatment of any victim of the crime; or
(d) A specific finding that no victim of the crime suffered a pecuniary loss and therefore no order for the payment of restitution is being entered.

Thus, under the plain language of the statute, restitution may be denied only after a finding that the victim has not suffered a pecuniary loss. See § 18-1.3-603(1)(d), C.R.S.2002. Because the trial court made no such finding here, we conclude that it erred in denying the People's motion.

Our interpretation of § 18-1.83-608(1) is further supported by the language in § 18-1.3-601(1)(b) and (2), C.R.S.2002 (formerly § 16-18.5-101(1)(b), (@). In § 18-1.3-601(1)(b), the General Assembly declared that persons found guilty of a crime "should be under a moral and legal obligation to make full restitution to those harmed by their misconduct." Further, § 18-1.3-601(2) provides, "It is the intent of the general assembly that restitution be ordered, collected, and disbursed to the victims of crime and their immediate families."

We recognize that some of the purposes of restitution, such as providing a mechanism for rehabilitation, deterring future eriminality, and aiding the offender in his or her reintegration as a productive member of society, see § 18-1.3-601(1)(c), (1)(d), (2), C.R.S. 2002 (formerly § 16-18.5-101(1)(c), (1)(d), (2)), may not apply here. However, that cireumstance does not, in our view, negate the legislative mandate that restitution be ordered in every case in which the victim has suffered a pecuniary loss, regardless of the defendant's ability to pay restitution. Cf. People - v. Salas, 42 - P.3d - 68 (Colo.App.2001)(noting the General Assembly's prior deletion of the requirement that restitution be based, in part, on the defendant's ability to pay). Nor should the amount of resources required to collect restitution relative to the amount expected to be collected be a factor in determining whether to order it.

The order is reversed, and the case is remanded to the trial court with directions to reconsider its refusal to order restitution in accordance with § 18-1.3-601, et seq., C.R.S. 2002, and the views expressed in this opinion.

Judge ROY and Judge HUME concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.


author: Judge NIETO.

text:
    Brian MILLER, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF HEALTH CARE POLICY AND FINANCING, Defendant-Appellee.
    No. 02CA1382.
    Colorado Court of Appeals, Div. IV.
    July 3, 2003.

      Colorado Legal Services, Inc., Peter Kom-los-Hrobsky, Joel Hayes, Denver, Colorado, for Plaintiff-Appellant.
    Ken Salazar, Attorney General, Judith L. Tannous, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge NIETO.

Plaintiff, Brian Miller, appeals the district court's judgment affirming the final agency decision of defendant, Department of Health Care Policy and Financing, finding him ineligible for Home Care Allowance (HCA) benefits. We affirm.

HCA benefits provide a special allowance for securing in-home services to eligible disabled persons. Dep't of Health Care Policy & Financing Reg. No. 8484.10(A), 10 Code Colo. Regs. 2505-10. Eligibility for HCA benefits is based on a number of factors, including financial need. Dep't Reg. No. 8484.20. Financial need is determined by adding the disabled person's HCA "authorized amount" to "the appropriate categorical grant standard" and subtracting the person's actual income. Dep't Reg. No. 8.484.20(A). The regulation refers to the categorical grant standards for Old Age Pension (OAP), Supplemental Security Income (SST), and Aid to the Needy Disabled (AND). Dep't Reg. No. 8.484.20(A).

Plaintiff sustained a brain injury and began receiving SSI and HCA benefits He received HCA benefits based on the SSI categorical grant standard, as he qualified for SSI at that time. However, plaintiff subsequently began receiving Social Security Disability Insurance (SSDI), which provided benefits great enough to disqualify him from SSI. Plaintiff was then notified by the Department that his HCA benefits were being terminated because his income then exceeded the needs standard for his category of assistance.

Plaintiff appealed the Department's decision, and an administrative law judge (ALJ) issued an initial decision reversing the denial of HCA benefits. The ALJ found that "it makes more sense to apply the assistance standard for SSI" to plaintiff because he is "more like a person receiving SSI than a person receiving AND."

The Department filed exceptions to the initial decision and subsequently issued a final agency decision reversing the ALJ's decision. The final agency decision was based on application of the AND categorical grant standard.

Plaintiff then sought judicial review of the final decision, and the trial court upheld it. This appeal followed.

Plaintiff contends that the final agency decision erroneously concluded that AND, not SSI, is the appropriate categorical grant standard under Dep't Reg. No. 8.484.20(A). He argues that because he was not receiving benefits pursuant to OAP, SSI, or AND, the appropriate categorical grant standard is a question of fact and that the ALJ's finding that SSI is the more appropriate standard in his case must be upheld. We disagree. __

The decision of an administrative agency may be reversed only if the court finds the agency acted in an arbitrary and capricious manner, made a determination that is unsupported by the evidence in the record, erroneously interpreted the law, or exceeded its constitutional or statutory authority. Section 24-4-106(7), C.R.S.2002; Morgan v. Colo. Dep't of Health Care Policy & Fin., 56 P.3d 1136 (Colo.App.2002).

The issue here is not one of fact, but one of law, that is, the interpretation of the regulations. "Interpretation of a regulation by the ageney charged with its enforcement is generally entitled to great deference and must be accepted if it has a reasonable basis in law and is warranted by the record." Morgan v. Colo. Dep't of Health Care Policy & Fin., supra, 56 P.3d at 1139-1140.

The parties agree that if SSI is the appropriate categorical grant standard in this case, plaintiff is entitled to HCA benefits. They also agree that if AND is the appropriate standard, plaintiff is not entitled to HCA benefits. Thus, the issue in this case is whether, for purposes of determining HCA benefits, the AND standard applies to an individual who loses SSI benefits and who is not receiving benefits under any of the programs referred to in Dep't Reg. No. 8.484.20(A).

Dep't of Health Care Policy & Financing Reg. No. 8.400.38, 9 Code Colo. Regs. 2503-1, provides: "When a person loses SSI payment, for whatever reason, he shall lose eligibility for the [SST] program. The following procedures shall be followed: A. [SSI] cases shall be changed to state AND and the cases processed in accordance with the rules for that program ...."

In its final agency action, the Department concluded that the AND standard applies to plaintiff because pursuant to Dep't Reg. No. 3.400.38, his case was changed to AND when he lost SSI benefits. We agree with the Department's conclusion.

Here, because plaintiff was no longer eligible under the SSI program, his case was changed to AND pursuant to Dep't Reg. No. 3.400.38. Accordingly, the SSI standard cannot be the appropriate categorical grant standard for purposes of HCA benefits. The only standard that could apply to plaintiff is the AND standard.

Plaintiff argues that HCA benefits are governed by Dep't Reg. No. 8.484, et seq., which is codified in 10 Code Colo. Regs. 2505-10, and therefore, Dep't Reg. No. 3,400.38, which is codified in 9 Code Colo. Regs. 2508-1, is not applicable in determining eligibility for HCA benefits, because these regulations are in separate parts of the Code of Colorado Regulations. However, Dep't Reg. No. 8.484.20(A) and (B) specifically refer to 9 Code Colo. Regs. 2508-1 with respect to determining financial eligibility of disabled persons.

We must construe the whole regulation to give a consistent, harmonious, and sensible effect to all of its parts. State Dep't of Soc. Servs. v. Hillhaven Corp., 923 P.2d 129 (Colo.App.1995). Thus, because there is a relationship between these two code see-tions, we reject plaintiff's argument that Dep't Reg. No. 3.400.38 is not applicable in determining HCA benefits.

Plaintiff also argues that individuals who lose SSI benefits because they become eligible for greater Social Security benefits will necessarily have too much income to qualify for AND. Therefore, plaintiff argues, if the AND standard applies to such individuals, they will never qualify for HCA benefits. Plaintiff argues such an interpretation renders the "appropriate categorical grant standard" language in Dep't Reg. No. 8.484.20(A) meaningless. However, the fact that the AND standard may render an individual ineligible for HCA benefits in such cases comports with the purpose of the SSI, AND, and HCA programs, which is to provide benefits to individuals based on financial need. See Dep't Reg. Nos. 3.400.1, 8.484.20(A), (B); see also Dep't Reg. No. 8.460.85 (a person will not be eligible for assistance if his or her total countable income equals or exceeds the appropriate standard of assistance). Therefore, the fact that the applicable grant standard in such cireamstances would always render the individual ineligible for HCA benefits implements one of the purposes of the HCA program and does not render the "appropriate categorical grant standard" language meaningless. '

Accordingly, the final agency decision has a reasonable basis in the law and is warranted by the record.

The judgment is affirmed.

Chief Judge DAVIDSON and Judge GRAHAM concur.


author: Judge DAILEY.

text:
    In re the MARRIAGE OF Merilyn M. FERRIS, Appellant, and Alan G. Ferris, Appellee.
    No. 02CA1529.
    Colorado Court of Appeals, Div. III.
    July 17, 2003.
    Catherine C. Burkey, P.C., Nancy Kara, Grand Junetion, Colorado, for Appellant.

      Kay Snider Coffman, P.C., Kay Snider Coffman, Grand Junction, Colorado, for Ap-pellee.
   Opinion by

Judge DAILEY.

In this post-dissolution of marriage proceeding between Merilyn M. Ferris (mother) and Alan G. Ferris (father), mother appeals the magistrate's order denying her motion for reconsideration and the district court's order denying the motion for review of the magistrate's orders. We vacate the orders and remand for additional proceedings.

In the 1997 permanent orders, father was awarded sole legal custody of the parties' three children, and mother was granted parenting time and ordered to pay child support. In December 2001, mother filed a verified motion to modify decision-making responsibility, parenting time, and child support, alleging that the children were endangered by father's abuse. She supported the motion with her own affidavit and a drawing by one of the children and "reserve[d] the right to supplement this motion with additional documentation and affidavits regarding the extensive abuse."

Father filed a motion to dismiss, contending that mother's affidavit was insufficient to sustain the motion. On January 14, 2002, the magistrate granted the motion to dismiss for the reasons stated by father.

Ten days later, mother filed a motion for reconsideration of the dismissal. Father responded, inter alia, that there is no provision allowing a motion for reconsideration of a magistrate's order. The magistrate denied the motion for reconsideration for the reasons asserted by father and awarded father attorney fees.

On March 18, 2002, mother filed, pursuant to C.R.M. 7, a motion for district court review of the magistrate's two orders.

The district court determined that the motion for review was not timely filed as to the magistrate's January order of dismissal and therefore concluded it had no jurisdiction to review that order. The court, however, found that the motion for review was timely filed as to the order denying the motion for reconsideration. - Concluding, inter alia, that the proper procedure would have been to file a motion for district court review, rather than a motion for reconsideration by the magistrate, the court denied the motion for review as to the magistrate's second order. Father was again awarded his attorney fees.

I.

Mother contends that her affidavits were sufficient to support the motion to modify, that she should have been allowed to supplement the motion with additional affidavits, that the court should have construed the motion for reconsideration as a C.R.C.P. 60 motion,; and that father is not entitled to attorney fees. We do not reach any of these contentions because we conclude that the magistrate never had jurisdiction to enter either of the two orders.

Although not raised by the parties, we choose to address the issue of subject matter jurisdiction. See In re Marriage of Dureno, 854 P.2d 1352, 1354 (Colo. court may sua sponte consider the district court's lack of subject matter jurisdiction notwithstanding the parties' failure to raise the issue). Prior to deciding the case, we requested and received from the parties simultaneously filed supplemental briefs addressing the issue.

Mother's motion to modify was filed after January 1, 2000, and therefore this case is governed by the current Colorado Rules for Magistrates. See People ex rel. Garner v. Garner, 33 P.3d 1239, 1241 (Colo.App.2001)(date of filing of motion at issue, not date of commencement of case, dictates application of new C.R.M.).

C.R.M. 6(b) states that in family law cases, a district court magistrate may perform any or all of the duties specified in §§ 13-5-301 to 13-5-805, C.R.98.2002. In re Marriage of Malewicz, 60 P.3d 772, 774 (Colo.App.2002). Section 18-5-801(8)(e)(V), C.R.98.2002, provides that family law magistrates have the power and authority to conduct hearings under the Uniform Dissolution of Marriage Act (UDMA), § 14-10-101, et seq., C.R.S.2002, regarding "[plarenting time, and the modification thereof, including motions to restrict parenting time or parental contact, where the allocation of parental responsibilities is not an issue" (emphasis added).

Here, mother's motion encompassed the modification of parental responsibilities because, at a minimum, the parties' decision-making responsibilities were at issue. See In re Marriage of Schenck, 39 P.3d 1250, 1251 (Colo.App.2001)(under § 14-10-124(1.5), C.R.S.2002, parental responsibilities include both parenting time and decision-making responsibilities). - Onee decision-making responsibilities were at issue, the magistrate, under § 13-5-301(8)(e)(V), lacked jurisdiction to act on the motion. (We express no opinion as to any ambiguity in § 13-5-301(8)(e)(V), which grants magistrates authority to hear certain parenting time issues, while at the same time prohibits them from hearing issues as to the allocation of parental responsibilities, given that parental responsibilities include parenting time.)

We note that § 13-5-801(8)(e)(V.5), C.R.S.2002, provides that family law magistrates may also conduct "[hJearings upon motions" under the UDMA. See In re Marriage of Phelps, 74 P.3d 506, --, 2003 WL 21197284 (Colo.App. No. 02CA0354, May 22, 2003). To the extent that this provision could arguably be construed to encompass the motion to dismiss or the motion to modify here, we reject that analysis. The more specific provision prohibiting magistrates' resolution of issues involving the allocation of parental responsibilities prevails over the general provision allowing magistrates to hear all motions under the UDMA. See § 2-4-205, C.R.S.2002; People v. Frazier, -- P.3d --, --, 2003 WL 1923824 (Colo.App. No. 02CA1585, Apr. 24, 2008)(rule of statutory construction providing that a specific provision prevails over a general applies when statutes conflict irreconcilably).

II.

We deny Father's request for attorney fees on appeal. See C.A.R. 88(d).

The orders of the magistrate and district court are vacated, and the case is remanded for the district court's ruling on mother's motion to modify.

Judge MARQUEZ and Judge ROY coneur.


author: LARRY JOPLIN, Chief Judge:

text:
    2003 OK CIV APP 59
    Veva (Gerdom) EDWARDS, Plaintiff/Appellant, v. Jonnise E. McKEE and Sullivan's Trucking Company, Defendants/Appellees.
    No. 97,661.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 23, 2003.

      C. Bradley Tuck, Tuck & Lukachick, P.C., Springfield, MO, and Marshall J. Wells, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, OK, for Appellant.
    Michael J. Masterson, Wilburn and Mas-terson, Tulsa, OK, for Appellees.
   Opinion by

LARRY JOPLIN, Chief Judge:

11 Plaintiff/Appellant Veva (Gerdom) Edwards (Plaintiff) seeks review of the trial court's order denying her motion for new trial after entry of a judgment on the jury's verdict denying her recovery against Defendants/Appellees Jonnise E. McKee and Sullivan Trucking Company (respectively, McKee and Sullivan, or, collectively, Defendants). In this appeal, Plaintiff asserts the trial court erred in instructing the jury pursuant to Kansas law.

2 In April 1995, Plaintiff, a passenger in the vehicle operated by Rudolph Schuetze and apparently then a resident of Indiana, suffered injury when a semi-trailer truck owned by Sullivan-an Oklahoma corporation with its principal place of business in Oklahoma-and operated by McKee-an Oklahoma resident-collided with the rear of Schuetze's vehicle at an intersection in Montgomery County, Kansas.

T3 Plaintiff brought suit in Kansas, alleging McKee's negligence and Sullivan's vicarious liability as McKee's employer. The parties conducted discovery in Kansas, and in anticipation of trial in Kansas, Plaintiff obtained one or more examinations by Kansas medical experts, who later testified by video deposition(s). However, the Kansas court dismissed Plaintiff's case without prejudice for failure to cooperate with discovery.

[ 4 In February 1999, Plaintiff-now alleging her residence in Missouri-commenced the instant suit in the District Court of Kay County, Oklahoma, the county of McKee's residence and Sullivan's principal place of business. At trial, the jury heard evidence arguably demonstrating Schuetze's comparative/contributory negligence.

15 At the conclusion of the evidence, Plaintiff sought instruction of the jury pursuant to the Oklahoma law of comparative negligence, ie., permitting recovery to a plaintiff adjudicated fifty percent (50%) comparatively negligent. See, 28 0.8. §§ 18, 14; Laubach v. Morgan, 1978 OK 5, ¶ 10, 588 P.2d 1071, 1073. Defendants sought instruction pursuant to the Kansas law of comparative negligence, which denies a plaintiff recovery if found 50% negligent, and permitting imputation of Schuetze's negligence to the Plaintiff. See, 60 K.S.A. § 2582; Wilson v. Kansas Power and Light Company, 232 Kan. 506, 657 P.2d 546, 553 (1983).

T6 Outside the presence of the jury, the trial court conducted a hearing to determine what law applied, whether Kansas law as the law of the place of the accident, or Oklahoma law as the law of the forum with a significant relationship to Defendants' domicile, residence and place of incorporation. Brickner v. Gooden, 1974 OK 91, 525 P.2d 632. On consideration of the arguments, the trial court held that Kansas law controlled, and instructed the jury accordingly.

T7 On consideration of the evidence, the jury returned its verdict, adjudicating Plaintiff and Defendants each 50% negligent, thereby denying Plaintiff recovery according to Kansas law. Plaintiff filed a motion for new trial, which the trial court denied, and Plaintiff appeals.

T8 Historically, Oklahoma law consistently adhered to the doctrine of "lex loci delicti," dictating that the law of the place of the wrong controlled. See, e.g., Cherokee Laboratories, Inc. v. Rogers, 1965 OK 8, 898 P.2d 520; Richey v. Cherokee Laboratories, Inc., 1973 OK 127, 515 P.2d 1377. In 1974, the Supreme Court observed in Brickner that many jurisdictions had discarded the rigid "lex loci delict?" doctrine in favor of the more flexible "significant relationship" analysis of the Restatement of Laws, Second, Conflicts of Law, §§ 6 and 145, and held:

[ The law of the place of the wrong is not necessarily the applicable law for all tort actions brought in the courts of this State.. ...
[ Als a general principle, ... the rights and liabilities of parties with respect to a particular issue in tort shall be determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties. The factors to be taken into account and to be evaluated according to their relative importance with respect to a particular issue, shall include:
(1) the place where the injury occurred,
(2) the place where the conduct causing the injury occurred,
(3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(4) the place where the relationship, if any, between the parties occurred.

Brickner, 1974 OK 91, ¶¶ 22, 23, 525 P.2d at 637.

19 "Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent, and non-deferential authority to reexamine a trial court's legal rulings." Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1083; Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct 1217, 1221, 118 L.Ed.2d 190 (1991). As a question of law, we review the trial court's decision on the choice of law issue de novo. See, e.g., Cavalier Oil Corp. v. Harnett, 564 A.2d 1137, 1141 (Del.1989).This brings us to the crux of the issue presented, and that is: Does the State of Oklahoma or the [State of Kansas] have the most significant relationship to the occurrence and the parties?" Brickner, 1974 OK 91, ¶ 25, 525 P.2d at 638.

€110 The uncontroverted evidence in the present case shows that at the time of both the accident and commencement of this suit, Plaintiff was a resident of neither Kansas nor Oklahoma. The accident occurred in Kansas, and the alleged negligence that caused Plaintiff's injuries was committed in Kansas. McKee was an individual domiciled in Oklahoma, and Sullivan was an Oklahoma corporation with its principal place of business located in Oklahoma.

I 11 In application of the Brickner factors, the trial court reasoned that the law of Kansas, as the place of the injury and commission of the alleged negligence, should apply. Application of Kansas law in the present case is entirely consistent with Brickner, where the Supreme Court clearly held that, in accord with the Restatement of Conflicts analysis, the law of the place of the injury applies unless some other state has a more significant relationship to the occurrence and the parties. 1974 OK 91, ¶ 23, 525 P.2d at 637. Application of Kansas law in the present case is also entirely consistent with the Restatement's specific recognition that:

In an action for a personal injury, the local law of the state where the injury occurred determines the rights and lHabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship....

Restatement of Conflicts, § 146. (Emphasis added.) As comment (d) to § 146 instructs:

In the majority of instances, the actor's conduct, which may consist either of action or non-action, and the personal injury will occur in the same state. In such instances, the local law of this state will usually be applied to determine most issues involving the tort.... This state will usually be the state of dominant interest, since the two principal elements of the tort, namely, conduct and injury, occurred within its territory. The state where the defendant's conduct occurs has the dominant interest in regulating it and in determining whether it is tortious in character. Similarly, the state where the injury occurs will, usually at least, have the dominant interest in determining whether the interest affected is entitled to legal protection.. ...

See also, Restatement of Conflicts, § 145, Comment d.

112 Upon de novo review of the present case, and applying the Brickner factors, we hold the State of Kansas, as the place of occurrence of the injury and the place of occurrence of the conduct causing the injury, has the most significant relationship with the occurrence and the parties, and the negligence law of Kansas controls. We consequently further hold the trial court did not err in instructing the jury according to Kansas law.

{13 The order of the trial court denying Plaintiff's motion for new trial is therefore AFFIRMED.

ADAMS, P.J., and BUETTNER, J., concur.

      . - "In all actions hereafter brought, whether arising before or after the effective date of this act, for negligence resulting in personal injuries or wrongful death, or injury to property, contributory negligence shall not bar a recovery, unless any negligence of the person so injured, damaged or killed, is of greater degree than any negligence of the person, firm or corporation causing such damage, or unless any negligence of the person so injured, damaged or killed, is of greater degree than the combined negligence of any persons, firms 'or corporations causing such dam- » age.

      . - '"'Where such contributory negligence is shown on the part of the person injured, damaged or killed, the amount of the recovery shall be diminished in proportion to such person's contributory negligence."

      . "[In an action based on comparative negligence, a plaintiff's percentage of negligence is to be compared with the aggregate negligence of all defendants combined, and if the plaintiff is less than 50 percent negligent he shall be entitled to recovery from each negligent defendant."

      . - That section provides in pertinent part:
      (a) The contributory negligence of any party in a civil action shall not bar such party or such party's legal representative from recovering damages for negligence resulting in death, personal injury, property damage or economic loss, if such party's negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action shall be diminished in proportion to the amount of negligence attributed to such party. If any such party is claiming damages for a decedent's wrongful death, the negligence of the decedent, if any, shall be imputed to such party.
      (d) Where the comparative negligence of the parties in any action is an issue and recovery is allowed against more than one party, each such party shall be liable for that portion of the total dollar amount awarded as damages to any claimant in the proportion that the amount of such party's causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is allowed.

      . The "fifty-percent rule" of 60 K.S.A. § 258a proscribes plaintiff's recovery where plaintiff's adjudicated comparative negligence, when com- - bined with a defendant's adjudicated comparative negligence, equals fifty percent or more:
      The jury compared the fault of the three parties and concluded KPL was 60% at fault while each of the brothers [plaintiff and two co-defendants] was 20% at fault. KPL has now been held not to have been at fault. This leaves only the fault of the two brothers to be compared-each of whom has already been determined by jury trial to have been equally at fault. A determination of equal fault is certainly wholly consistent with the undisputed facts-the two brothers, acting in concert, elevated the pipe into the power line. Under the totality of the circumstances herein, we conclude that each of the brothers is now legally held to have been 50% at fault. Under such circumstances, the judgment against defendant Bob Wilson must be reversed pursuant to K.S.A. 60-258a(a), sometimes referred to as the "50% rule." This conclusion renders all remaining issues of the appeal and cross appeal moot.
      The judgments herein are reversed and the case is remanded to the trial court with directions to enter judgment in favor of each defendant.

      . Accord, Donlann v. Macgurn, 203 Ariz. 380, 55 P.3d 74, 77 (App.2002); Tune v. Philip Morris Inc., 766 So.2d 350, 352 (Fla.App.2000); Callis v. Zilba, 136 Ohio App.3d 696, 737 N.E.2d 974, 975 (App.2000); Morris B. Chapman & Associates, Ltd. v. Kitzman, 302 Ill.App.3d 780, 236 Ill.Dec. 191, 706 N.E.2d 1065, 1071 (1999); State v. Whelchel, 97 Wash.App. 813, 988 P.2d 20, 23 (1999); Busse v. Pacific Cattle Feeding Fund No. 1, Ltd., 896 S.W.2d 807, 813 (Tx.App.1995).

      . - "[SJubject only to rare exceptions, the local law of the state where conduct and injury occurred will be applied to determine whether the actor satisfied minimum standards of acceptable conduct and whether the interest affected by the actor's conduct was entitled to legal protection."


author: JOE C. TAYLOR, Presiding Judge:

text:
    2003 OK CIV APP 69
    In the Matter of S.L., a deprived child. State of Oklahoma, Plaintiff/Appellee, v. Lonnie Johnson and Donnetta LittleJohn, Defendants/Appellants.
    No. 97,815.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    June 24, 2003.
    Approved for Publication by Order July 30, 2003.

      C. Wesley Lane II, District Attorney, Jane A. Brown, Assistant District Attorney, Oklahoma City, OK, for Plaintiff/Appellee.
    Sherry J. Neal, Oklahoma City, OK, for Defendant/Appellant Lonnie Johnson.
    Mary H. Tolbert, Crowe & Dunlevy, Oklahoma City, OK, and W. Ryan Hauser, Office of the Juvenile Public Defender, Oklahoma City, OK, for Child.
   Opinion by

JOE C. TAYLOR, Presiding Judge:

T1 Father, Lonnie Johnson, appeals a Judgment on a jury verdict terminating his parental rights to his minor child, S.L. The issues on appeal are (1) whether a prior Judgment not to terminate Father's parental rights has preclusive effect which bars the present termination proceedings, (Z2)whether the verdict of termination based on 10 0.8. 2001 § 7006-1.1(A)(12), (15) is supported by sufficient evidence, (8) whether State could seek termination on the alternative grounds of incarceration and extended foster care placement, and (4) whether the trial court abused its discretion in granting the State of Oklahoma's (State's) motion in limine regarding evidence of a prior termination proceeding. Having reviewed the record and applicable law, we affirm the judgment of termination.

12 State filed a petition seeking termination of Father's parental rights to S.L. due to Father's incarceration, § 7006-1.1(A)(12), and because S.L. had been in foster care for 15 of the 22 months preceding the filing of the petition, § 7006-1.1(A)(15). Following a trial, the jury determined Father's rights should be terminated. Father appeals, arguing claim and/or issue preclusion, insufficiency of the evidence, and evidentiary error.

CLAIM AND ISSUE PRECLUSION

T3 Father argues that the instant proceeding to terminate his parental rights is barred by the doctrines of claim preclusion (or res judicata) and issue preclusion (or collateral estoppel). S.L. was adjudicated deprived in 1997. State initially sought termination of Father's parental rights on the ground that he failed to correct the conditions that led to the deprived adjudication. In April 2000 a jury determined that Father's rights should not be terminated. At the time of this first trial, Father was incarcerated and S.L. had been in foster care for 15 of the preceding 22 months. Shortly after this first jury trial, the trial court ordered a new treatment plan, but held Father's compliance with the treatment plan in abeyance until his release from prison.

T4 In October 2001 State filed an amended petition, again seeking termination of Father's parental rights. The amended petition sought termination due to Father's incarceration, § 7006-1.1(A)(12), and because S.L. had been in foster care for 15 of the preceding 22 months, § 7006-1.1(A)(15). Father argues that the jury's determination in the first trial that his rights should not be terminated has preclusive effect and bars any further proceedings. In particular, Father argues that, because he was incarcerated at the time of the first trial and S.L. had been in foster care for 15 of the 22 months preceding the first trial, State is precluded from raising these two grounds for termination in the current proceeding. In effect, Father argues that, when State first sought termination of his parental rights, it was required to allege all grounds of termination available to it at the time. We disagree.

T5 Father's argument is based on the doctrines of claim and issue preclusion. The elements of claim preclusion are "1) an identity of subject matter, of the parties or their privies, of the capacity of the parties and of the cause of action; 2) the court which heard the original action must have been one of competent jurisdiction; and 83) the judgment rendered must have been a judgment on the merits of the ease and not upon purely technical grounds" Carris v. John R. Thomas & Assoc., P.C., 1995 OK 33, ¶ 10, 896 P.2d 522, 527. "Claim preclusion bars relit-igation by parties or their privies of issues which either were or could have been litigated in a prior action which resulted in a prior judgment on the merits." State ex rel. Moshe Tal v. City of Oklahoma City, 2002 OK 97, ¶ 20, 61 P.3d 234, 244. "Under the doctrine of issue preclusion ... once a court has decided an issue of fact or of law necessary to its judgment, the same parties or their privies may not relitigate that issue in a suit brought upon a different claim." National Diversified Business Serv., Inc. v. Corporate Fin'l Opportunities, Inc., 1997 OK 36, ¶ 11, 946 P.2d 662, 666.

16 We find that neither doctrine precludes the instant proceeding to terminate Father's rights. In In re H.J., 1993 OK CIV APP 72, 854 P.2d 381, State sought termination of a mother's parental rights; however, a jury determined that the mother's parental rights should not be terminated. About one and one-half years later, State again sought termination of the mother's parental rights, on the grounds that the mother failed to correct the conditions leading to the deprived adjudication and termination would be in the best interests of the minor children. According to the mother, much of State's evidence in the second trial was the same as the evidence in the first trial. Therefore, she argued that the second termination proceeding constituted double jeopardy and a collateral attack on the earlier judgment. The Court of Appeals disagreed. Noting that the purpose of juvenile proceedings is to promote the welfare of children, not to inflict punishment, the court rejected the mothers' double jeopardy argument. Id. at ¶¶ 13-14, 854 P.2d at 383. The Court also determined that the doctrines of collateral estoppel or res judicata were not applicable, because "(al trial court in juvenile matters retains continuing jurisdiction to protect the interests of its wards." Id. at n. 13, 854 P.2d at 383; see also In re T.M., 2000 OK CIV APP 65, ¶ 12, 6 P.3d 1087 ("the trial court's jurisdiction in the deprived action continues until either termination of parental rights or dismissal or the child's attaining majority"). The Court also determined that, because the later termination proceeding was based on the mother's failure to correct the conditions which led to the deprived adjudication, "[elvidence of the cumulative efforts of the mother since 1988 were relevant but significantly included new evidence occurring since the first trial." In re H.J., 1993 OK CIV APP 72 n. 18, 854 P.2d at 383. Cf. Ingram v. Ingram, 1991 OK CIV APP 62, ¶ 7, 814 P.2d 1052, 1054 (because the trial court has continuing jurisdiction over matters of child custody and visitation and best interests of minor children are not "fixed and immutable," second application for grandparental visitation was not barred).

17 - Courts in other jurisdictions also have declined to apply the doctrines of claim and issue preclusion in termination of parental rights proceedings. In In re Marcus W., 11 Neb.App. 313, 649 N.W.2d 899 (2002), the state sought to terminate a mother's parental rights because she had failed to protect her children and to make sufficient progress despite intervention. Although the mother's parental rights were terminated at the trial court level, the termination was reversed on appeal. The state again sought and received termination of the mother's parental rights, but on the grounds that she had a mental illness that was expected to continue for a prolonged indeterminate time. Although the state had raised the mother's mental illness in the first termination proceeding, it had abandoned it as a ground for termination. The mother asserted that res judicata and collateral estoppel barred the later proceeding. The Nebraska Court of Appeals rejected the res judicata argument, holding that "[allthough any proof of [the mother's] mental deficiency could have been presented in the first termination action, the operative facts for the two termination proceedings are different, and different proof would be required in each proceeding." Id. at 910. The court also rejected the mother's collateral estoppel argument, again because different proof was necessary in the two proceedings. Id. at 911.

18 The mother in the Nebraska case further argued that, because the state was aware of her mental deficiency at the time of the first hearing, there was no change of circumstances and the second proceeding was barred. The court rejected this argument, finding as follows:

The instant case does not appear to be a situation where the State lost the first action and immediately moved to terminate upon a different ground. The grounds for termination ... for neglect are frequently proved, at least in part, by numerous minor acts over a period of time. The manifestation of the mental illness or deficiency required to justify termination ... is also frequently observed over a long period of time. At what point a sufficient number of events to evidence the grounds for termination under these subdivisions has been met is a matter of judgment, but by their very nature, if these grounds truly exist, the State's case will get stronger as time passes. An action which is perhaps prematurely brought should not function to keep the child in a bad situation for his or her entire childhood. To hold otherwise would pervert our paramount concern of protecting the interests of the child.

Id. See also In re S.B., 305 Ill.App.3d 813, 239 Ill.Dec. 219, 713 N.E.2d 750 (1999) (sue-cessive termination proceedings may be conducted); In re Jesus "II", 249 A.D.2d 846, 672 N.Y.S.2d 485 (Supreme Ct., App. Div., 3d Dept.1998) (proceeding not barred by res judicata or collateral estoppel where successive proceedings involved different time periods and different service plans); In re A.S., 12 Kan.App.2d 594, 752 P.2d 705 (1988) (after proceeding did not result in termination, the case and the issue of unfitness remained open for future review and continued course of conduct would justify review hearing); People In Interest of J.R., 711 P.2d 701 (Colo.Ct.App.1985) (policy of limiting litigation should not be applied so as to deprive state from seeking a resolution that will best serve the interests of children).

19 Here, SL. was adjudicated deprived in 1997. After waiting approximately three years for correction of the conditions that led to the deprived adjudication, State attempted to terminate the parental rights of Father and S.L.'s mother. The jury determined that the rights should not be terminated. However, this determination did not preclude State from again seeking termination, particularly on different grounds. As noted by the Nebraska court, a premature action to terminate Father's parental rights should not function to keep S.L. in a bad situation for her entire childhood.

(10 We also note the issues and proof in the first termination proceeding were different than the issues and proof in this proceeding. Here, instead of proving that Father failed to correct the conditions that led to the deprived status, State presented evidence that termination was in S.L.'s best interest because of Father's incarceration and the duration of foster care. Moreover, although incarceration and duration of foster care could have served as grounds for termination in the first proceeding, the detrimental effect on S.L. of separation from Father due to his incarceration, and her placement in foster care with the same family, including her biological sister, for several years was observable over a long period of time and is stronger support for termination at this point. Thus, we find the trial court did not err in rejecting Father's arguments of claim and issue preclusion.

PARENTAL RIGHTS TERMINATION BASED ON $ 7006-1.1(A)(12)

T11 Father also argues the evidence was insufficient to support the jury verdict. In termination of parental rights cases, we canvass the record to determine whether the lower court's judgment rests on clear and convincing proof. In re S.B.C., 2002 OK 83, ¶ 6, 64 P.3d 1080, 1082. "Clear- and-convincing evidence is defined as that degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established." Id. at n. 9, 64 P.3d at 1082. We find that State presented clear and convincing evidence to support termination.

{12 Keeping in mind that "the paramount consideration in proceedings concerning termination of parental rights shall be the health, safety or welfare and best interests of the child," a court may terminate a parent's rights with regard to a deprived child in the following situations:

12. A finding that all of the following exist:
a. the child has been adjudicated deprived, and
b. custody of the child has been placed outside the home of a natural or adoptive parent, guardian or extended family member, and
c. the parent whose rights are sought to be terminated has been incarcerated, and
d. the continuation of parental rights would result in harm to the child based on consideration of the following factors, among others: the duration of incarceration and its detrimental effect on the parent-child relationship; any previous incarcerations; any history of criminal behavior, including erimes against children; the age of the child; the evidence of abuse or neglect of the child or siblings of the child by the parent; and the current relationship between the parent and the child and the manner in which the parent has exercised parental rights and duties in the past, and
e. termination of parental rights is in the best interests of the child.

10 0.8.2001 § 7006-1.1(A)(12).

T13 It is undisputed that State presented evidence to meet the first three conditions of § 7006-1.1(A)(12) for termination of Father's parental rights due to incarceration-S.L. had been adjudicated deprived, she had been placed in a foster home outside the home of a natural or adoptive parent, guardian, or extended family member, and Father was incarcerated at the time of trial. State also presented evidence that continuation of Father's parental rights would result in harm to S.L., as set forth in the factors listed in § 7006-1.1(A)(12), as noted below:

T14 Duration of incarceration and its detrimental effect on the parent/child relationship: Father was incarcerated in the Fall of 1997, when S.L. was approximately two years old. Father was convicted of robbery after a former conviction and received a ten-year sentence. At the time of trial, in April 2002, Father was still incarcerated, although he predicted he would be released in December 2002. During this period of incarceration, Father has not seen S.L. Thus, at the time of trial, Father had been incarcerated and had not seen S.L. for nearly all of her life. Moreover, even accepting as true Father's prediction that he would be released from prison in December 2002, Father would have been incarcerated at that time for over five years of S.L.'s short life.

T15 Previous incarcerations and history of criminal behavior, including crimes against children. Although Father has no history of crimes against children, he had previously been incarcerated for four months for burglary. Further, the sentence for which he was incarcerated at the time of trial was based in part on the former conviction. Father also admitted that, after the first crime, he made a decision to commit another crime.

116 Evidence of Father's abuse or neglect of SL. or her siblings. Although Father did not have custody of S.L., he testified he visited her every day at her mother's home. When S.L. was approximately nine months old, she was diagnosed as "failure to thrive" and removed from her mother's home. Yet, there is no evidence that Father ever recognized the failure to thrive condition. Indeed, he testified at trial that S.L. should be with her mother because the mother would not hurt S.L. and there was never anything wrong with S.L. Finally, although Father testified that he helped S.L.'s mother with food and clothing for S.L. and the two other children that he has with S.L.'s mother, he has never paid child support for any of his children.

T17 The current relationship between Father and SL. and the manner in which the parent has exercised parental rights and duties in the past. SL. was removed from her mother's home when she was less than one year old. According to Father's testimony, he visited S.L. every day in her mother's home and continued to visit her monthly while she was in foster care. However, visitation completely ceased in the fall of 1997 when Father was incarcerated, and Father has not seen S.L. since that time. Although Father testified that, since the first trial, he has attempted to send cards and letters to S.L. through the DHS case worker, he did not send any cards or letters to S.L. before the first trial, ie., for approximately two and one-half years. In fact, he admitted he made no efforts, while incarcerated, to contact S.L. prior to the first trial, or to continue a relationship with S.L. because there was no way for him to contact her. Although Father testified he unsuccessfully requested visitation with S.L. in prison, there is nothing in the record to suggest that, since his incarceration, Father has ever made any formal requests to the court for visitation or telephone contact with S.L. It is clear from this evidence that, even if we accept the inherent difficulty of maintaining a relationship with S.L., Father has not adequately pursued a relationship. Moreover, as noted above, although Father helped S.L.'s mother before his incarceration, he has never paid child support for S.L.

118 The best interests of S.L. Finally, there is clear and convincing evidence in the record that termination of Father's parental rights would be in S.L.'s best interests. SL. has been in the same foster home since 1997. Additionally, S.L.'s biological sister, D.L., has been in the same foster home. At the time of trial, the foster parents were in the process of adopting D.L. and expressed a desire to adopt S.L. As noted by the caseworker, S.L. has bonded with her foster family, is very close to D.L., and knows no other family as her own. Both the DHS casework er and the CASA worker testified that it would be in S.L..'s best interests to remain in the foster care placement and to have Father's parental rights terminated.

119 State presented clear and convincing evidence of all of the factors listed in § 7006-1.1(A)(12). Significantly, State has presented evidence that termination of Father's parental rights is in S.L.'s best interests. Therefore, we will not disturb termination of Father's parental rights based on § 7006-1.1(A)(12).

PARENTAL RIGHTS TERMINATION PURSUANT TO $ 7006-1.1(A)(15)

120 State also sought termination of Father's parental rights pursuant to § 7006-1.1(A)(15). - Bearing in mind that "the paramount consideration in proceedings concerning termination of parental rights shall be the health, safety or welfare and best interests of the child," § 7006-1.1(15) allows termination of parental rights when "a] child has been placed in foster care by the Department of Human Services for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition." It is undisputed that, at the time of the filing of the petition, S.L. had been in foster care for 15 of the most recent 22 months.

{21 Father argues that "the trial court erred in applying § T7006-1.1(A)(15) where termination proceedings are predicated solely on the father's incarceration under l.. § 7006-1.1(A)(12)." In particular, Father argues that § 7006-1.1(A)(12) is a specific statute that controls over the more general § 7006-1.1(A)(15), and the former statute "should govern in determining the grounds for termination of parental rights when there is a conflict as is the case when a parent is incarcerated for a much longer period than 15 months." In effect, Father argues that § 7006-1.1(A)(15) should not apply to someone who is incarcerated. We disagree.

122 Under the cireumstances of this case, we disagree with Father's basic premise that § 7006-1.1(A)(12) and § 7006-1.1(A)(15) conflict and that State, therefore, could not alternatively seek termination under both sections. Here, the fifteen months of foster care admittedly coincided with Father's incarceration. - Nevertheless, Father admitted he was incarcerated because, after having already committed one crime for which he had been incarcerated, he made a decision to commit another crime. Father did not deny that he committed the crime that led to his incarceration. S.L.'s placement in foster care for 15 of the preceding 22 months was, therefore, in large part due to Father's voluntary act that led to incarceration. Therefore, State was entitled to pursue termination on either ground.

T23 Moreover, pursuant to § 7006-1.1(A)(15), State could not merely show the fact of foster care for 15 of the preceding 22 months. State also had to prove, by clear and convincing evidence, that termination is in S.L.'s best interest. In re T.M., 2000 OK CIV APP 65, ¶ 15, 6 P.3d 1087, 1093. State met this burden.

"The paramount consideration in all proceedings concerning a child alleged or found to be deprived is the health and safety and the best interests of the child." 10 0.9$.2001 § 7001-L.2(B). The purpose of the laws relating to deprived children is, in part, to "[slecure for each such child, the permanency, care and guidance as will best serve the spiritual, emotional, mental and physical health, safety and welfare of the child." 10 O0.8.2001 § 7001-1.2(B)(M). "[The 'plain purpose' of § 7006-1.1(A)(15) . is to protect children from extended foster care." In re B.C., 2000 OK CIV APP 130, ¶ 33, 15 P.3d 8 (internal quotation marks omitted).

{24 S.L. has been in state custody for nearly her entire life. At the time of trial, she had lived with the same foster family for approximately five years. The foster family also has had custody of S.L.'s sister D.L.; the foster family was in the process of adopting D.L. and expressed the desire to also adopt S.L. It is clear from the evidence that S.L. has bonded with the foster family and is extremely close to her sister. The foster family has provided a stable, safe, healthy home for S.L. and has met her emotional, mental, and physical health and welfare. Thus, State presented clear and convincing evidence that it is in S.L.'s best interest for Father's rights to be terminated pursuant to § T7006-1.1(A)(15).

EVIDENTIARY RULING

$25 In his final argument, Father argues that the trial court erred in granting State's motion in limine to exclude evidence regarding the jury verdict from the first trial in 2000. Even if the trial court erred in granting the motion in limine, the trial in 2000 was mentioned at least 15 different times during the trial in the instant case. Although many of the references were to termination of S.L.'s mother's parental rights, Father's counsel elicited specific testimony from the DHS caseworker regarding the jury's decision not to terminate his parental rights in 2000. In relevant part, the DHS caseworker testified as follows:

Q.... You entered the case a month after a trial with a jury where his rights were not terminated. They knew he was in prison, isn't that right?
A. Correct.
Q. And his rights were not terminated and yet a month after that happened, you're treating him like his rights are going to be terminated again based on his incarceration; isn't that right?
A. Based on the petition.
Q. Do you not think a jury's verdict is the final order?
A. I would believe so, yes.

It is clear from reading the trial transcript that the jury was fully advised of State's previous attempt to terminate the parental rights of Father and S.L.'s mother. Therefore, it cannot be said that Father suffered any prejudice as a result of the trial court's ruling on the motion in limine.

CONCLUSION

126 The prior determination that Father's parental rights should not be terminated does not preclude the present termination proceedings. The determination that Father's rights should be terminated pursuant to § 7006-1.1(A)(12) is supported by clear and convincing evidence. Sections 7006-1.1(A)(12) and 7006-1.1(A)(15) do not conflict, under the cireumstances, and State was entitled to seek termination on the alternative grounds of incarceration and extended foster care placement. Because the jury was made fully aware of the previous determination that Father's rights should not be terminated, Father was not prejudiced by the trial court's ruling on the motion in limine regarding evidence of the previous trial. The termination of Father's parental rights is therefore affirmed.

127 AFFIRMED.

STUBBLEFIELD, J., and GOODMAN, J. (sitting by designation), concur.

JERRY L. GOODMAN, Acting Presiding Judge.

      . State also sought termination of the parental rights of S.L.'s mother. The jury terminated her parental rights. Although Mother joined in the petition in error in this appeal, she did not file a brief on appeal. Therefore, we consider her appeal abandoned. Osburn v. Bendix Home Systems, Inc., 1980 OK 86, ¶ 4 and n. 2, 613 P.2d 445, 448.

      . We note that, through no fault of Father, S.L. did not receive the cards and letters, because the DHS caseworker chose not to give them to S.L. Although we do not condone the caseworker's action of not forwarding the cards or letters to S.L. or, at the very least, presenting them to a counselor or the court to decide whether it would be in S.L.'s best interest to receive them, it is clear from the record that Father, through his own actions, had lost significant contact with S.L. between the time of his incarceration and the first trial.

      . S.L. and D.L. have the same mother, whose rights to D.L. were terminated in the first trial.

      . Even if we were to accept Father's argument and not apply § 7006-1.1(A)(15), State presented clear and convincing evidence of all the factors listed in § 7006-1.1(A)(12). Therefore, termination of Father's rights under § 7006-1.1(A)(12) is appropriate, without consideration of § 7006-1.1(A)(15).

      . This is not the type of situation envisioned by the Court of Civil Appeals in In re C.R.T., 2003 OK CIV APP 29, 66 P.3d 1004, where extended foster care is not due to the parent's conduct, e.g., where the parent is involuntarily absent due to something out of his control, such as being held as a prisoner of war. In the case at bar, Father's incarceration, and indirectly S.L.'s placement in extended foster care, were admittedly due to Father's own culpable conduct.


author: ADAMS, Presiding Judge.

text:
    2003 OK CIV APP 64
    MONKEY ISLAND DEVELOPMENT AUTHORITY, Plaintiff/Appellee, v. Paul STATEN, Defendant/Appellant.
    No. 97,519.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    July 2, 2003.

      David Crutchfield, Monkey Island, OK, for Plaintiff/Appellee.
    Carl Hughes, Kyle Goodwin, Hughes Artus & Goodwin, and James D. Kallstrom, Hart-zog Conger Cason & Neville, Oklahoma City, OK, for Defendant/Appellant.
   OPINION

ADAMS, Presiding Judge.

T1 Paul Staten appeals a judgment entered in favor of Monkey Island Development Authority (MIDA) following consolidation of its action for forcible entry and detainer with its action for fraud, conversion, and breach of various provisions of an FBO Agreement, a - Management Agreement, and a Store Agreement (collectively, the Contract). The trial judge found the Contract, under which Staten had for six years operated facilities at the Grand Lake Airport, invalid. The trial court further found that the MIDA board voting to accept the 1996 contract with Staten had lacked a sufficient quorum, had violated the Open Meeting Act, (as applicable to this matter, 25 O.8.8upp.1993 § 804, et seq.), and could not, because of those violations, subsequently ratify the contract or effectively amend it. The trial judge found there was no landlord-tenant relationship, and that issues of whether the contract had been breached by Staten were moot. Staten was ordered to be "evicted."

T2 We conclude that the record does not support a finding of any violation of the Open Meeting Act or infirmity in the approval of the Contract. As a result of finding the Contract invalid, the judgment did not address defenses posed under the Contract or the effect of applicable law. As this matter was fully tried to the court, the matter is remanded for consideration, based upon the record, of the rights and duties of the parties under the Contract and any alleged breaches and the defenses available.

13 MIDA argued, in the alternative, that Staten either had breached the Contract or that he held its premises at the Grand Lake Airport illegally because the Contract was invalid. Staten contended that the Contract was valid, that terms of a document, entitled "Common Provisions," were incorporated by reference into the agreements forming the Contract, and that any alleged defaults or breaches were, under a proper reading of the text, either excused or did not constitute defaults or breaches.

FACTS

T4 MIDA was established with a Trust Indenture (Trust) filed with the Oklahoma Secretary of State on March 17, 1992. The beneficiary of the Trust was Delaware County, Oklahoma, and the original trustees named were Edwin M. DeCoursey, Jr., Eugene M. Gregg, and Don A. Davis, all of whom accepted their positions.

15 MIDA, by way of trustee Gregg and Robert H. Garwood as successor of trustee DeCoursey, and the trust beneficiary approved a "First Amendment to Trust Indenture" (First Amendment) in April of 1995. The First Amendment amended Article VI(1) of the Trust by increasing the number of trustees from the original 3 to 5. The First Amendment identified individuals for those 5 positions, namely Gregg, Davis, and DeCour-sey plus James Orwig and John G. Wilcox, and was approved by Delaware County's Board of County Commissioners.

T6 A Notice of Meeting and Agenda for a special meeting of MIDA on March 2, 1996, posted on February 28, 1996, lists as agenda items approval of minutes from an April 12, 1995 meeting and "[clonsideration and discussion of contracts for fixed base operator of Shangri-La Airport, Airport management and lease of related property, including Store Agreement, FBO Agreement and Airport Management." Two trustees, Gregg and Garwood, voted to approve the Contract at the special meeting on March 2, 1996. An amendment to the store agreement portion of the Contract was entered into, according to its text, as of July 1, 1996.

T7 A "Revised First Amendment to Trust Indenture" (Revision) in October of 1996, recites that MIDA "unsuccessfully undertook to add two additional trustees to their number" by way of the First Amendment, "which trustee positions were never filled." The Revision then asked the Delaware County Board of County Commissioners to revoke a resolution approving and accepting the First Amendment, which the Board did on October 7, 1996.

ANALYSIS

Quorum

T8 Section 178 of Title 60 states:

C. Any instrument or will creating a trust which is not within the scope of subsection B of this section shall provide for the appointment of a minimum of three trustees, their succession, powers, duties, term, manner of removal and compensation subject to the provisions of subsection E of this section, and in all such respects the terms of said instrument or will shall be controlling. If the instrument or will makes no provision in regard to any of the foregoing, then the general laws of the state shall control as to the omissions.

MIDA argues, as it did in the trial court, that a quorum is a majority of the members of a public body. While this is generally true, we need not resort to general statements or outside sources for a definition of a quorum because this term is specifically defined in the Trust. Article VIQ) of the Trust provides, in relevant part, that "[a] quorum shall consist of two (2) or more Trustees qualified to act."

T9 Although MIDA at first denied that one of its trustees was, in fact, a trustee at the time the Contract was signed, the record shows that trustee's status was ultimately established. The record clearly shows that notice was posted for the special meeting on March 2, 1996, and that two trustees were present at the special meeting and had voted to approve the Contract. Therefore, according to the express terms of the Trust, a quorum was present. The trial court's finding that a quorum was lacking on the day the Contract was approved is therefore not supported in the record and is in error.

Qualification of Trustees

110 Our inquiry into the validity of the Contract does not end with the determination regarding the quantum necessary for a quorum. Article VI(2) of the Trust also provides: "All actions by the Trustees pursuant to the provisions of this Trust Indenture shall be approved by the affirmative vote of at least a majority of the Trustees qualified to act as such under the provisions of this Trust - Indenture." (Emphasis - added.) While two may be a quorum under the express provisions of the Trust, the number required for a majority must be separately considered. Therefore, although a quorum may have been present and have voted to accept the Contract, the essential questions presented to us, as they were to the trial court, are who were the trustees "qualified to act" and what quantum of trustee participation was required for valid approval under the Trust's provisions?

1 11 At trial, the center of this controversy was the effect of the First Amendment and the subsequent Revision to the Trust. As he does here, Staten argued that "Trustees qualified to act" must be construed with reference to 60 0.8.2001 § 178(A), which states, in pertinent part:

Every person hereafter becoming a trustee of a public trust first shall take the oath of office required of an elected public officer ... The oaths of office shall be administered by any person authorized to administer oaths in the State of Oklahoma, and shall be filed ... in the office of the county clerk in a trust wherein any county is beneficiary. (Emphasis added.)

Oklahoma law clearly required that the trustees of this public trust subscribe to their oath of office in order to be qualified to act. As Oklahoma Constitution Art. 15, § 1 instructs, all public officers must take and subscribe to the oath there given "before entering upon the duties of their offices," and this requirement also clearly is stated in 51 0.98.2001 § 2, which states, in pertinent part, that "[elvery state, county, township, city, town, school district, or other officer under the laws of the state, and every deputy or assistant of any such officer," shall take the oath "before entering upon the duties of his office."

12 There was no evidence presented that two of the persons named in the First Amendment had ever acted as trustees, or took the oath required to serve as trustees. Therefore they were not "qualified to act" as trustees of MIDA, and the number of trustees "qualified to act" was never more than three. Consequently, the affirmative vote of two qualified trustees was sufficient to approve the Contract, and the trial court's conclusion that the Contract was never approved by the trustees was error.

Open Meeting Act

113 MIDA cites 25 0.8.1991 $ 304(2) as supporting its contention that the signing of the FBO, Management and Store agreements on March 1, 1996, by only one MIDA trustee and the approval of the Contract at the March 2, 1996 Special Meeting by two trustees were in violation of the Open Meeting Act. Section 304(2) states that " 'Meeting' means the conduct of business of a public body by a majority of its members being personally together or, as authorized by Section 307.1 of this title, together pursuant to a teleconference." (Emphasis added.) Applying this definition, it is not a violation of the Open Meeting Act for less than a majority of a public body to meet. Therefore, even under MIDA's theory of the membership, there is no violation of the Open Meeting Act on March 1, 1996, or on March 2, 1996, because there was no majority present on either date. Without a majority, there could be no "meeting" under the Act and no violation.

T14 We have concluded that majority of the members were present on March 2, 1996, and accordingly, those proceedings were required to comply with the provisions of the Open Meeting Act. However, the record is clear that the meeting was properly called and the appropriate notices were posted in a timely manner. The Open Meeting Act was not violated by the March 2, 1996 meeting.

The Contract

T15 Finally, we note that the trial court found that the Contract "consisted of the Store Agreement, FBO Agreement and Management Agreement." At trial, Staten argued that the Contract also included a document "Common Provisions." There is no dispute that the FBO Agreement, Store Agreement and Management Agreement all state "The 'Common Provisions, dated as of March 1, 1996, attached hereto are incorporated herein by reference."

116 At trial, MIDA's representative admitted he found a document entitled "COMMON PROVISIONS Dated as of March 1, 1996" (emphasis in original) in its files but it was not physically attached to any of the three underlying agreements. MIDA argued that the "Common Provisions" document admitted as Defendant's Exhibit 1 was not a part of the Contract, citing that it was not separately signed. MIDA did not propose that another "Common Provisions" document than the one admitted into evidence at trial was the one referenced in the agreement, only that it did not have separate signatures. MIDA cites no authority supporting the proposition that a lack of separate signature on such a contract attachment, which has been identified and explicitly incorporated, somehow nullifies and makes ineffectual the contractual attachment.

T17 Staten identified the exhibit as being the "Common Provisions" referred to and incorporated into the Contract, and its pages are consecutively numbered to match the pages of the agreements which were signed. The trial court's findings are susceptible of the interpretation that it found the "Common Provisions" were not a part of the "Contract." Such a finding has no support in the evidence and must be reversed. Upon remand, the interpretation of the Contract must include the text contained in the "Common Provisions" because those provisions are incorporated by reference into the three underlying agreements.

CONCLUSION

18 Because it found the Contract to be invalid, the trial court did not address the other issues raised by the parties, and it would be inappropriate for us to do so before the trial court has made its decision on those questions. The trial court's judgment is reversed, and the case is remanded for a trial court decision addressing those additional issues upon the evidence presented at trial.

REVERSED AND REMANDED.

JOPLIN, C.J., and BUETTNER, J., coneur.

      . Here, FBO is an abbreviation for "fixed based operation," and refers to the buildings, hangars, ramps, fixtures, appurtenances and real estate at the airport.

      . Section B, which is not at issue here, concerns trusts naming the State of Oklahoma as the beneficiary.

      . Because, according to this record, neither person named acted or attempted to act as a trustee under color of authority, no issue of "officer defacto" was presented. See, e.g., Ajax Contractors, Inc. v. Myatt, 1967 OK 19, 424 P.2d 30.

      . The trial court's correct conclusion that the signing of the agreements by only one of the trustees was a not valid approval is of no consequence. - Staten did not contend that action had any effect, and the Contract was approved properly at the meeting the next day.


author: CAROL M. HANSEN, Judge.

text:
    2003 OK CIV APP 75
    The STATE of Oklahoma, ex rel. OKLAHOMA STATE EMPLOYMENT COMMISSION, Plaintiff/Appellant, v. Darrell K. THOMPSON, Defendant/Appellee.
    No. 99,286.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    July 11, 2003.

      David T. Hopper, Oklahoma City, OK, for Plaintif{/ Appellant,
   Opinion by

CAROL M. HANSEN, Judge.

{1 Plaintiff/Appellant, Oklahoma Employment Security Commission (Commission), brings this appeal from the trial court's order granting Defendant/Appellee Darrell K. Thompson's (Thompson) Motion to Dismiss. The appeal is submitted without appellate briefing in accordance with the accelerated procedure under Rule 1.36, Oklahoma Supreme Court Rules, 12 0.98.2001, Ch.15, App. We hold the trial court erred in dismissing the action as barred by limitation.

T2 Commission filed its Petition initiating this action on February 6, 2008. The Petition alleged Thompson was indebted to Commission in the amount of $968.82 by reason of receiving unemployment benefits "to which he or she (sic) was not entitled, by reason of a false statement or representation or a failure to disclose a material fact on the part of [Thompson]." More specifically, Commission alleged Thompson drew unemployment benefits for the weeks ending August 15, August 29, and September 5, all in 1987, although he was working during the claimed periods. The Petition further states Commission made an administrative determination of overpayment on April 28, 1988, and that Thompson was mailed a copy of the determination with advice of his appeal rights. Demand for payment had been made, on some unspecified date, but no payment was made.

T3 On March 4, 2008 Thompson moved to dismiss the action "because the Petition fails to state a claim for which relief can be granted as [Commission's] claim is barred by the Statute of Limitations in 12 0.8. § 95." In its Response to Defendant's Motion to Dismiss, Commission argued § 95 is inapplicable against the State "when it is acting in its sovereign capacity to enforce a public right", citing State of Oklahoma ex rel. Jan Eric Cartwright v. Tidmore, 1983 OK 116, 674 P.2d 14. The trial court granted Thompson's Motion to Dismiss without specific findings or other explanation. Commission brings this appeal from that order.

{4 Commission contends here the trial court "ignored the law" in dismissing its action. We agree. In Tidmore, cited by Commission in support of its opposition to the Motion to Dismiss, the Supreme Court noted, "[wle have long-recognized the general rule that statutes of limitations do not operate against the state when it is acting in its sovereign capacity to enforce a public right." Tidmore, at 15. The Tidmore Court then explained the "test is whether the right is such as to affect the public generally or merely affects a class of individuals."

15 The Oklahoma Supreme Court addressed a question similar to the one before us in State ex rel. Oklahoma Employment Security Commission v. Eddie, 195 Okla. 26, 154 P.2d 763 (1944). There, in an action filed in 1942, Commission sought to recover employer contributions to the unemployment fund due in 1936 and 1937. The trial court, akin to what the trial court did here, held the action was barred by limitation pursuant to 12 0.S8.1941 § 95 and Commission appealed.

$6 In determining if the suit was brought in the State's sovereign capacity, the Eddie Court looked to the Legislature's stated purpose for enacting the unemployment compensation law. The statutory statement of public policy on which the Court in Eddie relied was substantially the same as the following statement contained in 40 0.S.1981 § 1-108:

. The Legislature, therefore declares that in its considered judgment the public good, and the gemeral welfare of the citizens of this state require the enactment of this measure, under the police power of the state for the establishment and maintenance of free public employment offices and for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own. (Emphasis added).

7 The Eddie Court noted it was unaware of any authority holding that a state acting in the exercise of its police power acted other than in a sovereign capacity. The Court concluded Commission, in seeking to recover the payment of overdue contributions, was acting in a sovereign capacity, and the general statute of limitations in 12 0.S.1941 § 95 thus did not apply.

T8 The "unemployment reserves" to be used for the benefit of unemployed persons, recognized in Eddie as being for the general welfare of the citizens of this State, are as much implicated here as there. Failure to recoup funds inappropriately or improperly paid as benefits results in lessened reserves to provide for those who are legally entitled and in need of assistance. The Legislature has recognized this need, and has provided authority for recovery and recoupment from:

Any individual who, by reason of a false statement or representation or failure to disclose a material fact ..., has received any sum as benefits to which he or she was not entitled ... 40 0.$.1981 § 2-613.

T9 Public policy requires that every reasonable presumption favor government immunity from limitation. Oklakoma City Municipal Improvement Authority v. HTB, Inc., 1988 OK 149, 769 P.2d 131. The Court of Civil Appeals also recognized this principle in State ex rel. Oklahoma Student Loan Authority v. Akers, 1995 OK CIV APP 75, 900 P.2d 468, and held, at 470:

..., we find that when [Oklahoma Student Loan Authority] seeks to enforce student loan obligations, it does so as an agent of the state to collect public trust funds, and as a trustee of public funds, OSL operates to enforce public rights against which the statutes of limitations or laches pose no bar.

T 10 The well established premise for the rules upon which we base our determination here was set out by our Supreme Court in White v. State, 50 Okla. 97, 150 P. 716 (1915). The Court, at 718, restated "the great principle of public policy that the public interest shall not be prejudiced by the negligence of public officers to whose care they are consigned." Our Courts have decided the greater good is served by protecting the public interest when the state acts in its sovereign capacity.

T11 The trial court erred when it dismissed Commission's Petition. Its order is accordingly REVERSED and this matter is REMANDED to the trial court for further proceedings consistent with this opinion.

JONES, J., and MITCHELL, P.J., concur.

      . Thompson failed to file a Response to the Petition in Error as required by Supreme Court Rule 1.36(e). Normally, where there is such a default, we would not search the record for matters that support the dismissal, See, Broken Arrow Partnership v. PBC Investment Opportunities, Inc., 2001 OK CIV APP 118, 33 P.3d 694, but the record here is so limited such sanction is of no consequence.

      . Although neither defense was raised here, the Court of Civil Appeals found laches and estoppel also inapplicable to bar the Student Loan Authority's action to recover the loan obligation.

      . By our decision here we do not intend to endorse or condone the inexplicable delay by Commission in seeking enforcement of its re-coupment determination. The law is clear, however inequitable it may seem to be.