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DANI v. MILLER2016 OK 35Case Number: 114482Decided: 03/29/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2016 OK 35, __ P.3d __

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

ROBERT N. DANI, as a resident beneficiary taxpayer claimant of the STATE OF OKLAHOMA UNIFORM UNCLAIMED PROPERTY ACT TRUST and for the benefit of all the other 938,021 (more or less) resident and non-resident beneficiary claimants of the Trust, Plaintiff/Appellant,v.(1) KEN MILLER, in his official capacity as TREASURER OF THE STATE OF OKLAHOMA and TRUSTEE OF THE STATE'S UNIFORM UNCLAIMED PROPERTY ACT TRUST; and (2) STATE OF OKLAHOMA; and (3) JOHN DOE and/or MARY DOE, Attorneys for the State of Oklahoma and/or State officials, etc. for legal malpractice in their advice that the Uniform Unclaimed Property Act Trust was lawful and constitutional in its use of private trust funds for the State of Oklahoma profits, Defendants/Appellees.
ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTYHONORABLE THOMAS E. PRINCEDISTRICT JUDGE
¶0 An owner of unclaimed property filed suit in the District Court of Oklahoma County seeking relief, including damages, declaratory relief, and injunctive relief challenging the constitutionality and administration of the Oklahoma Uniform Unclaimed Property Act, 60 O.S. §§ 651-688. The State Treasurer in his official capacity, and other defendants, moved to dismiss the petition for failure to state a claim for which relief could be grated pursuant to 12 O.S. 2011 § 2012(B)(6). The property owner moved for summary judgment. The trial court granted the defendants' motion to dismiss and denied the property owner's motion for summary judgment, and the property owner appealed.
ORDER OF THE TRIAL COURT IS AFFIRMED
Jerry R. Fent, Oklahoma City, OK, for Plaintiff/Appellant.Ted Pool, Oklahoma City, OK, for Plaintiff/Appellant.Jared B. Haines, Assistant Solicitor General, and Mithun S. Mansinghani, Deputy Solicitor General, Oklahoma City, OK, for Defendants/Appellees Ken Miller, State Treasurer of Oklahoma, and the State of Oklahoma.
COMBS, V.C.J.:
¶1 The question presented to this Court is whether the trial court properly granted Defendants/Appellees' motion to dismiss the action for failure to state claims upon which relief may be granted, and denied Plaintiff/Appellant's motion for summary judgment. We hold in the affirmative, and affirm the trial court's order.
FACTS AND PROCEDURAL HISTORY
¶2 Plaintiff /Appellant Robert N. Dani (Appellant) is an Oklahoma resident and taxpayer. Certain property belonging to Appellant was handed over to the State Treasurer pursuant to the Uniform Unclaimed Property Act (UUPA), 60 O.S. §§ 651-688, because it was presumed abandoned. This property consisted of $19.56, received in 2004 and submitted by Chevron/Texaco, as well as $150.00, received in 2013 and submitted by Office Depot, Inc. Appellant filed a claim for this property on or about January 16, 2014. His claim was approved, and a check was issued to Appellant for $169.56 on April 17, 2014.
¶3 On June 22, 2015, Appellant filed suit in Oklahoma County District Court against Defendants/Appellees (collectively, "State"), seeking damages, declaratory relief, and injunctive relief, concerning the constitutionality and administration of the UUPA. Appellant's first causes of action center on the alleged creation of a trust by the UUPA, and he argues: 1) the UUPA is a "public trust," having the State Treasurer as trustee and private parties such as Appellant as the beneficiaries; 2) UUPA provisions that require transfer of funds not held as reserve in the UUPA's Unclaimed Property Fund to the State of Oklahoma's General Revenue Fund violate trust obligations; and 3) the UUPA's requirement that interest and income accruing in the Unclaimed Property Fund's principal be paid to the general revenue fund violates trust obligations.
¶4 Appellant also asserts the UUPA is a "Ponzi scheme". He then sets out causes of action detailing alleged violations of the United States and Oklahoma Constitutions, including: 1) the statutorily-required transfers to the General Revenue Fund create a debt in violation of Okla. Const. art. 10, § 23; and 2) the statutorily required transfers violate the U.S. Constitution's prohibition on takings without just compensation, the Due Process Clause and the Equal Protection Clause of the United States Constitution, as well as the due process protection of Okla. Const. art. 2, § 7.
¶5 Appellant further alleges that by committing the above-described acts, state officials violated their oaths of office and unnamed attorneys for the state committed legal malpractice. Finally, Appellant asserts no statute of limitations bars his claim and that sovereign immunity does not apply.
¶6 On July 16, 2015, the State filed a Motion to Dismiss Appellant's Petition. The State asserts generally that the UUPA complies with all constitutional requirements and the State Treasurer's administration of the Unclaimed Property Fund complies with the UUPA and any duties as a trustee. Specifically, the State argues: 1) Appellant's trust arguments fail to state a claim, and even if they do, whether the UUPA creates a public trust as provided for in 60 O.S. 2011 § 176 is irrelevant; 2) the UUPA does not create an obligation that binds future legislators to appropriate money for a certain purpose, and therefore does not create an unconstitutional debt in violation of Okla. Const. art. 10, § 23; 3) Longstanding State and Federal precedent upholding the constitutionality of state unclaimed property statutes defeats Appellant's other Constitutional claims; 4) Appellant's statute of limitations claim, oath claim, and malpractice claim are not legally cognizable; and 5) any claims for damages are precluded by sovereign immunity.
¶7 While the State's Motion to Dismiss was pending, Appellant filed a Motion for Summary Judgment on August 31, 2015. The trial court held a hearing to consider both motions on October 7, 2015. In a journal entry filed on November 4, 2015, the trial court granted the State's Motion to Dismiss as to all of Appellant's causes of action, and denied Appellant's Motion for Summary Judgment. The trial court determined: 1) sovereign immunity precluded monetary damages in the case; 2) none of the provisions of the UUPA effectuate an unconstitutional taking; and 3) Appellant's other causes of action failed to state a claim on which relief could be granted for the reasons articulated by the State in its Motion to Dismiss.
¶8 Appellant appealed the trial court's ruling, and filed his Petition in Error pursuant to Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp. 2013, Ch. 15, App. 1, on November 30, 2015. In his Petition in Error, Appellant argues the trial court erred when it denied his Motion for Summary Judgment and granted the State's Motion to Dismiss. Appellant asserts: 1) the UUPA is a "public trust" having the Treasurer as a trustee and private parties as beneficiaries; 2) the UUPA provisions requiring transfer of funds not held as reserve to the State's General Revenue Fund violate trust obligations; 3) the UUPA requirement that interest and income accruing in the Unclaimed Property Fund's principle be paid to the State's General Revenue Fund violates trust obligations; 4) the UUPA is a "Ponzi scheme"; 5) transfers from the Unclaimed Property Fund to the State's General Revenue Fund create a debt in violation of Okla. Const. art. 10, § 23; and 6) transfers from the Unclaimed Property Fund to the State's General Revenue Fund violate the U.S. Constitution's prohibition on takings without just compensation, Due Process Clause, and Equal Protection Clause, as well as the due process protections of Okla. Const. art. 2, § 7.1
¶9 Appellant filed a Motion to Retain in the Supreme Court on November 30, 2015, which this Court granted on December 22, 2015.2 The cause was assigned to this office on December 29, 2015. There is a pending Motion to Set Oral Argument Before This Court En Banc filed by Appellant on November 30, 2015. This motion is denied.
STANDARD OF REVIEW
¶10 Motions to dismiss are generally viewed with disfavor, and the standard of review before this Court is de novo. Ladra v. New Dominion, LLC, 2015 OK 53, ¶8, 353 P.3d 529; Simonson v. Schaefer, 2013 OK 25, ¶3, 301 P.3d 413; Hayes v. Eateries, Inc., 1995 OK 108, ¶2, 905 P.2d 778. The purpose of a motion to dismiss is to test the law that governs the claim, not the underlying facts. Wilson v. State ex rel. State Election Bd., 2012 OK 2, ¶4, 270 P.3d 155; Darrow v. Integris Health, Inc., 2008 OK 1, ¶7, 176 P.3d 1204; Zaharias v. Gammill, 1992 OK 149, ¶6, 844 P.2d 137. Accordingly, when considering the legal sufficiency of the petition the court takes all allegations in the pleading as true together with all reasonable inferences that may be drawn from them. Ladra, 2015 OK 53, ¶8; Simonson, 2013 OK 25, ¶3; Fanning v. Brown, 2004 OK 7, ¶4, 85 P.3d 841. A plaintiff is required neither to identify a specific theory of recovery nor to set out the correct remedy or relief to which the plaintiff may be entitled. Gens v. Casady School, 2008 OK 5, ¶8, 177 P.3d 565; Darrow, 2008 OK 1, ¶7; May v. Mid-Century Ins. Co., 2006 OK 100, ¶10, 151 P.3d 132.
¶11 If relief is possible under any set of facts which can be established and is consistent with the allegations, a motion to dismiss should be denied. Gens, 2008 OK 5, ¶8; Darrow, 2008 OK 1, ¶7; Lockhart v. Loosen, 1997 OK 103, ¶4, 943 P.2d 1074. A motion to dismiss is properly granted only when there are no facts consistent with the allegations under any cognizable legal theory or there are insufficient facts under a cognizable legal theory. Wilson, 2012 OK 2, ¶4; Darrow, 2008 OK 1, ¶7; Lockhart, 1997 OK 103, ¶5.3 Where not all claims appear to be frivolous on their face or without merit, dismissal for failure to state a claim upon which relief may be granted is premature. Gens, 2008 OK 5, ¶8; Washington v. State ex rel. Dept. of Corrections, 1996 OK 139, ¶12, 915 P.2d 359. The party moving for dismissal bears the burden of proof to show the legal insufficiency of the petition. Ladra, 2015 OK 53, ¶8; Simonson, 2013 OK 25, ¶3; Tuffy's, Inc. v. City of Oklahoma City, 2009 OK 4, ¶6, 212 P.3d 1158.
I.
THE UNIFORM UNCLAIMED PROPERTY ACT, 60 O.S. §§ 651-688
¶12 Appellant's causes of action all concern Oklahoma's Uniform Unclaimed Property Act (UUPA), 60 O.S. §§ 651-688. Some background on how the UUPA functions is useful prior to delving into Appellant's arguments on appeal. The UUPA provides a comprehensive scheme for reporting, collection, maintenance, distribution, and escheat4 of tangible and intangible property deemed abandoned by its provisions. Quail Creek Golf and Country Club v. Okla. Tax Comm'n, 1996 OK 35, ¶6, 913 P.2d 302; Lincoln Bank and Trust Co. v. Okla. Tax Comm'n, 1992 OK 22, ¶3, 827 P.2d 1314.
¶13 The UUPA specifies types of property that are presumed abandoned after a period of time, usually several years, in the absence of any action by or contact with the person or entity holding the property. See generally 60 O.S. 2011 §§ 651.1 - 658.1A. The UUPA requires the holders of property, tangible or intangible, presumed abandoned and subject to custody as unclaimed property under the UUPA to file a report concerning the property with the State Treasurer. Title 60 O.S. Supp. 2013 § 661. It is then the responsibility of the State Treasurer to publish notice of abandoned property. Title 60 O.S. 2011 § 662.
¶14 The holders of abandoned property, upon filing the required report, are also required to pay or deliver the abandoned property to the State Treasurer, 60 O.S. 2011 § 663, and are relieved from liability once they have done so and the State assumes custody and responsibility for the safekeeping of the property. Title 60 O.S. 2011 § 664. Generally, once the State Treasurer has taken custody of abandoned property it is deposited in the Unclaimed Property Fund. Title 60 O.S. 2011 § 668(A) provides in pertinent part:

[t]here is hereby created in the State Treasury the "Unclaimed Property Fund", the principal of which shall constitute a trust fund for persons claiming any interest in any property delivered to the state under the Uniform Unclaimed Property Act and may be invested as hereinafter provided and shall not be expended except as provided in the Uniform Unclaimed Property Act. All funds received under the Uniform Unclaimed Property Act, including the proceeds from the sale of abandoned property under Section 667 of this title, shall forthwith be deposited by the State Treasurer in the Unclaimed Property Fund, herein created.
Title 60 O.S. 2011 § 669 vests the State Treasurer with authority to control the fund, and provides:

[t]he State Treasurer is hereby vested with authority and the responsibility for the control and management of all monies in the Unclaimed Property Fund as provided for in the Uniform Unclaimed Property Act. It shall be the duty of the State Treasurer to take such steps as may be necessary to preserve the principal of monies accruing to the Unclaimed Property Fund as a trust for persons claiming any interest in any property delivered to the state pursuant to the provisions of the Uniform Unclaimed Property Act.
The UUPA provides a process by which the owners of abandoned property may file a claim to recover their property, or the value of their property if it was sold pursuant to provisions of the act. Title 60 O.S. 2011 § 674. The State Treasurer is required to consider these claims, hold a hearing if necessary and if the claim is approved, pay the claim from the Unclaimed Property Fund. Title 60 O.S. 2011 § 675.
¶15 However, the UUPA contemplates and accounts for the fact that not all owners of abandoned property will seek to recover it. The UUPA therefore creates a system where a reserve is maintained in the Unclaimed Property Fund to pay approved claims and the remainder is deposited to the General Revenue Fund for use by the state. Specifically, 60 O.S. 2011 § 670 provides:

[t]he State Treasurer shall determine, from time to time, what amount of unclaimed property in custody should be retained as a reserve in order to ensure that all claims presented by persons legally establishing a right to any unclaimed property shall be paid promptly. In making such determination, the State Treasurer shall take into account the following:
1. The actual experience of other states having unclaimed property laws, as to the amount of claims presented and established as compared to the total amount of property taken into state custody;
2. Such actuarial or other experience or statistics as may be available to show the frequency of the discovery of missing persons or their unknown heirs;
3. Any other discoverable and relevant data having a tendency to establish the amount of reserve necessary for the purpose stated in this section.
The State Treasurer, after having found and determined the reserve necessary as stated in this section, shall pay all amounts in custody in excess of the necessary reserve into the State Treasury to the credit of the General Revenue Fund.
When monies are deposited to the credit of the General Revenue Fund, all rights of any owner of unclaimed property to resort against the money so paid into the General Revenue Fund shall terminate, but the right of any person legally establishing a claim to any property right which has been taken into the custody of the State Treasurer shall be preserved and the value thereof shall be paid from such reserve.
The UUPA also provides for the hypothetical scenario in which the reserve is insufficient to pay established claims. Title 60 O.S. 2011 § 671 provides:

[i]f, at any time, the reserve as provided for in the Uniform Unclaimed Property Act is insufficient to pay in full established claims, the State Treasurer immediately shall:
1. Redetermine, on the basis of past experience, the percentage necessary to be maintained in the reserve; and
2. Cease to make any payments to the General Revenue Fund until:
a. all validly established claims as provided for in the Uniform Unclaimed Property Act have been paid, and
b. there is accumulated in the reserve the sum required to be kept therein under the redetermination, whereupon the State Treasurer shall resume payments to the General Revenue Fund in accordance with the terms of the Uniform Unclaimed Property Act.
¶16 The UUPA thus protects the owners of unclaimed property by providing an orderly system of recovery for presumably abandoned property while simultaneously ensuring that the State and general public receive the benefits of such property rather than allowing holders of abandoned property to reap windfalls when a statute of limitations would cut off recovery from rightful owners.
II.
APPELLANT'S NON-CONSTITUTIONAL CLAIMS
A. Appellant's trust allegations are without merit.
¶17 Appellant asserts the language of 60 O.S. 2011 § 668 creates a trust from the Unclaimed Property Fund. Title 60 O.S. 2011 § 668(A) provides in pertinent part:

[t]here is hereby created in the State Treasury the "Unclaimed Property Fund", the principal of which shall constitute a trust fund for persons claiming any interest in any property delivered to the state under the Uniform Unclaimed Property Act and may be invested as hereinafter provided and shall not be expended except as provided in the Uniform Unclaimed Property Act. (Emphasis added).
Appellant also asserts that 60 O.S. 2011 § 669 creates trust beneficiaries from persons claiming any interest in property delivered to the State pursuant to the UUPA and makes the State Treasurer the trustee. Title 60 O.S. 2011 § 669 provides:

[t]he State Treasurer is hereby vested with authority and the responsibility for the control and management of all monies in the Unclaimed Property Fund as provided for in the Uniform Unclaimed Property Act. It shall be the duty of the State Treasurer to take such steps as may be necessary to preserve the principal of monies accruing to the Unclaimed Property Fund as a trust for persons claiming any interest in any property delivered to the state pursuant to the provisions of the Uniform Unclaimed Property Act. (Emphasis added).
Appellant further asserts that the Treasurer's required actions under 60 O.S. 2011 §§ 670-672, concerning the reserve and transfer of excess abandoned property to the General Revenue Fund, violate the trust obligations created by 60 O.S. 2011 §§ 668 & 669.
¶18 This Court need not address the question of whether the UUPA creates a trust under Oklahoma law.5 The question has no bearing on the determination of the propriety or impropriety of the trial court's grant of dismissal on this claim. Whether a trust is created or not, the terms of the UUPA control. In construing the terms of an instrument creating a trust, the intention of the settlor of the trust should control when such intention is not in conflict with established principles of law. In re Will of Dimick, 1975 OK 10, ¶10, 531 P.2d 1027; Hurst v. Kravis, 1958 OK 290, ¶13, 333 P.2d 314. The intent is to be gathered from the terms of the instrument as a whole. In re Will of Dimick, 1975 OK 10, ¶10; Dunnet v. First Nat. Bank & Trust Co., 1938 OK 608, ¶6, 85 P.2d 281. Where there is no ambiguity and the language of a trust is clear and plainly susceptible of only one construction, the plain provisions of the trust instrument must determine its construction. House of Realty, Inc. v. City of Midwest City, 2004 OK 97, ¶36, 109 P.3d 314; Matter of Home-Stake Production Co., Etc., 1979 OK 81, ¶8, 598 P.2d 1193.
¶19 The standard for construing the terms of an instrument creating a trust is similar to the standard governing interpretation of the Oklahoma statutes. In construing a statute, the primary goal is to determine legislative intent. In re Estate of Jackson, 2008 OK 83, ¶16, 194 P.3d 1269; Heldermon v. Wright, 2006 OK 86, ¶12, 152 P.3d 855; George E. Failing Co. v. Watkins, 2000 OK 76, ¶7, 14 P.3d 52. If the legislative intent is clear from a statute's plain and unambiguous language, this Court need not resort to rules of statutory construction. In re Estate of Jackson, 2008 OK 83, ¶16; Heldermon, 2006 OK 86, ¶12. Legislative intent is to be gleaned from the text in light of its general purpose and object. Watkins, 2000 OK 76, ¶7; City of Tulsa v. State ex rel. Public Employees Relations Bd., 1998 OK 92, ¶14, 967 P.2d 1214.
¶20 Regardless of whether the UUPA creates a trust, the language of the UUPA is clear and unambiguous, and its terms control. Similarly, the duties of the State Treasurer, either as a trustee or executive official, are defined by the UUPA. Title 60 O.S. 2011 § 670 requires the State Treasurer to determine a necessary reserve amount of unclaimed property and to transfer the excess into the General Revenue Fund.6 Likewise, 60 O.S. 2011 § 671 requires the State Treasurer to cease those payments if the number of valid claims exceeds the reserve, and 60 O.S. 2011 § 672 requires the State Treasurer to care for the reserve fund and permits its investment, while requiring any interest to be paid into the General Revenue Fund. Title 60 O.S. 2011 § 668, which creates the Unclaimed Property Fund in the first place, does not require the Unclaimed Property Fund retain all money deposited into it. Title 60 O.S. 2011 § 668, in pertinent part, describes the Unclaimed Property Fund thusly:

There is hereby created in the State Treasury the "Unclaimed Property Fund", the principal of which shall constitute a trust fund for persons claiming any interest in any property delivered to the state under the Uniform Unclaimed Property Act and may be invested as hereinafter provided and shall not be expended except as provided in the Uniform Unclaimed Property Act. (emphasis added).
¶21 Appellant has not alleged the State Treasurer has taken any action contrary to the provisions of the UUPA. To the contrary, Appellant alleges that the Treasurer has violated his obligations as a "trustee" by following the provisions of the UUPA, which would itself be the trust instrument if this Court were to hold it created an express trust. If it does not, the State Treasurer has simply done exactly as the legislature has directed in implementing the UUPA and fulfilling his obligations. There is no merit to Appellant's trust allegations.
B. Appellant's allegations the UUPA constitutes a "Ponzi scheme" are without merit.
¶22 Appellant also alleges the UUPA creates a "Ponzi scheme" because of how it handles the reserve to pay established claims. The UUPA provides for the maintenance of a reserve fund that might conceivably be insufficient to pay out all established claims. See 60 O.S. 2011 § 670. If this eventuality occurs, 60 O.S. 2011 § 671 requires the State Treasurer to recalculate the necessary reserve and cease making payments into the General Revenue Fund until all validly established claims are paid. In other words, if validly established claims exceed the established reserve, incoming unclaimed property will be held in reserve to pay valid claims until all established claims are paid. Appellant asserts this constitutes a "Ponzi scheme", because the reserve is not sufficient to pay all potential (including not-yet-established) claims and new abandoned property is to be used to pay any established claims exceeding the reserve.
¶23 A "Ponzi scheme" is a fraudulent investment scheme. Black's Law Dictionary defines "Ponzi scheme" in the following manner:

[a] fraudulent investment scheme in which money contributed by later investors generates artificially high dividends or returns for the original investors, whose example attracts even larger investments. Money from the new investors is used directly to repay or pay interest to earlier investors, usu. without any operation or revenue-producing activity other than the continual raising of new funds. This scheme takes its name from Charles Ponzi, who in the late 1920s was convicted for fraudulent schemes he conducted in Boston.
Black's Law Dictionary (10th ed. 2014).
The example from which the name is derived, masterminded by Charles Ponzi, was described by the Supreme Court of the United States in Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924).7 This Court has considered the legal ramifications of "Ponzi schemes" in several cases, all of which concerned fraudulent investment schemes. See, e.g., Horton v. Hamilton, 2015 OK 6, 345 P.3d 357 (concerning purchase of a bond that was part of a fraudulent investment Ponzi scheme); Okla. Dep't of Sec. ex rel. Faught v. Wilcox, 2011 OK 82, 267 P.3d 106 (Department of Securities sought return of amounts defendants received from Ponzi scheme in excess of their investments); Okla. Dep't of Sec. ex rel. Faught v. Blair, 2010 OK 16, 231 P.3d 645 (same underlying issues as Wilcox).
¶24 The UUPA is not a "Ponzi scheme" within the meaning of that term. It is not a fraudulent investment scheme being perpetrated against the citizens of Oklahoma, implicating violations of the Oklahoma Uniform Securities Act, 71 O.S. §§ 1-101 to 1-701, or otherwise. The UUPA deals with unclaimed property that is presumed abandoned. It establishes a reserve to pay valid claims in the event owners of that property eventually come forward to claim it, and permits the State to put the rest to use. The State is not deceiving new investors in order to pay valid claims, but rather paying those claims with abandoned property it would be taking in anyway, per the terms of the UUPA. Title 60 O.S. 2011 § 671 operates in such a manner that even if they must wait, owners of abandoned property with valid claims will always be able to eventually recover their previously presumed-abandoned property.
¶25 Should Appellant's allegations be read as constituting a more general claim of fraud, they still fail to state a claim upon which relief may be granted. Fraud is a generic term embracing the multifarious means which human ingenuity can devise so one can get advantage over another by false suggestion or suppression of the truth. Croslin v. Enerlex, Inc., 2013 OK 34, ¶11, 308 P.3d 1041; Singleton v. LePak, 1967 OK 37, ¶13, 425 P.2d 974; Morris v. McLendon, 1933 OK 619, ¶8, 27 P.2d 811. Title 12 O.S. Supp. 2013 § 2009(B) sets out the pleading standard for fraud and provides: "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." Under this standard, allegations of fraud must be stated with sufficient particularity to enable the opposing party to prepare his or her responsive pleadings and defenses. A-Plus Janitorial & Carpet Cleaning v. Employers' Workers' Comp. Ass'n, 1997 OK 37, ¶35, 936 P.2d 916. This standard requires specification of the time, place, and content of an alleged false representation. Gianfillippo v. Northland Gas Co., 1993 OK 125, ¶11, 861 P.2d 308. Appellant has not alleged any misrepresentation made concerning the operation of the UUPA in connection with his claim that it constitutes a "Ponzi scheme". The UUPA's requirements are set out in the Oklahoma Statutes for all to see, and were followed by the State Treasurer. Appellant's allegations that the UUPA constitutes a "Ponzi scheme" are without merit.
III.
APPELLANT'S CONSTITUTIONAL CLAIMS
¶26 The Court now turns to the various questions concerning the constitutionality of the UUPA that Appellant has preserved for appeal. A challenger to the constitutionality of a statute bears a heavy burden. A legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably and plainly inconsistent with the Constitution. Rural Water Sewer and Solid Waste Mgmt. v. City of Guthrie, 2010 OK 51, ¶15, 253 P.3d 38; EOG Resources Marketing, Inc. v. Okla. State Bd. of Equalization, 2008 OK 95, ¶13, 196 P.3d 511; Mehdipour v. State ex rel. Dep't of Corr., 2004 OK 19, ¶22, 90 P.3d 546. Every presumption is to be indulged in favor of the constitutionality of a statute. Thomas v. Henry, 2011 OK 53, ¶8, 260 P.3d 1251; Fent v. Okla. Capitol Improvement Auth., 1999 OK 64, ¶3, 984 P.2d 200.
A. Transfers from the Unclaimed Property Fund to the State's General Revenue Fund do not create a debt in violation of Okla. Const. art. 10, § 23.
¶27 Appellant asserts that the reserve provisions of the UUPA, 60 O.S. 2011 §§ 670-671 create a "debt" in violation of Okla. Const. art. 10, § 23. In pertinent part, Okla. Const. art. 10, § 23 provides:

[t]he state shall never create or authorize the creation of any debt or obligation, or fund or pay any deficit, against the state, or any department, institution or agency thereof, regardless of its form or the source of money from which it is to be paid, except as may be provided in this section and in Sections 24 and 25 of Article X of the Constitution of the State of Oklahoma.
¶28 Over the years this Court has analyzed what constitutes a "debt" in violation of Okla. Const. art. 10, § 23. For example, in In re Application of Okla. Dep't of Transp., 2003 OK 105, ¶25, 82 P.3d 1000, this Court held that notes issued by the Oklahoma Department of Transportation that were to be payable only from future federal highway aid did not constitute a debt of the State of Oklahoma pursuant to Okla. Const. art. 10, § 23. This Court stated:

[t]he proposed GARVEE notes when issued by the Oklahoma Department of Transportation will constitute an obligation payable solely from future receipts of federal highway aid dedicated to the retirement of the notes. The principal, interest, or costs of the GARVEE notes will not be paid with future revenues raised by the taxing power of this State, nor will they be paid from future funds that would otherwise be available for general governmental purposes. In the event of default, note holders will be paid only from the Note Payment Fund and any receipts of federal highway aid dedicated to the retirement of the notes. Under these circumstances, the proposed GARVEE notes will not constitute a debt of the State of Oklahoma under the Okla. Const. art. 10, § 23.
In re Application of Okla. Dept. of Transp., 2003 OK 105, ¶25 (emphasis added).
¶29 This Court has also held that no debt is created when a statute authorizes bonds but does not attempt to bind future legislators to repay them. In Fent v. Okla. Capitol Imp. Auth., 1999 OK 64, ¶7, this Court examined statutes authorizing the Oklahoma Capital Improvement Authority (OCIA) to issue and sell bonds for certain public building projects. This Court stated:

[a]s we interpret both statutes, OCIA is authorized thereunder to fund the costs of the various projects by borrowing monies on the credit of the income and revenues to be derived from the projects. The money borrowed will, of course, come from the issuance and sale of the bonds. In turn, the bonds are to be retired by payments made to OCIA by the various agencies, departments and/or instrumentalities using and/or benefitting from the projects under lease or other agreements with OCIA. Although each statute expresses an intent to appropriate sufficient monies to the various agencies, etc. to make such payments to OCIA for the purpose of retiring the bonds, nowhere in either statute is there a provision obligating a future legislature to do so.
Fent v. Okla. Capitol Imp. Auth., 1999 OK 64, ¶8.
¶30 Appellant argues that the promise to return property to established claimants, set out in 60 O.S. 2011 §§670-671 violates Okla. Const. art. 10, § 23 by creating a "debt" within the meaning of that provision, without complying with the exceptions set out in Okla Const. art. 10, §§ 23-25. Title 60 O.S. 2011 § 670 requires the State Treasurer to determine what amount of unclaimed property in custody should be retained as a reserve to pay established claims. The State Treasurer is then required to pay all amounts in custody in excess of that reserve into the State Treasury to the credit of the General Revenue Fund. However, especially important is the final sentence of 60 O.S. 2011 § 670, which provides:

[w]hen monies are deposited to the credit of the General Revenue Fund, all rights of any owner of unclaimed property to resort against the money so paid into the General Revenue Fund shall terminate, but the right of any person legally establishing a claim to any property right which has been taken into the custody of the State Treasurer shall be preserved and the value thereof shall be paid from such reserve.
Pursuant to this section, claimants of unclaimed property have no rights whatsoever to seek payment from the General Revenue Fund, only from the reserve, itself composed of unclaimed property.
¶31 Title 60 O.S. 2011 § 671 provides for the eventuality of a shortage of funds in the reserve to pay valid claims, and provides:

[i]f, at any time, the reserve as provided for in the Uniform Unclaimed Property Act is insufficient to pay in full established claims, the State Treasurer immediately shall:
1. Redetermine, on the basis of past experience, the percentage necessary to be maintained in the reserve; and
2. Cease to make any payments to the General Revenue Fund until:
a. all validly established claims as provided for in the Uniform Unclaimed Property Act have been paid, and
b. there is accumulated in the reserve the sum required to be kept therein under the redetermination, whereupon the State Treasurer shall resume payments to the General Revenue Fund in accordance with the terms of the Uniform Unclaimed Property Act.
Pursuant to this section, if there is a deficiency in the reserve to pay in full established claims, all payments to the General Revenue Fund must cease until those claims are paid and the reserve is built back up.
¶32 The transfer of unclaimed property to the General Revenue Fund pursuant to the UUPA is one way. While excess funds above the determined reserve are transferred to the General Revenue Fund, recourse is never made to the General Revenue Fund to satisfy potential claims. Claimants' only recourse is to the reserve, itself filled only by the accumulation of abandoned property pursuant to the UUPA. The State has not legally pledged its full faith and credit to pay the owners of abandoned property. The Legislature, in enacting the UUPA, did not make any attempt to bind future legislatures to appropriate money or otherwise raise funds to pay established claims under the UUPA. Appellant's claim that the UUPA creates a debt in violation of Okla. Const. art. 10, § 23 is without merit.
B. The UUPA does not effectuate a taking in violation of U.S. Const. amend. V.
¶33 Appellant asserts that the UUPA effectuates a taking of private property without just compensation in violation of U.S. Const. amend. V.8 In Texaco, Inc. v. Short, 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982), the Supreme Court of the United States conclusively rejected the notion that legal termination of ownership rights in abandoned property constitutes a taking entitled to just compensation. In that case, the Court considered an Indiana statute under which a mineral lease not used for twenty years would automatically lapse unless the owner filed a statement of claim in the county recorder's office. Texaco, Inc., 454 U.S. at 518-520. Concerning the appellants' taking claim, the Court held:

[i]n ruling that private property may be deemed to be abandoned and to lapse upon the failure of its owner to take reasonable actions imposed by law, this Court has never required the State to compensate the owner for the consequences of his own neglect. We have concluded that the State may treat a mineral interest that has not been used for 20 years and for which no statement of claim has been filed as abandoned; it follows that, after abandonment, the former owner retains no interest for which he may claim compensation. It is the owner's failure to make any use of the property-and not the action of the State-that causes the lapse of the property right; there is no "taking" that requires compensation. The requirement that an owner of a property interest that has not been used for 20 years must come forward and file a current statement of claim is not itself a "taking."
Texaco, Inc., 454 U.S. at 530.
¶34 The Texaco, Inc. Court examined a statute that would completely extinguish rights to property if certain conditions were not met, and determined it did not effectuate a taking. Unlike the Indiana statute examined in Texaco, Inc., the UUPA does not extinguish the rights of owners of abandoned property. As previously discussed, the UUPA is a custodial taking statute. Title 60 O.S. 2011 § 674 provides a procedure through which owners of abandoned property may file a claim and "[i]f a claim is allowed, the State Treasurer shall pay over or deliver to the claimant the property or the amount the State Treasurer actually received or the net proceeds if it has been sold by the State Treasurer." Appellant availed himself of this mechanism and by his own admission had his property returned to him.
¶35 Regardless, much like the statute considered in Texaco, Inc., the UUPA provides that various types of property will be presumed abandoned unless certain actions are taken by the owner in a specified period of time. See 60 O.S. 2011 § 651.1-658.1A. Here, as in Texaco, Inc., the intake and custody of abandoned property is attributable to the inattention or abandonment of the owners. The rationale of Texaco, Inc. is thus applicable. No taking occurs.
¶36 The rationale of Texaco, Inc., applies equally to Appellant's claims concerning interest on his property. The UUPA entitles an owner of abandoned property other than money to receive interest accruing prior to conversion of that property into money. Title 60 O.S. 2011 § 665. Excepting Section 665, the UUPA entitles a claimant only to the amount of their property the Treasurer actually received or the net proceeds if it was sold. Title 60 O.S. 2011 § 674. The State is not required to compensate a claimant for the consequences of their own neglect, and this includes interest their property might generate while temporarily in the custody of the State. Just because the Legislature chose not to terminate an owner's rights in abandoned property does not mean it is required to allow a claim for interest. Courts in other states have reached a similar result applying Texaco, Inc. to their own unclaimed property statutes, including claims for interest. See Smolow v. Hafer, 959 A.2d 298, 303-304 (Pa. 2008); Morris v. Chiang, 77 Cal.Rptr.3d 799, 804 (Cal. ApP.2d Dist. 2008); Smyth v. Carter, 845 N.E.2d 219, 223-224 (Ind. Ct. App. 2006); Clark v. Strayhorn, 184 S.W.3d 906, 914 (Tex. App. 2006). Appellant's claim that the UUPA effectuates a taking in violation of U.S. Const. amend. V is meritless.
C. The UUPA does not violate the Due Process Provisions of either the United States or Oklahoma Constitutions.
¶37 Appellant asserts that the UUPA deprives him and others of property without due process of law in violation of Okla. Const. art. 2, § 7,9 U.S. Const. amend. V,10 and U.S. Const. amend. XIV, § 1,11 by taking trust property, through the statutory provisions requiring transfer of abandoned property exceeding the reserve into the General Revenue Fund. Oklahoma's Due Process Clause is generally coextensive with its federal counterpart. State ex rel. Bd. of Regents of University of Okla. v. Lucas, 2013 OK 14, n. 25, 297 P.3d 378; Gladstone v. Bartlesville Indep. School Dist. No. 30 (I-30), 2003 OK 30, n. 16, 66 P.3d 442; Fair School Fin. Council of Okla., Inc. v. State, 1987 OK 114, n. 48, 746 P.2d 1135. At a minimum, due process requires notice and an opportunity to be heard. Crownover v. Keel, 2015 OK 35, ¶14, 357 P.3d 470; Edwards v. City of Sallisaw, 2014 OK 86, ¶19, 339 P.3d 870; Daffin v. State ex rel Okla. Dep't of Mines, 2011 OK 22, ¶16, 251 P.3d 741.
¶38 As this Court has not addressed in detail the question of whether the UUPA complies with constitutional due process requirements, federal jurisprudence is illustrative. The Supreme Court of the United States has previously held unclaimed property statutes to be a valid exercise of state power, stating: "[a]s a broad principle of jurisprudence rather than as a result of the evolution of legal rules, it is clear that a state, subject to constitutional limitations, may use its legislative power to dispose of property within its reach, belonging to unknown persons." Standard Oil Co. v. State of N.J., by Parsons, 341 U.S. 428, 435-436, 71 S.Ct. 822, 95 L.Ed. 1078 (1951). Similarly, the Court held in Texaco, Inc., discussed supra.:

[w]e have no doubt that, just as a State may create a property interest that is entitled to constitutional protection, the State has the power to condition the permanent retention of that property right on the performance of reasonable conditions that indicate a present intention to retain the interest.
From an early time, this Court has recognized that States have the power to permit unused or abandoned interests in property to revert to another after the passage of time.
Texaco, Inc., 454 U.S. at 526.
¶39 In Texaco, Inc., the Supreme Court of the United States also considered whether Indiana's mineral lapse statute met the adequate notice requirement of due process. Concerning notice of the requirements of the statute itself, the Court held:

[g]enerally, a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply . It is well established that persons owning property within a State are charged with knowledge of relevant statutory provisions affecting the control or disposition of such property.
Texaco, Inc., 454 U.S. at 532.
Having determined that the appellants were presumed to have notice of the mineral lapse statute's provisions, the Court next considered the question of whether, given that knowledge, they had a constitutional right to be advised that the period of non-use was about to expire and their interest would revert to the surface owner. Texaco, Inc., 454 U.S. at 533. The Court then made an important distinction, noting: "it is essential to recognize the difference between the self-executing feature of the statute and a subsequent judicial determination that a particular lapse did in fact occur." Texaco, Inc., 454 U.S. at 533.
¶40 The appellants in Texaco, Inc., argued the Supreme Court's own seminal case of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)12 should be applied to determine whether they received proper notice that their mineral interests were about to revert to the surface owners. The Supreme Court disagreed, holding:

[t]he reasoning in Mullane is applicable to a judicial proceeding brought to determine whether a lapse of a mineral estate did or did not occur, but not to the self-executing feature of the Mineral Lapse Act. The due process standards of Mullane apply to an "adjudication" that is "to be accorded finality." The Court in Mullane itself distinguished the situation in which a State enacted a general rule of law governing the abandonment of property. It has long been established that "laws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly," Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 333, but it has never been suggested that each citizen must in some way be given specific notice of the impact of a new statute on his property before that law may affect his property rights.
Texaco, Inc., 454 U.S. at 535-536.
¶41 Much like the mineral lapse statute at issue in Texaco, Inc., the UUPA sets conditions under which types of property are presumed abandoned, based primarily on the failure of the owner to take certain actions such as communicating with the holder. See, e.g., 60 O.S. 2011 § 651.2 (any sum payable on a check, certified check, cashier's check, draft, or similar instrument presumed abandoned after no written communication or indication of interest from the owner after five years). Title 60 O.S. 2011 § 663 then requires holders to turn this property over to the State Treasurer. Unlike in Texaco, Inc., this process does not result in the termination of the owner's interest in the property. Even if it did, however, the holding in Texaco, Inc., illustrates that due process requirements of notice and an opportunity to be heard do not apply to automatic termination of a property right through operation of statute based on an owner's failure to fulfill certain conditions. Rather, the requirements of due process would apply only to a proceeding brought to adjudicate if that right did in fact terminate. Texaco, Inc., 454 U.S. at 535. It follows by extension that due process is not offended by the automatic transfer of abandoned property into the custody of the State Treasurer.
¶42 Since the UUPA does not terminate an individual owner's right to recover their abandoned property, even after the statute results in its transfer to the State, the statute provides a procedural mechanism for owners to seek return of their abandoned property. The procedural elements of this statute comply with due process requirements. They are consistent with the holdings of the Supreme Court of the United States in Texaco, Inc. and Mullane, as well as with this Court's jurisprudence concerning due process.
¶43 The UUPA provides ample notice to potential claimants of abandoned property. Title 60 O.S. Supp. 2013 § 661 requires holders of abandoned property to file a report with the State Treasurer concerning the property. The report must provide the name, if known, and last-known address for the owner of any property valued over $50 and presumed abandoned. Title 60 O.S. Supp. 2013 § 661(E) requires holders of abandoned property to attempt to notify owners prior to filing the report. It provides in full:

E. Not more than one hundred twenty (120) days before filing the report required by this section, the holder in possession of property presumed abandoned and subject to custody as unclaimed property under the Uniform Unclaimed Property Act shall send written notice to the apparent owner at the owner's last-known address informing the owner that the holder is in possession of property subject to the Uniform Unclaimed Property Act if:
1. The holder has in the records of the holder an address for the apparent owner which the holder's records do not disclose to be inaccurate;
2. The claim of the apparent owner is not barred by the statute of limitations; and
3. The property has a value of Fifty Dollars ($50.00) or more, or the property has a value of less than Fifty Dollars ($50.00) and is one of a recurring number of continuous payments, including, but not limited to, royalties, annuities, dividends, distributions and other recurring sums presumed abandoned pursuant to subsection D of Section 655 of this title. The holder is not required to send written notice to the owner if the holder has previously attempted to communicate with the owner, or otherwise exercised due diligence to ascertain the whereabouts of the owner. The mailing of notice by first-class mail to the last-known address of the owner by the holder shall constitute compliance with this subsection and, if done, no further act on the part of the holder shall be necessary.
Title 60 O.S. 2011 § 661(E).
¶44 Further, 60 O.S. 2011 § 662 requires the State Treasurer attempt to notify owners that their property is in State custody. It provides:

A. The State Treasurer shall cause at least two notices to be published during the year following the report required by Section 661 of this title in a legal newspaper of general circulation in the county in this state in which is located the last-known address of any person to be named in the notice. Different legal newspapers of general circulation may be used for each notice. If no address is listed or if the address is outside this state, the notice must be published in the county within this state which is the principal place of business of the holder of the abandoned property, or in an Oklahoma newspaper which the State Treasurer believes most likely to be seen by the owner of the property or by heirs of the owner.
B. The published notice must be entitled "Notice of Names of Persons Appearing to be Owners of Abandoned Property", and contain:
1. The names in alphabetical order and last-known address, if any, of persons listed in the report and entitled to notice within the county as specified in subsection A of this section;
2. A statement that information concerning the property and the name and last-known address of the holder may be obtained by any person possessing an interest in the property by addressing an inquiry to the State Treasurer; and
3. A statement that the property is in the custody of the State Treasurer and all claims must be directed to the State Treasurer.
C. The State Treasurer is not required to publish in the notice any items of less than Fifty Dollars ($50.00) unless the State Treasurer considers their publication to be in the public interest.
D. The State Treasurer shall provide electronic access to the new names and last-known addresses of all persons reported to the State Treasurer as owners of unclaimed property on an Internet web site. The State Treasurer shall take reasonable steps to publicize the existence of this web site and shall publish an advertisement no less than once each calendar quarter in a legal newspaper of general circulation in each county of this state.
¶45 Owners of abandoned property are then permitted by 60 O.S. 2011 § 674 to file a claim for the return of their property, which the State Treasurer must consider within ninety days and give written notice if the claim is denied in whole or part. Title 60 O.S. 2011 § 675 provides further procedure for determining claims, and provides in pertinent part:

A. The State Treasurer shall consider any claim filed under the Uniform Unclaimed Property Act and may hold a hearing and receive evidence concerning it. The procedure to be followed hereunder shall be as prescribed by the Administrative Procedures Act. If a hearing is held, the State Treasurer shall prepare a finding and decision in writing on each claim filed, stating the substance of any evidence heard by the State Treasurer and the reasons for the State Treasurer's decision. The decision shall be a public record. (Footnotes omitted).
¶46 This Court recently considered what constitutes adequate notice for due process purposes in Crownover v. Keel, 2015 OK 35, 357 P.3d 470. In that cause, this Court considered whether an owner of real property received constitutionally sufficient notice of the sale of his property for delinquent taxes, when notice was provided only by publication and certified mail that was returned undelivered. Applying Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), and Mullane, 339 U.S. 306, this Court held that notice must be reasonably calculated to reach the interested parties, and this standard was not satisfied by certified mail when the letter was returned unclaimed. See Crownover, 2015 OK 35, ¶¶27-30.
¶47 Here, the UUPA requires notice to property owners via multiple mechanisms that are reasonably calculated, under the circumstances, to apprise interested parties that their abandoned property is (or is soon to be) in the custody of the State and that they may file a claim to have it returned to them. See Crownover, 2015 OK 35, ¶¶27-30; Jones, 547 U.S. at 226; Mullane, 339 U.S. at 314-315. The very nature of the UUPA as a custodial taking statute for property that is presumed abandoned means that communicating notice to potential owners may be difficult. Accordingly, the statute requires mailed notice, publication, and posting on the internet. As applied to Appellant, the undisputed facts of this cause indicate that he became aware the State had taken custody of his abandoned property, filed a claim, the claim was approved, and his property was returned to him. Appellant's allegations that the UUPA does not provide constitutionally-sufficient notice are without merit.
D. The UUPA does not violate constitutional guarantees to equal protection under the law.
¶48 Appellant also alleges that he has been denied equal protection under the law, as part of his due process argument. U.S. Const. amend. XIV, § 1 provides in pertinent part that no state shall: "deny to any person within its jurisdiction the equal protection of the laws."13 Appellant makes no allegations, in his original Petition or in his Petition in Error, concerning any classes who receive constitutionally problematic treatment. Rather, Appellant appears to equate equal protection with due process and argues that the alleged deprivation of notice discussed supra also constitutes a violation of the Equal Protection Clause.
¶49 The Equal Protection Clause, although not an absolute guarantee of equality of operation or application of state legislation, is intended to safeguard the quality of governmental treatment against arbitrary discrimination. Ross v. Peters, 1993 OK 8, ¶17, 846 P.2d 1107. When called upon to analyze a case on equal protection grounds, a court will apply one of three standards of review: 1) rational basis; 2) heightened scrutiny; or 3) strict scrutiny. Gladstone, 2003 OK 30, n. 22; City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440-442, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Unless a classification warrants some form of heightened review because it jeopardizes the exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest. Gladstone, 2003 OK 30, n. 25; Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992); Cleburne, 473 U.S. at 439-441.
¶50 Though Appellant makes no argument concerning a classification, any equal protection violations of the UUPA would have to hinge on its creation of a classification of owners of presumably abandoned property that are treated differently from owners of other property. Heightened levels of scrutiny apply only to statutes that: 1) operate to the peculiar disadvantage of a suspect class such as a class based on alienage or ancestry; or 2) interfere with the exercise of a fundamental right grounded in the constitution such as the right to vote, right to interstate travel, and rights guaranteed by the first amendment. Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶55, 148 P.3d 842; Mass. Bd. Of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). As the UUPA implicates neither of those conditions through its treatment of abandoned property and owners, this Court must only determine if the classification rationally furthers a legitimate state interest. Gladstone, 2003 OK 30, n. 25.
¶51 There is no doubt that the UUPA, and its treatment of unclaimed property, serves a legitimate state interest. It prevents holders of unclaimed property (such as banks, insurers, and other entities) from reaping financial windfalls from that property. Instead, the UUPA requires it be turned over to the State and allows it to be put to public use. Through its notification provisions, it requires efforts be made to contact the owners of abandoned property in an effort to reunite owners with their property. The Supreme Court of the United States has unequivocally stated that States have legitimate interests in terminating property rights in property that has not been used for years. Texaco, Inc., 454 U.S. at 526-530. The UUPA does not go that far, and permits owners to reclaim their property even as continuously-unclaimed property is put to public use. The UUPA's treatment of abandoned property and its owners rationally furthers a legitimate state interest, and does not operate in an arbitrary manner. Accordingly, the UUPA does not violate the equal protection components of either U.S. Const. amend. XIV, § 1 or Okla. Const. art. 2, § 7.
CONCLUSION
¶52 Appellant challenges the validity of the UUPA on multiple grounds, constitutional and otherwise. In our view, the Petition and the allegations contained therein, read in conformity with the arguments raised by Appellant in this appeal, indicate no relief is possible under any set of facts which can be established and is consistent with the allegations. Appellant's claims are without merit. Accordingly, the trial court's dismissal of Appellant's Petition, and its denial of his Motion for Summary Judgment, were proper.
ORDER OF THE TRIAL COURT IS AFFIRMED
ALL JUSTICES CONCUR
FOOTNOTES
1 Under the pre-1997 appellate rules, errors not presented by the petition in error would not be considered on appeal. See Okla. Tax Comm'n v. City Vending of Muskoge, Inc., 1992 OK 110, n. 6, 835 P.2d 97; Kirschstein v. Haynes, 1990 OK 8, ¶31, 788 P.2d 941. This changed with the adoption of the modern Rule 1.26(b) in 1997,which provides that the petition in error will be deemed amended to include errors set forth in the brief-in-chief. Rule 1.26, Oklahoma Supreme Court Rules, 12 O.S. Supp. 2013, Ch. 15, App. 1. However, in accelerated appeals under Oklahoma Supreme Court Rule 1.36 and with the absence of appellate briefs, issues not raised by Appellant in his Petition in Error will not be considered by this Court on appeal.
2 In our December 22, 2015, order granting Appellant's Motion to Retain, this Court made this cause a companion to Reynolds v. Fallin, No. 114,481.
3 The distinction between lack of any cognizable legal theory and insufficient facts under a cognizable legal theory is important, because in order for the courts to dismiss a claim for failure to state a cause of action without giving the plaintiff the opportunity to amend, it must appear that the claim does not exist rather than the claim has been defectively stated. Fanning v. Brown, 2004 OK 7, ¶23, 85 P.3d 841.
4 Escheat is a procedure with ancient origins whereby a sovereign may acquire title to abandoned property if after a number of years no rightful owner appears. State of Tex. v. State of N.J., 379 U.S. 674, 676, 85 S.Ct. 626, 13 L.Ed.2d 596 (1965), supplemented 380 U.S. 518 (1965). Though this Court has previously used the term "escheat" to refer to the transfer of abandoned property to the State pursuant to the UUPA, in TXO Production Corp. v. Okla. Corp. Comm'n, 1992 OK 39, ¶15, 829 P.2d 964, this Court explained that the UUPA is not a true escheat statute, but rather a custodial taking law. See Croslin v. Enerlex, Inc., 2013 OK 34, ¶25, 308 P.3d 1041. Under the UUPA, the State does not acquire title to abandoned property but rather holds it in trust for the rightful owner. Croslin, 2013 OK 34, ¶25; TXO Production Corp., 1992 OK 39, ¶15. The Oklahoma Attorney General has also noted the custodial taking nature of the UUPA, stating:
Oklahoma enacted its unclaimed property legislation in 1967 and modeled it after the 1954 version of the Uniform Disposition of Unclaimed Property Act promulgated by the National Conference of Commissioners on State Laws. The Oklahoma Act contains the basic structure and most of the basic wording of the Uniform Act. One of the distinguishing characteristics of the Uniform Act is that it is custodial in nature, that is, it does not result in the loss of the owner's property rights. See, Uniform Disposition of Unclaimed Property Act. pref. n. 9A U.L.A.412 413 (1965). In custodial statutes, the state is only given possession and use of the property as long as it remains unclaimed. Also in custodial statutes, the state is required to keep its books open so that the true owner may make a claim to the held property at any time. Further, in custodial statutes, there is never a transfer of property from the treasurer's custodial rolls to the escheat rolls. See, 3 Harv. J. Legis., supra.,144.
Question Submitted by: The Honorable Nancy Virtue, Oklahoma House of Representatives, The Honorable Herbert Rozell, Oklahoma State Senate, 1984 OK AG 141, ¶9.
5 Appellant alternates between using the terms trust and public trust when referring to the relevant sections of the UUPA. Public trusts are created and operate pursuant to the Public Trust Act, 60 O.S. §§ 176 -180.4. Title 60 O.S. 2011 § 176 requires the State or one of its political subdivisions be the beneficiary of a public trust. Appellant's arguments rest on the assertion that he, and other owners of abandoned property similarly situated, are the beneficiaries of any trust created pursuant to the UUPA. The Public Trust Act is inapplicable to Appellant's allegations.
6 Title 60 O.S. 2011 § 670 provides in pertinent part:
[t]he State Treasurer shall determine, from time to time, what amount of unclaimed property in custody should be retained as a reserve.
The State Treasurer, after having found and determined the reserve necessary as stated in this section, shall pay all amounts in custody in excess of the necessary reserve into the State Treasury to the credit of the General Revenue Fund. (Emphasis added).
Generally, when the Legislature uses the term "shall", it signifies a mandatory directive or command. Tulsa County Budget Bd. v. Tulsa County Excise Bd., 2003 OK 103, n. 25, 81 P.3d 662; Keating v. Edmondson, 2001 OK 110, ¶13, 37 P.3d 882; U.S. Through Farmers Home Admin. v. Hobbs, 1996 OK 77, n. 16, 921 P.2d 338. The use of shall in this instance is unambiguously a mandatory directive.
7 The Court described the scheme thusly:
[t]he litigation grows out of the remarkable criminal financial career of Charles Ponzi. In December, 1919, with a capital of $150, he began the business of borrowing money on his promissory notes. He did not profess to receive money for investment for account of the lender. He borrowed the money on his credit only. He spread the false tale that on his own account he was engaged in buying international postal coupons in foreign countries and selling them in other countries at 100 per cent. profit, and that this was made possible by the excessive differences in the rates of exchange following the war. He was willing, he said, to give others the opportunity to share with him this profit. By a written promise in 90 days to pay them $150 for every $100 loaned, he induced thousands to lend him. He stimulated their avidity by paying his 90-day notes in full at the end of 45 days, and by circulating the notice that he would pay any unmatured note presented in less than 45 days at 100 per cent. of the loan. Within eight months he took in $9,582,000, for which he issued his notes for $14,374,000. He paid his agents a commission of 10 per cent. With the 50 per cent. promised to lenders, every loan paid in full with the profit would cost him 60 per cent. He was always insolvent, and became daily more so, the more his business succeeded. He made no investments of any kind, so that all the money he had at any time was solely the result of loans by his dupes.
Cunningham, 265 U.S. at 7-8.
8 U.S. Const. amend. V provides in pertinent part:
 nor shall private property be taken for public use, without just compensation.
The Fifth Amendment to the U.S. Constitution is made applicable to the States by the Fourteenth Amendment. Board of County Comm'rs of Muskogee County v. Lowery, 2006 OK 31, n. 9, 136 P.3d 639.
Appellant did not raise, in his petition or on appeal, the question of whether the UUPA violates Oklahoma's constitutional provisions concerning takings of private property, found in Okla. Const. art. 2, §§ 23 & 24. In Lowery, this Court determined that Oklahoma's eminent domain provisions provide private property protection to Oklahoma citizens beyond that which is afforded them by the Fifth Amendment to the U.S. Constitution, specifically in the context of taking property for private, as well as public, use. 2006 OK 31, ¶19, 136 P.3d 639.
9 Okla. Const. art. 5, § 7 provides:
[n]o person shall be deprived of life, liberty, or property, without due process of law.
10 U.S. Const. amend. V provides in pertinent part:
[n]o person shall  be deprived of life, liberty, or property, without due process of law;
11 U.S. Const. amend. XIV, § 1 provides in pertinent part:
 nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
12 Mullane set out the fundamental requirements for notice under the due process clause. The Court held:
[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.
Mullane, 339 U.S. at 313. The Court elaborated on the notice requirement specifically, further holding:
[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357; Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363; Priest v. Board of Trustees of Town of Las Vegas, 232 U.S. 604, 34 S.Ct. 443, 58 L.Ed. 751; Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520. The notice must be of such nature as reasonably to convey the required information, Grannis v. Ordean, supra, and it must afford a reasonable time for those interested to make their appearance, Roller v. Holly, supra, and cf. Goodrich v. Ferris, 214 U.S. 71, 29 S.Ct. 580, 53 L.Ed. 914.
Mullane, 339 U.S. 314-315.
13 Although the Oklahoma Constitution does not contain an equal protection provision like or similar to U.S. Const. amend. XIV, § 1, this Court has identified a functional equivalent of that clause in the anti-discrimination component of our state constitution's due process section, Okla. Const. art. 2, § 7. Gladstone, 2003 OK 30, n. 15; Fair School Finance Council v. State, 1987 OK 114, ¶54, 746 P.2d 1135. We have also identified an equal protection component in Okla. Const. art. 2, § 6. See Thayer v. Phillips Petroleum Co., 1980 OK 95, ¶¶12-15, 613 P.2d 1041.

Citationizer© Summary of Documents Citing This Document

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Citationizer: Table of Authority

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Name
Level

Oklahoma Attorney General's Opinions
 CiteNameLevel
 1984 OK AG 141, Question Submitted by: The Honorable Nancy Virtue, Oklahoma House of Representatives, The Honorable Herbert Rozell, Oklahoma State SenateCited
Oklahoma Supreme Court Cases
 CiteNameLevel
 1987 OK 114, 746 P.2d 1135, 58 OBJ        3282, Fair School Finance Council of Oklahoma, Inc. v. StateDiscussed at Length
 1990 OK 8, 788 P.2d 941, 61 OBJ        241, Kirschstein v. HaynesDiscussed
 1992 OK 22, 827 P.2d 1314, 62 OBJ        3115, Lincoln Bank and Trust Co. v. Oklahoma Tax Com'nDiscussed
 1992 OK 39, 829 P.2d 964, 63 OBJ        942, TXO Production Corp. v. Oklahoma Corp. Com'nDiscussed at Length
 1992 OK 110, 835 P.2d 97, 63 OBJ        2287, Oklahoma Tax Com'n v. City Vending of Muskogee, Inc.Discussed
 1992 OK 149, 844 P.2d 137, 63 OBJ        3190, Zaharias v. GammillDiscussed
 1993 OK 8, 846 P.2d 1107, 64 OBJ        440, Ross v. PetersDiscussed
 1993 OK 125, 861 P.2d 308, 64 OBJ        2971, Gianfillippo v. Northland Cas. Co.Discussed
 1938 OK 608, 85 P.2d 281, 184 Okla. 82, DUNNETT v. FIRST NAT. BANK & TRUST CO.Discussed
 1997 OK 37, 936 P.2d 916, 68 OBJ        1266, A-Plus Janitorial & Carpet Cleaning v. Employers' Workers' Compensation Assoc.Discussed
 1996 OK 139, 915 P.2d 359, 67 OBJ        1339, WASHINGTON v. STATE ex rel. DEPT. OF CORRECTIONSDiscussed
 1997 OK 103, 943 P.2d 1074, 68 OBJ        2550, LOCKHART v. LOOSENDiscussed at Length
 2001 OK 110, 37 P.3d 882, 72 OBJ        3672, KEATING v. EDMONDSONDiscussed
 1958 OK 290, 333 P.2d 314, HURST v. KRAVISDiscussed
 1933 OK 619, 27 P.2d 811, 167 Okla. 68, MORRIS v. MCLENDONDiscussed
 1967 OK 37, 425 P.2d 974, SINGLETON v. LePAKDiscussed
 1995 OK 108, 905 P.2d 778, 66 OBJ        3281, Hayes v. Eateries, Inc.Discussed
 2003 OK 30, 66 P.3d 442, GLADSTONE v. BARTLESVILLE INDEPENDENT SCHOOL DISTRICT NO. 30Discussed at Length
 2003 OK 103, 81 P.3d 662, TULSA COUNTY BUDGET BOARD v. TULSA COUNTY EXCISE BOARDDiscussed
 2003 OK 105, 82 P.3d 1000, IN THE MATTER OF THE APPLIC. OF THE OKLA. DEPT. OF TRANSPORTATIONDiscussed at Length
 2004 OK 7, 85 P.3d 841, FANNING v. BROWNDiscussed at Length
 2004 OK 19, 90 P.3d 546, MEHDIPOUR v. STATE ex rel. DEPT. OF CORRECTIONSDiscussed
 2004 OK 97, 109 P.3d 314, HOUSE OF REALTY, INC. v. CITY OF MIDWEST CITYDiscussed
 1996 OK 35, 913 P.2d 302, 67 OBJ        869, Quail Creek Golf v. Okl. Tax Comm.Discussed
 2006 OK 31, 136 P.3d 639, BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY v. LOWERYDiscussed at Length
 2006 OK 34, 148 P.3d 842, JACOBS RANCH, L.L.C. v. SMITHDiscussed
 2006 OK 86, 152 P.3d 855, HELDERMON v. WRIGHTDiscussed at Length
 2006 OK 100, 151 P.3d 132, MAY v. MID-CENTURY INSURANCE COMPANYDiscussed
 1996 OK 77, 921 P.2d 338, 67 OBJ        2242, U.S. Through Farmers Home Admin. v. HobbsDiscussed
 2008 OK 1, 176 P.3d 1204, DARROW v. INTEGRIS HEALTH, INC.Discussed at Length
 2008 OK 5, 177 P.3d 565, GENS v. CASADY SCHOOLDiscussed at Length
 2008 OK 83, 194 P.3d 1269, IN THE MATTER OF THE ESTATE OF JACKSONDiscussed at Length
 2008 OK 95, 196 P.3d 511, EOG RESOURCES MARKETING v. OKLAHOMA STATE BD. OF EQUALIZATIONDiscussed
 2009 OK 4, 212 P.3d 1158, TUFFY'S, INC. v. CITY OF OKLAHOMA CITYDiscussed
 2010 OK 16, 231 P.3d 645, DEPT. OF SECURITIES ex rel. FAUGHT v. BLAIRDiscussed
 2010 OK 51, 253 P.3d 38, RURAL WATER SEWER AND SOLID WASTE MANAGEMENT v. CITY OF GUTHRIEDiscussed
 2011 OK 22, 251 P.3d 741, DAFFIN v. STATE ex rel. OKLAHOMA DEPT. OF MINESDiscussed
 2011 OK 53, 260 P.3d 1251, THOMAS v. HENRYDiscussed
 2011 OK 82, 267 P.3d 106, DEPT. OF SECURITIES ex rel. FAUGHT v. WILCOXDiscussed
 2012 OK 2, 270 P.3d 155, WILSON v. STATE ex rel. STATE ELECTION BOARDDiscussed at Length
 1975 OK 10, 531 P.2d 1027, IN RE WILL OF DIMICKDiscussed at Length
 2013 OK 14, 297 P.3d 378, STATE ex rel. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA v. LUCASDiscussed
 2013 OK 25, 301 P.3d 413, SIMONSON v. SCHAEFERDiscussed at Length
 2013 OK 34, 308 P.3d 1041, CROSLIN v. ENERLEX, INC.Discussed at Length
 2014 OK 86, 339 P.3d 870, EDWARDS v. CITY OF SALLISAWDiscussed
 2015 OK 6, 345 P.3d 357, HORTON v. HAMILTONDiscussed
 2015 OK 35, 357 P.3d 470, CROWNOVER v. KEELDiscussed at Length
 2015 OK 53, 353 P.3d 529, LADRA v. NEW DOMINION, LLCDiscussed at Length
 1980 OK 95, 613 P.2d 1041, Thayer v. Phillips Petroleum Co.Discussed
 1979 OK 81, 598 P.2d 1193, MATTER OF HOME-STAKE PRODUCTION CO., ETC.Discussed
 2000 OK 76, 14 P.3d 52, 71 OBJ        2662, GEORGE E. FAILING CO. v. WATKINSDiscussed at Length
 1998 OK 92, 967 P.2d 1214, 69 OBJ        3242, City of Tulsa v. State ex rel. Public Employees Relations BoardDiscussed
 1999 OK 64, 984 P.2d 200, 70 OBJ        2100, Fent v. Oklahoma Capitol Improvement AuthorityDiscussed at Length
Title 12. Civil Procedure
 CiteNameLevel
 12 O.S. 2009, Pleading Special MattersCited
 12 O.S. 2012, Defenses and Objections - When and How Presented - By Pleading or MotionCited
Title 60. Property
 CiteNameLevel
 60 O.S. 176, Trusts for Benefit of State, County or Municipality - Approval - Expenditures - Bylaws - Amendments - Indebtedness - Bonds - ContractsDiscussed at Length
 60 O.S. 663, Payment or Delivery of Abandoned PropertyDiscussed
 60 O.S. 668, Unclaimed Property Fund - DepositsDiscussed at Length
 60 O.S. 651.1, Sums Payable on Travelers Check or Money Order Presumed AbandonedDiscussed
 60 O.S. 651.2, Outstanding Sums Presumed Abandoned - Record - Burden of Proof - Affirmative DefensesCited
 60 O.S. 661, Report of Abandoned PropertyDiscussed at Length
 60 O.S. 662, Notice and Publication of Lists of Abandoned PropertyDiscussed
 60 O.S. 664, Relief From Liability by Payment or DeliveryCited
 60 O.S. 665, Income Accruing After Payment or DeliveryCited
 60 O.S. 669, Authority and Responsibility for Control and Management of Unclaimed Property FundDiscussed at Length
 60 O.S. 670, Unclaimed Property - Determination of Amount - Payment of Amounts in ExcessDiscussed at Length
 60 O.S. 671, Actions upon Insufficient ReserveDiscussed at Length
 60 O.S. 672, Care, Custody, and Management of Reserve FundCited
 60 O.S. 674, Claim of Interest in Abandoned PropertyDiscussed at Length
 60 O.S. 675, Determination of Claims - Payment - Claims Against Mineral Owner's FundDiscussed
Title 71. Securities
 CiteNameLevel
 71 O.S. 1-101, Short TitleCited


339 F.3d 400
UNITED STATES of America, Plaintiff-Appellee,v.Victor Shunta Baker (01-6260); Henry Lee Tate, Jr. (01-6313); and Jason Brian Patterson (01-6314), Defendants-Appellants.
No. 01-6260.
No. 01-6313.
No. 01-6314.
United States Court of Appeals, Sixth Circuit.
Argued: March 25, 2003.
Decided and Filed: August 5, 2003. Pursuant to Sixth Circuit Rule 206

R. Leigh Grinalds (argued and briefed), ASSISTANT UNITED STATES ATTORNEY, Jackson, Tennessee, for U.S.
Jeff Mueller (argued and briefed), LAW OFFICE OF JEFF MUELLER, Jackson, Tennessee, for Victor Shunta Baker.
M. Dianne Smothers (argued and briefed), OFFICE OF THE FEDERAL PUBLIC DEFENDER, FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Henry Lee Tate, Jr.
Matthew M. Maddox (argued and briefed), MADDOX, MADDOX & MADDOX, Huntingdon, Tennessee, for Jason Brian Patterson.
Before: BOGGS and SILER, Circuit Judges; and STEEH, District Judge.*
OPINION
BOGGS, Circuit Judge.

1
Victor Shunta Baker, Henry Lee Tate, Jr., and Jason Brian Patterson appeal their sentences of over twenty years of imprisonment for interstate robbery and attendant firearms offenses. The district court enhanced their sentences under the guidelines for infliction of significant injury on a security guard that they shot. In addition, the district court departed upward from the guidelines because the guard's arm had to be amputated as a result of the injuries they inflicted and because of the particularly heinous and cruel nature of their conduct. Appellants contend that this upward departure impermissibly double-counts the injuries that they inflicted on the guard. Baker also argues that his lesser participation in the offense was not sufficiently reflected in his sentence. We affirm.

2
* On December 14, 2000, Patterson, Tate, Baker, and a fourth person, Vystoskia Tonve Pirtle, decided to commit an armed robbery. In preparation, they stole a truck and Baker retrieved a 12-gauge short-barreled shotgun to be used in the robbery. After looking in vain for the originally intended victim, they decided rob Brooksie's Barn restaurant in Jackson, Tennessee, instead. The gang had inside information on Brooksie's because Baker had worked at the establishment previously and Baker's mother had been a cook there for seventeen years. As Baker waited in the truck, the other members donned ski masks and broke into the restaurant. Inside, they encountered Arthur Dale Parker, a 65-year-old, uniformed, private security guard, who immediately raised his arms. Nevertheless, Parker was shot with the shotgun and kicked in the side and teeth.1 As he lost consciousness, Parker heard an order to shoot him should he move. When he stirred, he was shot at again, this time with his own .22-caliber long-rifle revolver, but was not hit. The resulting injuries were severe enough to threaten his life and to necessitate the amputation of his dominant, right arm. The gang members escaped with $5,803.72 in Brooksie's cash, checks, and credit card receipts, and Parker's gun. Within days the police tracked down, arrested, and obtained confessions from each of the perpetrators.

3
On February 26, 2001, a five-count indictment was filed in the district court. Each member of the gang was charged with (I) conspiracy to interfere with interstate commerce by robbery, in violation of 18 U.S.C. § 1951,2 (II) the completed interference, also in violation of 18 U.S.C. § 1951, (III) brandishing and discharge of the shotgun in the commission of the robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(iii)3 and (B)(i)4, or aiding and abetting the same, in violation of 18 U.S.C. § 2,5 (IV) discharge of the revolver, in violation of 18 U.S.C. § 924(c)(1)(A)(iii), or aiding and abetting the same, in violation of 18 U.S.C. § 2, and (V) possession of the revolver stolen from Parker, in violation of 18 U.S.C. § 922(j),6 or aiding and abetting the same, in violation of 18 U.S.C. § 2. Over the following months, plea negotiations resulted in guilty pleas to counts II and III by Patterson and Baker and counts II and IV by Tate in return for the dismissal of the other charges against them. The charges against Pirtle were otherwise disposed of and are not part of this appeal.

4
The pre-sentencing report contained the same calculation for each remaining defendant: The base offense level of count II, robbery, was twenty. U.S.S.G. § 2B3.1(a). This base level was enhanced by six for permanent or life-threatening bodily injury, U.S.S.G. § 2B3.1(b)(3)(C), by one for taking of a firearm, U.S.S.G. § 2B3.1(b)(6), and by three for assault on a law enforcement officer, U.S.S.G. § 3A1.2(b). This offense level was decreased by three for acceptance of responsibility, U.S.S.G. § 3E1.1, resulting in a total adjusted offense level of twenty-seven. The pre-sentence report also contemplated, but left to the discretion of the court, upward departures for intentional infliction of permanent or life-threatening injury, U.S.S.G. § 5K2.2, and unusually heinous, cruel, or brutal conduct, U.S.S.G. § 5K2.8. Each of the remaining defendants had a criminal history category of IV. This resulted in a guideline range of 100 to 125 months imprisonment. Counts III and IV, the firearms offenses, added consecutive 120 month sentences for each remaining defendant. U.S.S.G. § 5G1.1(a).

5
At the September 28 sentencing hearing, the district court disallowed the three-level enhancement under U.S.S.G. § 3A1.2(b), because Parker was not a law enforcement officer. However, the court also ordered a five-level upward departure to account for both the gravity of the injury inflicted upon Parker, under U.S.S.G. § 5K2.2, and the heinous nature of the defendants' conduct, under U.S.S.G. § 5K2.8. This resulted in a total offense level of twenty-nine and a guideline range of 121 to 151 months. On October 3, Patterson and Tate were sentenced to 135 months and Baker to 121 months on count II and each to an additional 120 months on counts III or IV. Before this court now are the timely appeals of these sentences.

II

6
We review the district court's sentencing decisions under a deferential standard. "A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence... was imposed as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. § 3742(a)(2). "Upon review of the record, the court of appeals shall determine whether the sentence ... was imposed as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. § 3742(e)(2). "The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and ... shall give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e). "[T]he sentencing court may impose a sentence outside the range established by the applicable guidelines, if the court finds `that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.'" U.S.S.G. § 5K2.0; see also Koon v. United States, 518 U.S. 81, 95, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). "We review decisions to depart from the sentencing guidelines for abuse of discretion." United States v. Valentine, 100 F.3d 1209, 1210 (6th Cir.1996) (citing Koon, 518 U.S. at 98, 116 S.Ct. 2035).

7
All appellants contend that the five-level upward departure under § 5K2.2 double-counts conduct already accounted for by the six-level enhancement under § 2B3.1(b)(3)(C). Section 2B3.1(b)(3) provides for an enhancement to a robbery sentence when the victim suffers physical injury.

8
If any victim sustained bodily injury, increase the offense level according to the seriousness of the injury[:] (A) Bodily Injury [,] add 2[;] (B) Serious Bodily Injury [,] add 4[;] (C) Permanent or Life-Threatening Bodily Injury [,] add 6[;] (D) If the degree of injury is between that specified in subdivisions (A) and (B), add 3 levels; or (E) If the degree of injury is between that specified in subdivisions (B) and (C), add 5 levels.

9
U.S.S.G. § 2B3.1(b)(3). Section 5K2.2 permits upward departure to sentences in general, based on a similar factual predicate:

10
If significant physical injury resulted, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the extent of the injury, the degree to which it may prove permanent, and the extent to which the injury was intended or knowingly risked. When the victim suffers a major, permanent disability and when such injury was intentionally inflicted, a substantial departure may be appropriate.

11
U.S.S.G. § 5K2.2.

12
The appellants' argument is bolstered by the language of § 5K2.0. "[P]hysical injury would not warrant departure from the guidelines when the robbery offense guideline is applicable because the robbery guideline includes a specific adjustment based on the extent of any injury." U.S.S.G. § 5K2.0. Rather, upward departures under § 5K2.0 should be confined to circumstances not already explicitly accounted for by the guidelines. For example, "because the robbery guideline does not deal with injury to more than one victim, departure would be warranted if several persons were injured." U.S.S.G. § 5K2.0. However, § 5K2.0 does not entirely close the door to additional consideration of circumstances already explicitly accounted for in the guidelines:

13
[T]he court may depart from the guidelines, even though the reason for departure is taken into consideration in determining the guideline range (e.g., as a specific offense characteristic or other adjustment), if the court determines that, in light of unusual circumstances, the weight attached to that factor under the guidelines is inadequate or excessive.

14
U.S.S.G. § 5K2.0.

15
Contrary to the government's contention, such extreme or unusual circumstances do not exist here. See, e.g., United States v. Myers, 66 F.3d 1364, 1373-75 (4th Cir.1995) (reversing enhancement under § 5K2.2 for physical injury where physical injury was already accounted for by § 2B3.1(b)(3)(C) and district court made no finding that the guideline enhancement was inadequate). Appalling as the defendants' conduct and its consequences were by the standards of any civilized person, it is no extreme outlier within the universe of robberies resulting in permanent or life-threatening injuries, for surely every such robbery is appalling. It was this universe of cases that the sentencing commission contemplated and determined to merit a six-level enhancement, not an eleven-level enhancement. If physical injury no worse than Parker's justified upward departure, it would be justified not merely in the unusual, but in many or even most robberies inflicting life-threatening or permanent injury. We therefore conclude that the five-level upward departure cannot be sustained under § 5K2.2.

16
The district court alternatively supported the same five-level upward departure under § 5K2.8:

17
If the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim, the court may increase the sentence above the guideline range to reflect the nature of the conduct. Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.

18
U.S.S.G. § 5K2.8.

19
The exact contours of conduct that is "unusually heinous, cruel, brutal, or degrading" must be defined by the case law. This court has upheld such upward departures on this basis in almost every case where the district court gave a specific justification. Compare United States v. Beal, 59 Fed.Appx. 60, 61-62 (6th Cir. 2003) (table) (upholding one-level upward departure under § 5K2.8 where assailant of federal employees threw feces at victims), United States v. Sizemore, 238 F.3d 425, 2000 WL 1871723, at *1 (6th Cir.2000) (table) (upholding four-level upward departure under § 5K2.8 where drug conspirators had tortured co-conspirator), United States v. Davis, 170 F.3d 617, 624 (6th Cir.1999) (upholding eight-level upward departure under § 5K2.8 where wire-fraud defendant intentionally inflicted psychic harm on elderly, sick telemarketing victims by being "loud, rude, obnoxious, [and] controlling"); United States v. Cross, 121 F.3d 234, 238 (6th Cir.1997) (upholding four-level upward departure under § 5K2.8 where drug conspirator "burn[ed] [victim] with ... hot scissors, pour[ed] rubbing alcohol on his wounds and mouth, and forc[ed] him to eat dog feces."), United States v. Wright, 119 F.3d 390, 393 (6th Cir.1997) (upholding four-level upward departure under § 5K2.8 where drug conspirator forced torture victim to ingest rubbing alcohol and dog feces), United States v. Phillip, 948 F.2d 241, 252-54 (6th Cir.1991) (upholding three-level upward departure under § 5K2.8 where defendant murdered his four-year old son by beating and burning him to death over a period of weeks), United States v. Harris, 943 F.2d 53, 1991 WL 165586 at *3 (6th Cir.1991) (table) (upholding ten- and twelve-level departures under § 5K2.8 where witness-tamperers had abducted witness and raped witness's wife), United States v. Patrick, 935 F.2d 758, 761 (6th Cir.1991) (upholding six-level upward departure under § 5K2.0 where kidnapper had attempted to "possess" three-year old victim indefinitely, citing § 5K2.8), and United States v. Cofer, 916 F.2d 713, 1990 WL 159149, at *5 (6th Cir.1990) (table) (upholding two-level upward departure under § 5K2.8 where defendant sexually abused children not only by taking sexually explicit photographs of them but also otherwise during the production of the photographs), with Davis, 170 F.3d at 630 (reversing upward departure under § 5K2.8 where wire-fraud co-defendant was "nice" to telemarketing victims); United States v. Surratt, 87 F.3d 814, 820 (6th Cir.1996) (upholding denial of upward departure under § 5K2.8 where government offered no evidence that child pornography recipient had harmed depicted children), United States v. Cook, 36 F.3d 1098, 1994 WL 514528, at *6 (6th Cir.1994) (table) (reversing upward departure under § 5K2.8 where wire fraud defendant inflicted no physical injury), United States v. Pelfrey, 996 F.2d 1218, 1993 WL 210716, at *2 (6th Cir.1993) (table) (holding excessive the equivalent of a thirteen-level upward departure under § 5K2.8 where stalker of a celebrity had "relentlessly" pursued victim), and United States v. Wilson, 958 F.2d 372, 1992 WL 39132 (6th Cir.1992) (table) (reversing upward departure under § 5K2.8 based only on the district court's unsupported statement that defendant's conduct was "extreme").

20
Under these precedents, the district court did not abuse its discretion in finding the defendants' conduct to be sufficiently heinous to depart upward. The defendants in the course of their robbery did not merely shoot Parker after he had raised his hands in surrender, inflicting permanent and life-threatening injuries on him. After they had shot and disarmed him, when all reasonable possibility of resistance on Parker's part had vanished, they continued to brutalize him. They kicked his wounded body until he passed out, in the process moving his body a distance of about twenty to twenty-five feet across the kitchen floor. When he came to, his stirring was sufficient for the defendants to shoot at him again with his own gun, apparently following up on their threat to kill him if he moved. If the shooter's aim had been better, this could very easily have been a murder case. These subsequent, gratuitous actions by the defendants were not accounted for in the offense level calculations and are sufficiently heinous to justify an upward departure. As to the degree of upward departure, we have upheld a broad spectrum of enhancements for an even more varied set of heinous conduct. The five levels granted by the district court here are not outside of this broad spectrum.7

21
A sentencing court's upward departure based on both applicable factors and factors incorrectly applied can be upheld if the departure was reasonable for the applicable factors alone.

22
If the party defending the sentence persuades the court of appeals that the district court would have imposed the same sentence absent the erroneous factor, then a remand is not required under § 3742(f)(1), and the court of appeals may affirm the sentence as long as it is also satisfied that the departure is reasonable under § 3742(f)(2). The reasonableness determination looks to the amount and extent of the departure in light of the grounds for departing. In assessing reasonableness under § 3742(f)(2), the Act directs a court of appeals to examine the factors to be considered in imposing a sentence under the Guidelines, as well as the district court's stated reasons for the imposition of the particular sentence. § 3742(e). A sentence thus can be `reasonable' even if some of the reasons given by the district court to justify the departure from the presumptive guideline range are invalid, provided that the remaining reasons are sufficient to justify the magnitude of the departure.

23
Williams v. United States, 503 U.S. 193, 203-04, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). See also, e.g., United States v. Chance, 306 F.3d 356, 396-97 (6th Cir. 2002); United States v. Hart, 70 F.3d 854, 862 (6th Cir.1995); United States v. Lowenstein, 1 F.3d 452, 454 (6th Cir.1993). In this case, we conclude that the sentence can be upheld on this basis, even if the district court did incorrectly consider the physical injury in departing. The departure would have been justified on the basis of § 5K2.8 alone. There is no indication in the record that the district court required both reasons to justify the total amount of the departure. Hence no remand is necessary.

III

24
In addition to the § 5K2.2 and § 5K2.8 issues raised by all defendants, Baker also contends that his sentence must be overturned on grounds specific to him. He argues that his sentence was unjustified because his conduct was less culpable than that of his co-defendants in that he, as the driver, never entered Brooksie's and did not physically participate in the abuse of Parker. Therefore he should have received a less severe sentence. This argument fails for at least three reasons. Baker cites no binding precedent for reversal of an otherwise valid sentence on the basis that more culpable co-defendants were not punished more severely. Such precedent as he does cite points in the opposite direction. United States v. Parker, 912 F.2d 156, 158 (6th Cir.1990) (reversing downward departure ordered by the trial court on the basis that an equally culpable co-defendant had received a lower sentence); United States v. Romano, 970 F.2d 164, 167 (6th Cir.1992) (finding "no merit in defendant's claim that his sentence is excessive when compared to the sentences received by his codefendants"); see also Cross, 121 F.3d at 238 (holding that the "guidelines do not require any distinction between principals and accomplices"). Second, while Baker was less culpable in some respects, in others, he was more so. It was Baker who retrieved the gun used to perpetrate the crime and provided what the gang expected would be the means of escape. It was Baker who, the court below found, selected Brooksie's as the site based on his familiarity with the establishment. And it was Baker whose conduct resulted in the crippling, not of a random stranger, but of a long-time co-worker of his own and his mother's, a man with whom he presumably had a pre-existing relationship. Finally, Baker, though sentenced within the same range as his co-defendants, did receive a sentence at the bottom of the range, rather than the middle as they did, resulting in a reduction of incarceration by more than a year and reflecting a slightly lower degree of culpability.

25
Baker also argues that his sentence should not have been enhanced for the abuse of Parker, as he could not have foreseen it. Baker bases his conclusion that he could not have foreseen the abuse on the following statement of the district court:

26
It was reasonably foreseeable that this victim would be shot. Now, it's not as foreseeable that he would be kicked. You didn't have any way of knowing, I suppose that they would kick him, but things like that happen, and when you are in a partnership with criminals, sometimes your partners do bad things and you end up getting punished for things that your cohorts did.

27
JA 274 (emphases added). To quote the court is to refute Baker's interpretation. The court merely stated that the kicking was not as foreseeable as the shooting and that Baker did not know that it was going to occur. Nevertheless, the law does not require absolute foreknowledge and a lesser degree of foreseeability is still sufficient. The quote concludes with the finding that such a sufficient degree of foreseeability still existed.

IV

28
For the foregoing reasons, we AFFIRM all sentences.

Notes:

*
 The Honorable George C. Steeh, United States District Judge for the Eastern District of Michigan, sitting by designation

1
 While his accomplices testified that they either saw Patterson fire the shots or heard him confess to firing the shots, Patterson denied this. The trial court made no findings of fact on this issue and needed to make none

2
 "Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both." 18 U.S.C. § 1951(a)

3
 "[A]ny person who, during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime ... if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years." 18 U.S.C. § 924(c)(1)(A)(iii)

4
 "If the firearm possessed by a person convicted of a violation of this subsection ... is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years." 18 U.S.C. § 924(c)(1)(B)(i)

5
 "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 18 U.S.C. § 2

6
 "It shall be unlawful for any person to receive, possess, conceal, store, barter, sell, or dispose of any stolen firearm or stolen ammunition, or pledge or accept as security for a loan any stolen firearm or stolen ammunition, which is moving as, which is a part of, which constitutes, or which has been shipped or transported in, interstate or foreign commerce, either before or after it was stolen, knowing or having reasonable cause to believe that the firearm or ammunition was stolen." 18 U.S.C. § 922(j)

7
 We also note that Patterson's and Tate's sentences would still have been within the guideline range under a four-level upward departure and Baker's even under a three-level upward departure. So even a one- or two-level reduction from the five-level upward departure actually imposed would not necessarily have resulted in a different sentence


980 A.2d 294 (2009)
STATE
v.
BRUCE.
No. 09-217.
Supreme Court of Vermont.
July 9, 2009.
Appeal Disposed of Without Published Opinion or Memorandum Decision Affirmed.