dissenting:
Today the majority extends its judicial review to decide an issue which is not before the Court. Although I agree with the Court’s conclusion that the 1984 amendment to 51 O.S.1981, § 152(6)(d) must be given prospective effect, I must respectfully dissent from the majority’s sua sponte decision to remand the matter for the trial court to determine whether the Hospital is a public trust because the Kluvers have waived review of the issue.
The majority claims the trial court never had an opportunity to determine whether the Hospital was a public trust. Why? *1085Because the issue was never raised by the parties in the trial court.
From the early stages of the litigation, the Kluvers treated the Hospital as a political subdivision. In the First Amended Petition and Second Amended Petition, the Klu-vers allege that “defendant Weatherford Hospital Authority d/b/a Southwestern Memorial Hospital (hereinafter the ‘Hospital’) is a public trust of the City of Weath-erford established to fund and operate a hospital located in Custer County, Oklahoma.” They further asserted on numerous occasions that the letter they sent to the president of the hospital prior to filing suit was a claim “notice” as required by 51 O.S.1981, § 156(B) of Oklahoma’s Political Subdivision Tort Claims Act. In its Motion for Summary Judgment, the Hospital stated that it was uncontroverted that it was a public trust of the City of Weatherford. Moreover, in an affidavit attached to the motion, Ronnie Walker, the president of the Hospital, stated that the Hospital was created by the Weatherford Hospital Authority and is operated as a public trust. The Kluvers did not refute either of these factual statements in their response.
The majority opinion states that “[ujnfor-tunately, no evidence has been [was] taken on the question.” It is evident why no evidence was taken; the Kluvers admitted that the hospital was a public trust.
Not only did the Kluvers fail to present any evidence to discredit the Hospital’s facts, but they also made no effort to argue that the Hospital did not meet the definition of a public trust under the Act. Other than their assertion that the 1984 amendment to § 152(6)(d) should apply retroactively, the Kluvers made no attempt to prove that the Hospital was not a political subdivision under the Act. Indeed, the fact that they argued for retroactive application of the amendment, which specifically excludes hospitals operating under a trust authority from being considered a public trust, indicates that they otherwise agreed that the Hospital was a public trust.
After reviewing the briefs and pleadings, considering the evidence, which included “depositions, affidavits, answers to interrogatories, and other matters of record,” and hearing arguments of counsel, the trial court granted the Hospital’s summary judgment. The Order and Judgment stated:
“IT IS THE FINDING OF THE COURT that said defendant’s motion for summary judgment should be and hereby is sustained upon the grounds that the plaintiffs have failed to comply with the requirements of the Oklahoma Political Subdivision Tort Claims Act, and plaintiffs’ claim against said defendant is therefore barred.”
Implicit in this ruling is an adjudication that the Hospital is, in fact and law, a political subdivision covered by the Act. Without such a finding, the court could not have determined that the notice requirements of the Act applied. In their Petition in Error, the Kluvers do not assert error in the trial court's inferred finding that the Hospital is a public trust, and therefore, a political subdivision under the Act. Neither do they argue such issue in their briefs. In fact, at page 31 of their brief in chief, the Kluvers state unequivocally that Hospital is a public trust. Their brief reads:
“The Hospital is a public trust, and its beneficiary is the City of Weatherford, Oklahoma (First Amended Petition). Under this definition then [referring to 51 O.S.1979, § 152(6)], the Hospital would presumably fall within the terms of the Act.”
Thus, throughout the litigation and this appeal, both parties have assumed that the Hospital, as a public trust, is a political subdivision and covered by the Act. Their arguments have centered on how the Act should apply in this case, and the issue has never been raised until now. This Court has no business raising the issue for the Kluvers at this late stage in the litigation, nor should we address the issue which was neither presented to the trial court nor raised on appeal.
This is all the more important because the issue of whether a hospital operating as a public trust is a political subdivision *1086was properly raised in both cases cited by the majority, Roberts v. South Oklahoma. City Hospital Trust, 742 P.2d 1077 (Okl.1986) and Fowler v. Norman Municipal Hospital, 810 P.2d 822 (Okl.1991). Indeed, the dispositive and focal issue in Roberts was whether South Community Hospital Trust d/b/a South Community Hospital was actually a public trust covered by the Act. We found the trust to be illusory and denied statutory immunity to it under the Act. The plaintiff in Roberts initially raised the issue and argued it successfully, whereas the Kluvers have failed to even mention it in the case at bar. Following promulgation of Roberts, neither party has made even a hint or a suggestion as to why or how Roberts is applicable to this case.
The plaintiff in Fowler argued both to the trial court and this Court that Norman Municipal Hospital was not a political subdivision under the Act. Relying on Roberts, we reversed the trial court’s summary judgment for the hospital, holding that it was not a political subdivision. However, like Roberts, our holding in Fowler does not apply in the case at bar because the issue of the hospital’s status in Fowler was raised at the trial court level and on appeal. Thus, the majority’s conclusion that we must remand this case for a factual determination is erroneously grounded on cases where the issue was properly before the Court. The matter before us is not such a case.
In addition, even if a factual determination of status as a public trust/political subdivision was necessary in this case, the record indicates sufficient facts for the trial court to have decided the issue. Again I note that the Kluvers wholly failed to refute the Hospital’s contention and supporting evidence that it was a public trust. Where the Kluvers have had an opportunity to present evidence on the issue and failed to produce anything, we should not send the matter back to the trial court for “overs.”
Finally, the majority mistakenly concludes that Roberts established a standard list of factors to look for in determining whether a hospital is truly a public trust. In Roberts, the Court recited the relevant evidence which indicated that South Community Hospital was merely an illusory trust. Although Roberts provides an excellent example of proper analysis of the issue in an appropriate case, it does not establish a standard to be used in making the determination, nor does it mandate trial courts or this Court to sua sponte address the issue where the plaintiff fails to raise it.
In an effort to justify its sua sponte decision to raise the issue of Hospital’s status and remand for a determination, the majority cites several cases which came after Roberts, supra. However, none of these cases support the majority's position.
First, Chapman v. Pawnee Municipal Hospital, No. 66,182 (Okla. April 18, 1989), was an unpublished opinion which began by noting that:
“[t]he dispositive issue presented by the appellant, Leta Mae Chapman (Chapman), is whether the appellant, Pawnee Municipal Hospital (Hospital), is a valid public trust within the purview of the Political Subdivision Tort Clams Act (Act), 51 O.S.Supp.1979 § 151, et seq.” (Emphasis added)
Incidentally, in Chapman, the paperwork disclosed it was a true public trust and a one cent sales tax had been imposed on the citizens of Pawnee to fiscally support the hospital qua public trust.
In both Cox v. South Community Hosp., No. 65,729 (Feb. 21, 1989) and Gibbs v. South Community Hosp., No. 65,061 (Feb. 21, 1989), this Court was aware of the nature of South Community Hospital’s claim to be a public trust. Roberts had considered the question as to South Community Hospital’s status under the act and determined it to be an illusory trust. This Court being aware of the illusory nature of the hospital’s claim, we naturally remanded the Cox and Gibb cases pursuant to our decision in Roberts.
For the same reason, Williams v. Stout, (No. 63,888) (Feb. 21, 1989), was also remanded pursuant to Roberts. South Community Hospital was a party to the case, and the appellant, Williams, argued that *1087South Community Hospital was not a public trust under the Governmental Tort Claims Act.
As for Gurley v. Memorial Hospital of Guymon, 770 P.2d 573 (Okl.1989), the question presented to this Court was whether the purchase of liability insurance by the hospital abrogated the need to provide notice of claim under the Act. The only language in the opinion which even remotely hints at the issue of the hospital’s status as a public trust is found in footnote 3 which follows:
“3 The record contains an affidavit of the hospital administrator averring that the Hospital is owned and operated by Texas County through its Board of Control. Gurley does not question the Hospital’s status as a political subdivision, nor does the record reveal any facts to support such an allegation. See, Roberts v. South Oklahoma City Hosp. Trust, 742 P.2d 1077, 1079 (Okla.1986).” (Emphasis mine)
Contrary to the majority opinion, this footnote does not indicate that the Court should raise the issue for the parties. Thus, neither of the cases cited by the majority support its decision to remand this cause for determination of an issue which the majority is raising for the first time.
The majority further holds that this controversy presents a question of law which the Court may review by a de novo standard on the grounds that an appellate court has “plenary independent and non-deferential authority to reexamine a trial court’s legal rulings,” citing Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991). What the majority fails to note is that the holding in this case was directed to the federal Circuit Courts of Appeal in reviewing a federal district court’s determination of state law. Moreover, the plenary appellate authority discussed is derived from a federal statute. This rule of law does not apply here.
The majority also relies upon James B. Beam Distilling Co. v. Georgia, — U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), for the proposition that “[i]f a rule of law is applied to one litigant, then it should apply to other litigants similarly situated.” I first note that the opinion rendered did not have a majority of votes but rather was a plurality opinion (Opinion by Souter, J., and joined in by Stevens, J.). Moreover, the full holding in the plurality opinion was that “when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata.” At-, 111 S.Ct. at 2448. (Emphasis added) Surely, raising an issue in the Petition in Error for this Court to address would be a sufficient procedural requirement to negate the rule in this case. See Rule 1.16 of the Rules of Appellate Procedure in Civil Cases, 12 O.S.1991, Ch. 15, App. 2, which has the force of statute. 12 O.S.1991, § 990A.
Even if the rule of law set forth in James B. Beam Distilling Co. v. Georgia was applicable in the case at bar, it would have no effect because, as shown above, the litigants in the instant case are not similarly situated as the litigants in either of the cases upon which the majority relies.
I note that there may be some question as to whether the issue decided by the majority is one of fact, one of law or a mixed question of law and fact. The majority seems to treat it asv one of fact. Nevertheless, if the issue is one of fact, then the Kluvers have confessed it by alleging it in their pleadings and assuming it in their arguments. If the issue is one of law, then the Kluvers have waived it by failing to assert it before the trial court and upon appeal. Either way, this Court should not take an adversarial stance and raise issues which at this time are totally foreign to the case.
Nor can this Court say this case was in the “pipeline”, i.e., governed by the ruling in Roberts and its progeny. As hereinbe-fore set forth, the issues in this ease and Roberts are entirely different. This Court, and only this Court, attempts to make the issues related.
I would affirm the trial court’s judgment in favor of the Hospital.
*1088I am authorized to state that Vice Chief Justice LAVENDER and Justice HAR-GRAVE join with me in the views expressed above.